Legislating for Article 40.3.3: De Londras on The Role and Duty of Parliamentarians

Author: Professor Fiona de Londras, Durham Law School, Durham University

Legislating to give effect to Article 40.3.3: Some Important Points for Parliamentarians to Bear in Mind

We now know that there will soon be legislation to give effect to the very limited right to access an abortion in Ireland as flows from Article 40.3.3 of the Constitution. There is no need to revise here the legal and factual background bringing us to this position; these are thoroughly accounted elsewhere. The purpose of this post is to reflect on the role of parliamentarians in bringing this legislation in. It became abundantly clear during the Oireachtas committee hearings last week that, while some parliamentarians had attended the hearings in order to learn more about the issues from the experts drawn from various fields, others had pre-determined views about the desirability of legislating and were unlikely to have their minds changed. That is perhaps to be expected in the context of an issue such as abortion on which many people hold strong opinions. The purpose of this post is not to try to change minds but rather to outline some important points that parliamentarians might bear in mind as the legislative process gets underway. These are, of course, in addition to recalling that abortion is a real issue touching real people’s lives and our parliamentarians ought to lead in ensuring it is discussed in a respectful manner. In sum, this post suggests that there are two things TDs and Senators ought to bear in mind: they act as parliamentarians, not as medics; and they ought to be constitutionalists rather than provocateurs.

1. Be Parliamentarians, not Medics

It is not at all uncommon for parliaments to legislate in relation to matters that require particular specialisms to actually carry out (think of pollution, pharmaceuticals or energy for example). In such cases, the role of parliament—put relatively bluntly—is to ensure that the law outlines principles and creates structures to govern the matter at hand, but does not go into such exacting detail as to make the legislation vulnerable to changes in knowledge or practice in such a way as to require its constant revision. This does not constitute abdication in any way; it is merely a reflection of the fact that primary legislation is not the appropriate place for every detail to be laid down in particularly technical areas. Medicine is such an area. In the context of abortion, we have heard over the past week parliamentarians ask about degrees of certainty in diagnosis and for medical evidence relating to the propensity of particular conditions that might constitute life-threatening conditions for pregnant women. This hints at what seems to be a quite undesirable possibility that legislation might attempt to lay down in excruciatingly detailed legal provisions matters that are properly seen as being questions of clinical judgment and practice by reference to the highest levels of internationally peer-reviewed research and best practice. Legislation is for legal principle; not for medical guidelines.

Thus, while the test for constitutionally permissible abortion (most likely taking the form of an exception to a restated general prohibition on abortion) should be contained in legislation, beyond the words used in the Supreme Court (“as a matter of probability”) it would seem unwise to try to suggest that clinicians ought to be satisfied that there is a 20, 30, 40% probability of death without a termination before they can proceed to offer a woman the option of an abortion or early delivery. Medical judgement ought to be trusted as it usually is, and the fact that more than one practitioner will almost certainly have to agree before an abortion is offered should abate any fears about practitioners not being sufficiently rigorous in their analysis. Equally under no conditions ought there to be some kind of list in primary legislation as to what medical conditions might ‘qualify’; nor should the legislature be overly prescriptive as to the specialisms to be involved in decision-making.

These are the kinds of matters that regulations—drafted in conjunction with relevant experts and relatively easily revised (when compared to primary legislation) when best practice or research suggests they ought to be—can deal with most effectively. It is vital that members of the Oireachtas remember that they act here as parliamentarians, not as medics. All the more so those who have no medical qualifications…

2. Be Constitutionalists, not Provocateurs

Abortion is a topic in relation to which one can easily make a splash, certain to ingratiate some and alienate others. However, provocation is of little utility when the discussion around abortion takes place within such narrowly drawn confines as Article 40.3.3 lays down. In particular, three provocative claims ought to be resisted at all times.

Legislation is Unnecessary

Unless a constitutional amendment is introduced to remove any possibility of access to abortion whatsoever (which seems unrealistic) legislation to give effect to the right as it exists is the best way to satisfy the ECHR, not to mention to give due respect to the Constitution itself. It is true to say that the ECHR decision does not strictly speaking require legislation; it leaves it (not unproblematically) to individual states to decide on the extent to which abortion will be available in domestic law. However where domestic law provides for abortion to any extent this must be effectively accessible. In Ireland the lack of clarity combined with the ‘chilling effect’ of the Offences against the Person Act 1861 meant that it was deemed not to be effectively accessible. Thus, clarity around access is required if we are to remove ourselves from breach of the Convention. Legislation is the logical way to achieve this and, indeed, the only way to repeal the relevant provisions of the OAPA 1861.

The ‘Suicide’ Ground ought to be excluded

There is a right to access abortion where as a matter of probability there is a real and substantial risk to the life of a pregnant woman that can only be averted by termination of the pregnancy and where the foetus is not viable (viable foetuses ought to be delivered in order to give effect to the equal right to life of the unborn). The source of the risk to the life of the mother can be ‘suicidality’. Any legislation that would attempt to proceed without the suicide ground would most likely leave Ireland in violation of the Convention as well as leaving the parliament effectively in contempt of the Constitution. Excluding suicide is not popularly or legally mandated. In my view there ought not to be a different process (apart from the different specialisms involved) but it appears likely that there will be some difference in process where suicidal ideation is concerned. If this is so onerous as to be effectively inaccessible it may well leave Ireland still in violation of the ECHR.

This will lead to ‘abortion on demand’

There is no conceivable way in which this change will lead to so-called ‘abortion on demand’ as a matter of law. The introduction of any such regime is simply incompatible with the Constitution and could not be achieved without a future constitutional referendum permitting it. References to changes in culture are no doubt obtuse references to the fear that introducing any abortion in Ireland will make it more likely that a constitutional referendum to permit abortion on broader grounds would succeed in the future, but this is quite simply irrelevant to the present act of legislating. Furthermore, any future referendum to this effect would need to be proposed by the legislature (which seems unlikely in the near future given the furore over legislating the extremely limited right to access abortion as currently exists) and if passed would reflect the sovereign will of the People which is, after all, the basis upon which the current right to access abortion exists in the first place.