Ivana Bacik: You can't be a bit pregnant and you can't legislate for a bit of X case
THE expert group has confirmed the obvious. Legislation with regulations represents the best way to implement the European Court of Human Rights ABC judgment. It is "constitutionally, legally and procedurally sound". Primary legislation would provide for the drafting of regulations to deal with detailed matters such as changing medical practices. The legislation would also repeal or amend the 1861 Act which criminalises abortion in this country.
The report helpfully sets out a blueprint for Government as to the content of legislation to clarify the X case test. It addresses key issues, including the specific risk of suicide, by saying a psychiatrist could be required to assess this. As Minister for Justice Alan Shatter confirmed yesterday, it would be legally impossible to legislate without including suicide risk. The X case test was confirmed by the people in two referendums in 1992 and 2002. You can't legislate for a bit of that test – it would be like being 'a bit' pregnant.
Despite this, anti-abortion activists have argued against legislating for suicide risk. They say it will lead to 'abortion on demand'. This is legally wrong. The Supreme Court test for 'real and substantial risk to life' arising from risk of suicide is far stricter than the 'mental health' ground for abortion under the British 1967 Act, to which anti-abortion activists refer.