Legislating for Article 40.3.3: Brady on Legislating for Suicide

Author: Paul Brady, Barrister

Why should we legislate for abortion on grounds of risk of death by suicide? In reviewing the various answers given to this question in recent months, I have been struck by the tendency among commentators to frame the justification of legislation in terms of various generic procedural claims. There is little or no attempt to make a substantive case for legalised abortion in cases of suicidal intent. This has resulted in a curious chain of arguments, which effectively manages to stifle discussion of the real issue, that is, whether or not it is a good idea to legislate for abortion on the grounds of suicide.

To analyse how this vanishing trick works one needs to begin at the end of the chain where the argument is at its most formal or legalistic. At the Committee hearings on 10th January 2013 by Aodhán Ó Riordáin TD stated that:

We have to legislate for the threat of suicide to the life of a mother because that is the very basis of the X case for which we are legislating. The Constitution states under Article 34.4. 6°, “The decision of the Supreme Court shall in all cases be final and conclusive.” We have had two referenda to underwrite and stand over that decision made in 1992. We have to legislate for suicide. (Emphasis added)

There is no basis in Irish law for this argument. Any Government, faced with a judicial interpretation of the Constitution that it believes to be problematic, can promote a bill to amend the Constitution to overturn the disfavoured effect of the judgment. This happened with bail, with cabinet confidentiality and, according to some, with the new article on children’s rights.

Consequently the necessity emphasised by Deputy Ó Riordáin and others must have some other basis. Many point to the outcomes of the referendums in 1992 and 2002 as providing that basis. Such claims assume the existence of a fundamental democratic principle according to which a Government may not put a question to a referendum if a similar question has been defeated on two previous occasions in a 20 year period. (Interestingly, this principle applies even if the last referendum was more than 10 years ago, but it does not preclude the asking of the same question twice within a period of about 18 months – à la Nice and Lisbon.) My question for anyone who finds this argument plausible is this: if the second divorce referendum had not passed in 1995, would a third referendum have been opposed even in 2006 on the basis of the same ostensibly determinative two-strikes rule against constitutional referendums? (This is not an unrealistic scenario. The 1995 referendum passed on knife-edge margin of 0.28%, i.e. by less than the percentage of spoiled votes.) I cannot conceive of anyone answering yes to that question in good faith. Yet this two-strikes principle is routinely employed to strike down any proposal that critiques the merits of the X Case ruling regarding suicide.

What about the related argument that the 1992 and 2002 referendum results manifest the wish of “the People” that risk of suicide remain as a ground for abortion? Anyone familiar with the debate and the substance of what those referendums proposed knows how untenable this assertion is. Those who nevertheless stand by this proposition should at least accept its logical corollary – that in 2002 “the People” also expressed their wish not to replace the Offences against the Person Act 1861 (which was part of what was proposed and rejected at that time).

What of the argument that the Government has decided to legislate and this must now set the terms of debate? This is no justification: it is simply a restatement of that for which justification is sought. One wonders whether the solemn respect which some commentators accord this Government decision could be credible to anyone not already persuaded of the soundness of the X Case ruling.

Moving along the chain of reasoning, so to speak, what of the argument that we must legislate for the X Case so to comply with the A, B and C v Ireland decision? This argument also avoids an assessment of the merits of allowing abortion on the ground of risk of suicide. It also fails on its own terms. Nothing in the European judgment precludes Ireland from revising its substantive law on abortion so long as individual women have accessible and effective procedures to establish clearly and in a timely manner their legal entitlements. The judgment creates no obligation to provide these procedures by means of legislation that leaves the X Case ruling untouched.

The reality of what was a political (and hence ultimately a moral) choice by the Government, not something that they “must” do, is further obscured in the public mind by politicians and commentators who justify that choice by reference to the report of the Expert Group. After all, it is said, was it not the Expert Group which effectively recommended a combination of legislation and regulation to comply with the ABC judgment? But this latest step in the chain of procedural-type arguments deprives us yet again of a merits-based argument for legislating in line with the X Case. The Expert Group’s own report makes clear that it could not even mention the option of reviewing or overturning the X Case ruling because it was expressly ordered by the Minister for Health to work within “existing constitutional provisions”.

And so, at bottom, we are left with nothing but the “say so” of the Minister for Health, as communicated to the Expert Group on some unspecified date, to justify the Government’s decision to legislate for abortion on the grounds of suicidal intent.

I should note, of course, that just as none of the arguments I have considered count as a substantive argument for legislating in line with the X Case, none of what I have said offers a substantive argument against doing so – but nor does it pretend to. Indeed my primary point is that we will not get to even consider such arguments so long as we are constrained by this proxy debate based on implausible claims asserted as general principles of constitutional law and democracy.

As to the merits of the legislation being posed, the critical question remains this: does the Government believe that a proposal for abortion on grounds of suicidal intent should be justified by reference to what judges have said in the past or to what psychiatrists are saying in the present? Given the discrepancies between the expert psychiatric testimony given to the Health Committee on 8th January 2013 and the assumptions about the nature of and proper treatments for suicidality in pregnancy underlying the judgments of the majority in the Supreme Court in X, it is surely time that the Government stopped hiding behind the false necessities of appeals to ABC, or the Expert Group, or past referenda, or respect for the Supreme Court and actually provided some evidence for the empirical proposition that in certain circumstances an abortion may be the “only” appropriate way to “treat” suicidality in a pregnant woman. We have heard a lot in recent days about evidence-based medicine. Is it too much to ask for evidence-based legislation also? And if, as a matter of realpolitik, we cannot reasonably expect such an approach even when the constitutionally protected right to life is at issue, when can we?