Thursday 16 August 2018

Article 40.3.3: A legal and medical minefield

Legal conflicts and medical uncertainties are inevitable as long as we retain the Eighth

Timebomb: The X Case in 1992 brought protests to the street and referenda amending aspects of Ireland's abortion laws. Photo: Tony Gavin
Timebomb: The X Case in 1992 brought protests to the street and referenda amending aspects of Ireland's abortion laws. Photo: Tony Gavin
Dearbhail McDonald

Dearbhail McDonald

Abortion is a complex and difficult issue. It has always been thus.

But regardless of whether the electorate votes to remove Article 40.3.3 from the Constitution or whether citizens elect to retain the perennially divisive Eighth Amendment, the issue will never truly go away.

Let me explain why.

The 1983 referendum that introduced a constitutional ban on abortion was passed by 67pc of voters.

But the seeds of the amendment's downfall were contained in its ambiguous wording which obliges the State to give due regard to the equal rights to the expectant mother and her unborn as far as practicable.

This ignored the obvious fact that where rights collide, a hierarchy will prevail.

The Eighth Amendment is and was resoundingly silent as to when human life should be deemed to begin for the purposes of enjoying legal protection.

The word unborn was itself a new term, prompting many to warn of the dangers of giving constitutional protection to the unborn without clarifying its meaning and effect.

The late Peter Sutherland, then Attorney General, warned the government that the provision was a "time bomb" waiting to happen, one which set up the inevitable contests we have witnessed for the last 35 years.

The X case, involving the plight of a suicidal 14-year-old girl pregnant as the result of a rape, was the first test of the Eighth.

It led to a Supreme Court ruling that where there is a real and substantial risk to the life, as distinct from the health of the mother, including the risk of suicide, then abortion is lawful in Ireland.

The ruling appalled the pro-life movement which did not want any exception, especially a mental health one, being carved out of the new constitutional provision.

In the X case, the late Supreme Court judge Mr Justice Niall McCarthy berated the government for its "inexcusable failure" to introduce appropriate abortion laws.

It would take until 2013, 30 years after the 1983 poll, before a flawed law purporting to give effect to the X case was passed.

In 1992, a referendum was held to remove the new suicide clause.

Glaring contradiction

But the electorate, which supported a near complete ban on abortion in 1983, refused to do so. On the same day, the Irish public approved the right of women to travel outside of the country for abortion and access information about lawful abortion services outside of the State.

In doing so, the Irish public embedded a glaring contradiction into the Constitution, sanctioning abortion by granting information and overseas travel rights - and granting limited abortion rights for suicidal women and girls at home - but banning the procedure here.

By the late 1990s, the public was agitated by other matters which urgently called for legal clarity of the status of the unborn.

This was against the background of then rapid developments in assisted human reproduction (AHR) technologies including IVF and surrogacy which to this day are unregulated in Ireland.

In 1996, the Constitution Review Group called for laws to regulate the provision of abortion in line with X and to include matters such as the definition of the unborn, appropriate legal protection for doctors, time limits and certification for when there was a real and substantial risk to life of women.

The CRG said laws were needed to ascertain whether the Eighth had an impact on AHR technologies. Their plea was ignored.

In 2002, the Fianna Fáil/PD government held another referendum to remove the suicide clause and provide a definition of the unborn that made it clear that Article 40.3.3 did not protect embryos outside of the womb.

Once again the electorate refused to remove the suicide exception and, with that decision, the proposed statutory definition of the unborn fell too.

In 2005, the Commission on Assisted Human Reproduction produced a report which once again pointed to the lack of clarity surrounding the meaning of the word unborn amid increased public concerns about the lack of regulation of assisted reproduction clinics.

No legislation was forthcoming.

It is ironic that the Irish public was bounced, in many respects, into creating a constitutional ban on abortion amid concerns a runaway judiciary would use constitutional rights, including privacy, as a Trojan horse to introduce a liberal abortion regime.

The opposite prevailed: lawmakers devolved all responsibility for the Eighth Amendment to the judicial arm of government.

It would be impossible to rehearse the alphabet soup of legal actions, including the frozen embryo case, generated by the Eighth and the refusal of politicians to legislate for it.

But a few bear mention as they point to the inevitability of future conflicts as past ones.

One is a case that is significant not because it reached the European Court of Human Rights, but precisely because it did not.

The D case involved a woman whose pregnancy had resulted in a diagnosis of fatal foetal abnormality who travelled abroad for a termination.

The case was not admitted to the Court of Human Rights because the Irish government argued that it was "an open question" in Irish law as to whether the Eighth would permit a lawful abortion if, in exceptional cases like Miss D's, it could be established that there was no realistic prospect of the foetus being born alive.

The European court agreed with the government that there was at least a tenable argument that the balance between the constitutionally enshrined rights to life of mother and unborn could shift in favour of the mother where the unborn suffered from an abnormality incompatible with life.

In defeating Miss D's application to bring her case to Strasbourg, the government effectively conceded the principle of lawful termination for fatal foetal abnormality pregnancies whilst ignoring the plight of women who experienced them.

After Fine Gael and Labour swept to power in 2011, an Expert Group was established to set up a legal framework to give effect to the now 20-year-old X case, following a trio of cases that fell before the ECtHR in 2009 known as A,B and C.

But weeks before the Expert Group reported in 2012, Ireland was convulsed by the death of Savita Halappanavar, a watershed moment in Ireland's abortion history. We know that a combination of factors led to this tragic maternal death. What we can't ignore is a clear finding by an independent inquiry that a lack of legal and clinical guidance was a major factor.

The government in the earlier A, B and C case said that where there is a risk to a mother's life, there is a "clear and bright blue line" provided by Irish law that is neither difficult to understand nor apply. But that has been comprehensively dismissed by the vast bulk of medics who say that the Eighth has a chilling impact on their practice.

In December 2014, 20 lawyers mused for several days in the High Court about the fate of a foetus whose heart was still beating inside its dead mother.

A consultant neurologist who treated the woman at the hospital where she was pronounced dead sought legal advice, but none was forthcoming. So he and two colleagues found themselves in a room trying to figure out Article 40.3.3.

Few people in 1983 could have envisaged a time when dead women could serve as cadaveric incubators, where the entire human genome could be sequenced and, critically, edited.

They could not contemplate ectogenesis, the development of embryos in artificial conditions outside the uterus that has been successfully trialled in the animal kingdom.

They could not anticipate that the solution to Ireland's abortion problem, exporting it overseas, would be circumvented by technology and scientific advances that allow women to purchase and import medical abortion pills illegally online and undertake the risks of a self-induced termination in her own home without medical supervision, our new "backstreet".

There has been some concern that permitting access to lawful termination before 12 weeks gestation would lead to the eradication of conditions such as Down syndrome.

But pre-implantation genetic screening and diagnosis, the next medico-legal frontier, may render much of those prenatal arguments moot as more prospective parents opt to have their embryos profiled before implantation, in effect taking such debates outside of the womb where the Supreme Court has ruled (in the frozen embryo case) embryos do no attract protection.

The question of how and when personhood begins, and it what circumstances it attracts protection, lies at the heart of the medico-legal monster we created in the Eighth.

And whether you are pro-life, pro-choice or struggling in between, what is undeniable is that the Article 40.3.3 has proved to be a crude and unworkable mechanism for all.

Dearbhail McDonald is former Legal Editor of Independent Newspapers and has written extensively on the history of the Eighth Amendment.

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