Sunday 26 May 2019

Fiona De Londras: No justification for excluding suicidal women from new abortion legislation

IN recent months, a number of commentators have argued that abortion legislation ought to not cover cases where the risk to the pregnant woman's life emanates from suicidal ideation. However, under a legal analysis, this argument lacks justification.

Article 40.3.3 of the Constitution recognises the equal right to life of pregnant women and the unborn. This means that abortion is generally prohibited in Ireland but is constitutionally permissible where three conditions are met: (i) there is a real and substantial risk to the life of the woman, (ii) in all probability that risk can be averted only by termination of the pregnancy, and (iii) the foetus is not viable such that abortion (rather than early delivery) is the appropriate means of termination.

As should be readily apparent, abortion is thus permitted in Ireland only in extremely limited circumstances.

The controversy over suicidality relates to the fact that in the X Case the Supreme Court held that a risk of suicide is a risk to the life of the pregnant woman, which can fulfil the first prong of this test.

Under the Constitution, the Supreme Court ultimately decides on the meaning of the Constitution, as it did in X.

This does not mean that we are at the mercy of judicial coups. Where a government considers the interpretation to be inappropriate or somehow unworkable, or to have been wrongly arrived at, an amendment to the Constitution can be proposed to the people, who can then approve or reject it by means of referendum. This is how dialogue over interpretation happens within our constitutional system.

Following X, governments twice invited the people to reject the inclusion of suicide as something that could constitute a real and substantial risk to the life of a pregnant woman; these proposals were rejected twice.

Thus, at a basic level, the two organs with responsibility for determining what our Constitution says and means – the court and the people – consider that suicide ought to be a basis for legal abortion in Ireland where the three-pronged test is fulfilled.

This should put an end to claims that the Supreme Court did not reach the decision in an adequately rigorous way because, even if that were the case, the decision has been endorsed by the people.

Excluding suicide from the legislation would not change the fact that it is part of the constitutional landscape. This is an important point: if the legislation were to say nothing about suicide, the constitutional right would still exist.

Rather than undo X, excluding suicide from the legislation simply leaves pregnant women who suffer a real and substantial risk to their lives as a result of suicidal ideation in legal limbo; possessors of a constitutional right that is so difficult to exercise as to be illusory.

It is precisely this kind of legal limbo that the European Court of Human Rights criticised in A, B & C v Ireland.

In that case, the court concluded that Ireland could decide for itself when abortion might be permitted, but that if it was permitted there must be a way to access it.

It was, thus, the lack of any clear mechanism for a woman or indeed a doctor to determine whether abortion would be lawful in her circumstances that put Ireland in breach of the convention. This meant that clarification was required and the Government has decided to clarify by means of legislation.

To satisfy our international obligation, that legislation must actually resolve the difficulty: it must put in place an effective, accessible system to determine whether, in any particular case, a woman falls into the very limited constitutional right to access abortion in Ireland.

If suicide is left out of the legislation, it simply will not do this. Furthermore, if suicide is included but subjected to processes that are unduly onerous we will also remain in violation of the convention.

The legislation must, therefore, be comprehensive and put in place a workable scheme for every situation in which a woman might be entitled to choose abortion under Article 40.3.3.

The legal arguments against including suicide in the abortion legislation do not stand up to scrutiny. These are often supplemented by medical or pseudo-medical arguments as to whether abortion is an effective treatment for suicidal ideation.

In any particular case that is a decision that doctors would take under prong (ii) of the constitutional test outlined above. It is not something that is clearly material to the inclusion of suicide in the legislation. Politicians cannot be doctors; they must be legislators and allow doctors to do their work. In legislating, parliamentarians have a duty to exhibit fidelity to the Constitution, to sovereign will expressed in referendums, and to Ireland's international obligations, all of which require the inclusion of suicide in the legislation.

Fiona de Londras is a professor of law at Durham University and the founder of www.humanrights.ie

Irish Independent

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