Thursday 20 October 2016

Our Constitution is not to be overridden by ministerial whims

Conor Power

Published 09/07/2016 | 02:30

Independent TD Mick Wallace Photo: Gareth Chaney Collins
Independent TD Mick Wallace Photo: Gareth Chaney Collins

The unsuccessful proposal by Mick Wallace TD (pictured) to legislate for fatal foetal abnormalities was misguided as a matter of constitutional law. The bill sought to extend the scope of the Protection of Life in Pregnancy Act 2013 to permit the termination of pregnancies in tragic cases of fatal foetal abnormalities. An identical amendment had been rejected twice previously.

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This amendment, while laudable in its aim, is not permissible under the current constitutional wording of the right to life of the unborn, as set out in Article 40.3.3. That compels the State to guarantee and, as far as is practicable, to defend the right to life of the unborn.

The core issue is whether a foetus with a fatal abnormality is covered by Article 40.3.3, which was inserted into the Constitution by the Eighth Amendment. This issue has not yet been considered by the courts.

In Roche vs Roche (2010) (the frozen embryos case), the Supreme Court accepted that unborn life begins upon implantation of a fertilised egg in the womb. Ms Justice Denham noted that the "concept of unborn envisages a state of being born, the potential to be born, the capacity to be born." Mr Justice Geoghegan referred to "future existences". These statements have been singled out to justify an interpretation that excludes a foetus with a fatal abnormality from article 40.3.3, such that it cannot live outside the womb.

Ms Justice Denham detailed a useful history of the Eighth Amendment and concluded that it was designed to restrict abortion. She stated that "(An) unborn under 40.3.3 is established after an embryo is implanted." Isolated from the facts of the case, this could be seen as a clear assertion that all foetuses are covered. But the Roche case was determining the issue as regards frozen embryos; no mention was made of foetuses with fatal abnormalities.

While there is a logicality in asserting that a foetus which cannot be born alive is not life, that cannot be the answer to the issue. For better or for worse, the purpose and wording of the Eighth Amendment was to protect life in the womb, within the context of the equal right to life of the mother.

That equal right to life of the mother is not relevant to this issue because any risk to the mother's life is covered by the 2013 Act. Issues of the practicability of a termination seem misplaced. Such a consideration is pertinent in such a sad case as PP vs HSE (2014), where the mother was dead. The High Court decision allowed her to die with dignity and, as an indirect consequence, her very immature foetus would also die.

A foetus with a fatal abnormality is not dead; it has life. That such a foetus is unborn is manifest. On a literal constitutional interpretation, it is therefore unborn life. Given the purpose of the Eighth Amendment, a purposive interpretation also favours the foetus with a fatal abnormality being covered. There seem to be only two bases for asserting that Article 40.3.3 is not applicable: that the foetal life at issue is not human or that the Article must be read as only referring to a particular type of life; thus it is either not life or is not human life.

To suggest that because the foetus cannot survive independently and is not protected as life is to limit the purpose of the Eighth Amendment to the protection of a foetus that will become independent life. While that is not illogical as a political position, it contradicts the purpose of the Amendment, which is to protect life within the womb for the time being, subject to strict limits. To put it starkly, a born person with a life-limiting terminal condition, even an immediate one, may be allowed to die, but cannot be killed.

This includes the tragic case of a newborn that was previously a foetus with a fatal abnormality and which has no prospect of survival, notwithstanding that it is alive now. The wording of the bill itself accepted that the foetus was "unborn life" within the meaning of the 2013 Act.

On the other hand, to say that a foetus with a fatal abnormality is not human seems distasteful, undignified and probably wrong.

The legal discussion is framed by the terms of Article 40.3.3, under which there is no real basis for asserting that a foetus with a fatal abnormality is not human.

At present, any proposal to permit the termination of a foetus with a fatal abnormality would be unconstitutional. The Constitution creates a mandatory obligation that: "The Oireachtas shall not enact any law which is in any respect repugnant to this Constitution or any provision thereof."

There is good reason for this. Changes to the Constitution can only be introduced by a referendum. Needless to say, unconstitutional laws have unwittingly been passed. But for legislators to attempt to enact a law that is knowingly unconstitutional is another matter altogether. To do so would be an abuse of the legislative process and a denigration of the rule of law.

For a cabinet minister to do so in the face of legal advice from the Government's own legal adviser undermines the authority of the executive. A modern constitutional democracy cannot operate by wishing the law to be different. The legal advice is: this issue is for the people to decide, not parliament.

Conor Power is a Senior Counsel

Irish Independent

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