Academics from NUIG, TCD and UL, the Irish Council for Civil Liberties, the Law Library and a former Supreme Court judge will offer their thoughts to politicians today.
THE OIREACHTAS COMMITTEE on Health and Children today held the second of three days of public hearings on the government’s proposed new legislation on abortion, following its decision to legislate to allow abortion within the terms of the X Case ruling.
The second day of hearings – split into three sessions – included representations from legal academics from UL, NUI Galway and the Law Library (9:30am); the Irish Council for Civil Liberties (11:45am), and from TCD professor William Binchy and former Supreme Court justice Catherine McGuinness (2:45pm).
Good morning – and thanks for joining us for day 2 of this week’s Oireachtas committee hearings on abortion. Having yesterday been briefed on the thoughts of the medical profession, today it’s the turn of the legal eagles to offer their input on the government’s forthcoming legislation.
Today’s hearings will be slightly shorter than yesterday’s – broken into three sessions instead of four – simply because there are fewer people to speak.
Today’s first session, between 9:30 and 11:30, will hear from Jennifer Schweppe of the University of Limerick, Ciara Staunton from NUI Galway, and Dr Simon Mills of the Law Library.
Later, at 11:45am, we’ll hear from two representatives of the Irish Council of Civil Liberties, and then from Professor William Binchy (TCD) and the retired Supreme Court justice Catherine McGuinness.
Right now, committee chairman Jerry Buttimer is confirming that the Bar Council – whose chairman was due to appear alongside the ICCL – has withdrawn from today’s hearings. Here’s why.
It’s Gavan Reilly here for the first two hours, by the way. Good morning. Feel free to leave your thoughts, questions and comments in the box below – we’ll try to address any inquiries you might have.
We begin with Jennifer Schweppe from the University of Limerick, whose specialities include Ireland’s current abortion laws. She says her submission (which will be publicly published later) is based on the supposition that the government is legislating for Article 40.3.3 of the Constitution (that is, the X Case) and doesn’t proposed to discuss the merits of the Supreme Court ruling in 1992. “X is the law, there’s no room for debate on this issue,” she says, specifically referring to the threat of suicide, adding that it is “insulting to women” to suggest that they will “flock” to doctors feigning mental illness solely to seek an abortion.
Uh-oh. Some more gremlins in the legal system. Let’s hope that’s not a harbinger of how today’s events will go.
Senator Jim Walsh (FF) is raising concerns that Schweppe’s opening comments are opinions and not legal fact, but is ruled out of order by chairman Jerry Buttimer. We’ve had the experts move down one seat, to avoid the seat with the dodgy microphone.
Ironically enough, Schweppe’s baby bump (she is herself pregnant) has brushed off the switch on the microphone and ended up turning it off. A brief giggle ensues before we get going again.
Under the current law, doctors only need to be satisfied that there is a substantive risk to the life of a woman as a probability, Schweppe says, adding that she agrees with the Irish Medical Council in arguing that conscientious objection should be permitted (though only where alternative practitioners are okay).
She adds that termination of pregnancy should be permitted in circumstances where the child is not viable outside the womb – whether because of foetal abnormality or extreme immaturity. ”Just because we talk about a termination of pregnancy, it doesn’t mean we’re talking about abortion,” she clarifies.
Moving on, Schweppe speaks about the capacity of a young person to consent to medical treatment – and says abortion should be no different to any other medical procedure in this regard. The law regarding 16 and 17 year olds is “woefully unclear”, she says, commenting that the Law Reform Commission has proposed reform in this regard and believes the reform should be brought hand-in-hand with the abortion legislation.
“I’m not a mother,” Schweppe says, alluding to her own heavy pregnancy. “I am a pregnant woman.”
She also points out that the current legal setup means it’s not currently a crime to kill a child who is in the process of being born, and that this is one example of the law which needs adjustment in the frame of the current debate.
Next up is Ciara Staunton of the law school at NUI Galway, who opens with a comment that regulations on their own (without legislation behind them) are not substantial enough to offer the necessary legal clarity. She says it should be clarified from the outset that Ireland does provide for limited legal abortion, under its current provisions, and says the 1861 legislation criminalising abortion (and doctors who carry it out) needs to be repealed.
It is very clear that a real and substantial risk to life does not necessarily mean an immediate and inevitable risk, she says. It does not have to be proven that there is an immediate and definite prospect of death, and so therefore abortion is actually legal at certain points in most pregnancies.
Staunton points out that a foetus is unviable if its mother has died – and so the new rules must first look at the right to life of the mother, and then secondary the life of the unborn. The regulations should dictate that the life of the mother should be saved first, and then make every effort to save the life of the unborn.
She adds that risk of suicide cannot be extracted from another risk of life, because the current legal setup does not automatically mean a suicide risk is grounds for abortion. Right now the threat of suicide is only grounds for abortion if the threat is itself caused by the pregnancy and can only be resolved by that pregnancy being terminated, she says.
Staunton also agrees with the Medical Council’s stance that a conscientious objection should be permitted, but only in places where the pregnant woman still has access to treatment via an alternative doctor. The woman should always be able to get the treatment she needs, and an individual doctor’s stance should not impact on that.
Here’s Dr Simon Mills from the Law Library, who says his own submission is actually a proposed draft Bill which takes into account the Supreme Court rulings in the X Case and other cases. (That would do a lot of the work for the government!)
Dr Mills points out that until 2011 he was a part-time GP, and so he has first-hand medical experience in this particular field; he holds an MSc in medicinal ethics in which his thesis dealt with legislation for abortion in a pluralist society.
“I adopt no position, one way or another, on the question of abortion,” he says, commenting that much public discourse treats the issue of abortion as a debate solely between pro-life and pro-choice, where the former means opposition to all abortion, and the latter means support for abortion on demand. “This is an inaccurate model,” he insists. Views are more complex than that, but characterising the debate so simply has consistently frustrated attempts to resolve the topic so far.
It’s probably a three-sided debate: there’s also a moderate position attracting support from each of the pro-life and pro-choice sides. Mills says he believes this “substantial overlap” actually represents the majority of the public.
Mills says the reason his submission takes the form of a draft Bill is because it would be otherwise silly to demand legislation, so as to deliver legal clarity, without offering suggestion on the form that any new laws could actually take.
Mills is explaining the content of his draft Bill. Section 3 restates the legal ban from 1861, though changing the prison terms, but with explicit clauses in which such an abortion could be permitted. This includes as a consequence of other medical treatment, where there is a threat to life (including the threat of suicide), and the termination of an inevitable miscarriage. It also provides a legal basis for conscientious objection, and for the designation of specific locations where terminations could be carried out. The High Court would have the power to deal with disputes.
He says his legislation would not necessarily win universal approval, but it is a good “first stab” at trying to find an acceptable solution.
With Mills finishing, we move to questions, and to Fianna Fáil’s Billy Kelleher TD. He asks about fatal foetal abnormality, and wants clarification from Jennifer Schweppe, who appeared to suggest that the termination of pregnancies which have fatal abnormalities would not need a constitutional amendment or referendum.
Caoimhghín Ó Caoláin TD (Sinn Féin) also has a question for Schweppe. Given that laws can never keep up with every possible circumstance, he wants Schweppe to elaborate on the prospect of what should be done in circumstances. He also asks for clarity from Ciara Staunton on the ‘legal test’ for when an abortion is currently legally available, and commends Simon Mills’ legal drafting skills for the work he has put into his submission, before revisiting Kelleher’s question of fatal foetal abnormality, and wants elaboration on how aborting such pregnancies could be permissible under the constitution as it currently stands.
Ciara Conway TD (Labour), the vice-chair of the committee, also comes in with a question for Schweppe, and specifically on the capacity of a young person to consent to medical treatment. She’d like Schweppe to “tease out” the current difficulties in this regard, and how a lack of clarity impacts on underage crisis pregnancies. “Are we going to have another gaping hole in our legislation with regard to sexual health and reproductive rights?,” Conway asks, if we were merely to repeal the laws from 1861 criminalising abortion.
Seamus Healy TD (ULA) asks the panellists for clarity on what they believe the current legal position to be, and whether they support the notion of pursuing the ‘legislation plus regulations’ model preferred by the expert group.
Jennifer Schweppe of UL will answer first. On fatal foetal abnormalities, she believes where the “foetus has no capacity to survive outside the womb”, it does not fall under the definition of ‘life’ as is contained in the current constitution. “I don’t think that Article 40.3.3 applies there,” she says, though perhaps the legislation should clarify this. However, she adds, the constitution certainly does not permit termination if the child can live outside the womb, even only for a finite and brief period. Because there is a prospect of life outside the womb, the pregnancy is therefore a viable one. But if the foetus has no capacity to be born live, she says, the constitution doesn’t apply to it.
Schweppe continues with the issue of the legislation not being able to apply to all circumstances, and discusses cases such as where the mother does not have the legal capacity – whether for age or mental reasons – to submit to treatment. In this case, the best medical practice should be followed.
This leads her onto Ciara Conway’s question about consent, to which Schweppe says the Law Reform Commission’s report on this regard is important and recommended reading. There is a presumption that a 16 or 17-year-old can consent to medical treatment, but this is (possibly) only a defence for a doctor is facing criminal sanction and not a civil case.
The issue of children in care deserves a little more attention, she says. A child in the care of their parents can be brought to another jurisdiction but it is much less clear if such a right exists when a child is in the care of the state.
Finally, to Healy, Schweppe recaps the X Case ruling and says the threat to the mother’s life is established as a matter of probability (and not certainty).
Ciara Staunton from NUIG makes a supplementary comment and says legislation should always try to take account of hypothetical cases which have not yet come up. We don’t want another few decades of legal questions after a second modern equivalent to the X Case, she says.
Addressing Ó Caoláin’s question on the link of suicide to pregnancy, the fear of floodgates is “completely unfounded” and suggests some sort of collusion between patient and doctor to secure an abortion, she says. The X Case criteria, where abortion is only legal if the suicide risk is as a direct result of the pregnancy and can only be addressed by ending the pregnancy, means a broader mental health complaint is not valid grounds for an abortion and cannot be.
Under the current legal circumstances, Staunton says, the ethical guidelines allow a doctor to perform an abortion but the law does not allow a woman to have one. This is at the core of what the new laws need to address. She concurs with Schweppe about whether an unviable pregnancy can be terminated within the current constitution (it can, she says) and about the current stance.
Mills steps in to say, supplementary to the previous answers, “it is a mistake to limit our consideration of this to X”. “The X Case was about X… that’s all the court was asked to decide. One can think of recent cases, where if they had come before the courts, one wonders what they may have been decided,” he says. “It is simply because of our proximity to the United Kingdom” that we have so few landmark cases that have made it into Irish courts, he argues – the availability of terminations in Britain means fewer cases have been forced into Irish courts.
Mills: “The meaning of life” in the constitutional sense only applies to circumstances where there is no capability of a foetus surviving, even for a moment, outside the womb. The baby that will survive for a few moments outside the womb, once born.
There is something disturbingly utilitarian [...in the current constitution] in that it comports an obligation to be born, only to suffer and die.
Any registered medical practitioner who has a conscientious objection should be entitled to refuse, Mills says, but again, this should only be in the case whether
Finally, Mills says, “where there is no capacity to be born alive, then Article 40.3.3 does not confer a constitutional right to life. it doesn’t lessen the moral seriousness of a termination, it doesn’t lessen the values we may hold about the question of termination. What it does tell us … is that such foetuses and embryos do not attract protection under Article 40.3.3.”
Back to more questions, and here’s Senator Colm Burke (FG). She wants to know what the panellists think about the number of doctors who should make a determination about whether an abortion is legal or to be advised. Should two obstetricians, who have no psychological training, be able to make a call if the issue relates to the threat of suicide? And what do you do when only one consultant is on duty but the law requires two to sign off on a decision to terminate?
He’s followed by Robert Dowds TD (Labour), who says one of the things the medics speaking yesterday wanted was legal clarity, and how they “cried out for legislation to protect them in their work”. He asks if the constitution, as it currently exists, currently allows legislation which is comprehensive enough to address their needs.
Senator Jillian van Turnhout (Ind) has a series of questions – specifically regarding why some issues have been isolated from others – while Denis Naughten TD (FG) asks Mills if his medical career brought him into contact with cases of suicidal intent, and Staunton’s interpretation of the suicide test – and what would happen if a rape victim was so heavily pregnant that her child is viable outside the womb, but the woman otherwise has the right to an abortion for reasons of suicide?
Senator John Crown (Ind) raises the prospect of ‘short-cutting’ the formula of having consultants sign off, and what you do in everyday Ireland where there are too few consultants around to fulfil the requirement (or to allow someone exercise a conscientious objection). He says while the lawyers make a good point on foetal abnormality, the courts would also consider the question of ‘personhood’ (as distinct from ‘life’).
NUIG’s Ciara Staunton comes first and discusses the possibility of a suicidal intent in cases where the child is viable. In this case the doctor’s duty is to terminate the pregnancy (by inducing labour) and then doing what is necessary to safeguard the life of the child.
To Dowds, she says the current constitutional law is broad enough to allow legislation because it only requires there to be a real and substantial risk to the mother’s life as a matter of probability and not as a cast-iron certainty. To Van Turnhout, she says she doesn’t agree with the insertion of legal time limits beyond which abortion is permitted or not, because doing so is only necessary if legalising abortion on demand.
Simon Mills says he agrees on the matter of time limits, though he can envisage some circumstances where it may be comforting to some parts of society. On the threat of suicide being treated any differently to any other threat, he says the reason suicide is treated separately is because diagnosing a suicide threat requires different medical training and speciality than diagnosing a purely medical risk.
Addressing Crown’s concerns about the shortage of consultants. “One may have to reflect on the question of the number of experts who would give an opinion where, for example, there is only one expert available,” Mills concedes.
Mills: A foetus which is delivered prematurely in order to improve its chance of survival is entirely different to a case where a child is delivered solely to die, and where it has absolutely no prospect of any survival outside the womb.
He says, in addition, that the Constitution’s definition of ‘life’ (and how it does not apply to cases where an embryo will never survive outside the womb) is the decision of the courts – articulated by the now-chief justice Susan Denham – and not just the opinion of the three witnesses here today.
The case the academics are referring to, by the way, is Roche v Roche in 2009, a case that concerned the a separated woman who wanted to use frozen embryos – pre-fertilised by her estranged husband – to be used to bear more children. In her ruling, Susan Denham – who is now the chief justice – determined that the constitutional provision on ‘life’ does not apply to a body or entity which has no prospect of life – even for a moment – outside of the womb itself.
Mary Mitchell-O’Connor TD (FG) wants an assurance that Mills’ legislation would not “open the floodgates” and lead to cases where women can feign mental illness and secure an abortion. Mills says he has shown his legislation to many other legal academics, none of whom have identified such a flaw.
Schweppe says she has read Mills bill and agrees. Nothing is guaranteed in law, she says, but the constitution obliges everyone to respect and vindicate the life of the unborn, and there is nothing in any legislation that can affect that life – including the possibility where a medical practitioner will terminate pregnancies.
Staunton chips in once more to say a lawful abortion can only take place where the suicide risk is directly caused by the pregnancy and can only be addressed by ending that pregnancy.
Catherine Byrne TD (FG) has a question for Schweppe, and refers to her earlier distinction that she is not a mother yet. People say, “I’m having a baby,” she says – so when does a baby become a baby?
Schweppe says using emotive language like “mother” and “baby” colours the debate, and that describing an embryo as a ‘baby’ does not lend itself to a conclusive debate.
Time for questions from non-members…
Sen Ivana Bacik (Labour) wants to know about whether there should be separate procedures where fewer consultants’ opinions are needed in an emergency. She points out that the ECHR ruling in A, B and C – which is why we’re all here! – demands “accessible” treatment and this may not be the case if three consultants are needed but aren’t available.
Terence Flanagan TD (Fine Gael) asks Schweppe if she is “advocating a lower test” to eligibility for abortion, and wants Mills to clarify whether he believes the constitution offers no protection whatsoever to an embryo which cannot survive outside the womb.
Senator Jim Walsh (FF) is quoting Lord David Steele, “the father of abortion in Britain”, who said he never envisaged that his criteria to allow abortion would lead to so many being carried out. She points out to Schweppe that the ECHR used language like “mother” and “child” in place of “pregnant woman” and “foetus”.
Aodhan Ó Ríordáin TD (Labour) has particular praise for Simon Mills’ draft bill, and says legislators are being asked to differentiate between an unsustainable outside the womb and one where life will exist, however temporary. Is a referendum needed to ensure that clarification? And is it normal in law to have a conscientious objection?
Billy Timmins TD (FG) discusses Schweppe whether the constitution should define when life begins, and quips that Mills is “just what the doctor ordered” with his positive approach to the issue. Discussing the risk of suicide, Timmins asks how a risk of suicide will be measured in practice – and the possibility where some psychiatrists will be more likely to give a positive answer and others negative.
Peadar Toibín TD (Sinn Féin) asks if a “real and substantial threat” to the life of a mother can be quantified in any way. He says 3 per cent of cases identified as having a suicide risk actually result in suicide – is that a strong enough measure to proceed?
Jennifer Schweppe is first, and answers about special treatment in emergencies. Bacik makes “a compelling case” in that regard, she says. She says a fatal foetal abnormality is usually detected early on in the pregnancy and it won’t arise after the usual 24-week barrier beyond which abortions are not permitted.
Ciara Staunton says doctors don’t deal in percentages, but make a judgement in each case that comes before them. They should be trusted to do so, she says.
On the question of whether suicide is grounds for an abortion, Staunton says the public has twice rejected referendums to exclude it. She is also reluctant to compare Ireland’s proposals to the UK, and says the UK’s figures for abortions cannot be compared to Ireland’s because the constitution simply doesn’t allow for a ‘floodgates’.
She also tells Terence Flanagan that a paper he has cited – written by Staunton regarding the A, B and C case – is not appropriate to today’s hearings, where she was invited to speak as a legal expert on the impact of X. Flanagan is seen smiling as he gets his response.
Simon Mills says his proposed Bill allows for the possibility that two doctors may be unable to agree on whether an abortion is carried on.
Addressing Flanagan, Mills says he took a different view to yesterday’s hearings than Flanagan did. Every doctor he’s heard says clarity is needed, and any attempt by Flanagan to suggest otherwise is simply wrong. Flanagan raises an eyebrow in apparent puzzlement at Mills’ comments.
Mills also affirms that doctors see themselves as having two patients in front of them. Does he believe that a foetus with lethal abnormalities has any rights? The Supreme Court has told us that the ‘born alive’ test is an essential index of the right to life.
Addressing Walsh’s arguments on a floodgate, Mills says the way to avoid one is simple: Don’t introduce the same legislation that Britain did.
Mills continues, addressing Ó Riordáin: His bill, as it exists, is consistent with the Supreme Court’s interpretations on 40.3.3 which includes the fact that the definition of ‘life’ does not apply to a foetus with no chance of life outside the womb. He adds that it is legally routine to include a conscientious objection clause, but comments that this legislation is ‘sui generis’ – a one-of-a-kind legal, moral and political matter.
We’re onto closing remarks now. Ciara Staunton begins with her point that the legislation must not only address X, but what goes beyond X. There is no demand or appetite to produce legislation that does not account for eventualities which lead to another Supreme Court case and more legal questions.
“There should be no floodgates. Suicide is not a catch-all for women who want abortion on demand,” she says, again affirming that a risk of suicide is only grounds for an abortion when the suicide is directly linked to the pregnancy and its continuance.
Jennifer Schweppe says the legislation reflects the current legal situation. “There is no question to answer as to whether suicide should justify the termination of a pregnancy.” To question it stigmatises mental health and takes away from the medical practice of psychiatry, she says.
She summarises that the legislation should declare the Supreme Court’s previous findings that a foetus with fatal abnormalities that render it incompatible with life outside the womb, and says a referendum would be needed to change the constitution if foetuses which would be destined for death, but which could live briefly, were to be terminated.
She concludes by echoing Staunton’s point that the law presents an opportunity to be proactive, and to plug legal gaps which have already been highlighted. Should a husband have the right to know if his wife is seeking a termination? This is just one issue that needs clarification; another is third-party foetal assault. Both, and more, could be addressed in this legislation.
Simon Mills begins his summary with an apology if his previous remarks caused offence to Terence Flanagan – and addresses Denis Naughten’s question about whether he came across any suicidal pregnant women while as a GP. He did, he says, but in either case he did not need to determine whether they were suicidal as a direct cause of their pregnancy, as would fall within the rules in X.
He says himself, Schweppe and Staunton all approached today’s hearing independently, but it is interesting and informative that all three have coherent and overlapping views – the vast majority of which are represented in Mills’ draft legislation.
His legislation deals with conscientious objection, closing off abortion on demand and any floodgate, deals with late-term pregnancies, and protects doctors acting in good faith. “I believe we have a starting point,” he concludes.
And with that, we’re done. The main talking point there was nicely summarised by Mills at the end: three legal academics, who all approached the matter separately, independently believe the constitution already permits abortion in cases where the foetus will not survive outside the womb, according to a Supreme Court ruling in 2009 handed down by the judge who is now Ireland’s Chief Justice.
All three also advocated that the legislation be comprehensive to avoid the need for future X-style cases where the Supreme Court determines a right which isn’t already provided for in legislation.
You’d have to wonder if the draft Bill put forward by the Bar Council’s Simon Mills will be used by the government as a starting point from which a formal law could be drafted.
With that, this is Gavan Reilly signing off, leaving you in the hands of Aoife Barry for the presentation from the Irish Council for Civil Liberties from 11:45am.
We’re on to the second hearing of the day with the Oireachtas Health committee, where they will be addressed by the Irish Council of Civil Liberties. The ICCL members speaking will be Mr Stephen O’Hare and Mr Alan DP Brady
The Bar Council was due to attend, but the invitation was not formally accepted. It decided not to send its chairman David Nolan because it would be impossible to adequately reflect the variety of opinions among barristers.
One of the people present in the public gallery is former Irish Times editor Geraldine Kennedy, to whom Deputy Jerry Buttimer extended his welcome.
This session has been condensed into one hour, and the opening statements begin with ICCL member, and practising barrister, Alan DP Brady.
Brady says they want to discuss settled law, and the opportunity that this session presents for the committee and Oireachtas to improve Ireland’s human rights position, particularly regarding the issue of foetal abnormality.
Brady is outlining the current settled law, discussing the ABC vs Ireland case and the expert group report, saying the ICCL endorses and welcomes the findings in the report.
They particularly endorse chapter five and the four principles set out in that. There are some aspects within that which involve an either/or choice, which Brady might deal with in questioning, he says.
Brady’s second point, regarding the opportunity to improve Ireland’s human rights position, is discussed, with Brady saying Ireland could get “out in front of” its human rights commitments, rather than responding to a finding that it is in breach of them.
The decision for women regarding foetal abnormality in pregnancy is “made for them” with a 19th century criminal law, says Brady. He says that the ECHR has not found that Ireland is in breach of article 3 of the European Convention of Human Rights in regard to foetal abnormality, the ICCL believes we are in breach.
If you’d like to find out more about the European Convention for Human Rights, click here.
It is at least arguable that if legislation is passed pproviding for foetal abnormality, that it is constitutional. It is the ICCL’s view that ultimately whatever legislation is passed here is going to find itself in the Supreme Court one way or another, says Brady, because of this specific issue.
First up with a question is Senator McSharry, asking how you could reconcile protection for the unborn child in the Irish constitution with article 3 in the European Convention of Human Rights.
Deputy Caomhghín O Caoláin says that what legislators are being asked to do is provide for the findings in the ABC case in a way that is constitutionally sound. “Where foetal life cannot be born alive and cannot survive outside the womb, can it really be said that in these circumstances the right to life to the unborn is constitutionally equal to the right of the woman?” he asks.
Deputy Seamus Healy says that much of the territory has been dealt with already, but welcomes the clarity given by Brady in relation to settled issues. He asks, however, for clarification in relation to the current situation, specifically in relation to the 1992 and 2002 referendums. There has been a divergence of opinion on the issue of whether the issue of suicide was ruled out or ruled in as a result of these referendums, he says.
Brady also asks the ICCL’s view regarding the numbers of doctors required, or number of specialists required, to assess a woman under the proposed legislation.
On to Deputy Denis Naughten, who asks if having three specialists needed to deal with a woman experiencing suicidal ideation while pregnant would run contrary to the European Court of Human Rights convention.
In his reply, Brady says that a previous case, the Roche case, said that the right to life begins when a person is born, not the unborn. He said in circumstances where a foetus can’t be expected to survive outside the womb, “what can the State do?”.
In relation to the question raised by Deputy Healy, the Irish constitution has been amended 31 times, and on five occasions roughly the same question has been put to people twice, said Brady. The answer was the same in removing the suicide criteria, he said, describing the idea of having another referendum on this issue as a ‘red herring’.
Both referendums failed when asking should the threat to suicide be removed, and Brady says the Irish people understood what they were being asked and gave the same answer both times.
On to Deputy Naughten’s questions, with Brady says the European court looked at the situation where a woman disagrees with her doctor, and said:
As the expert report has recommended two doctors at specialist level, which is what the ICCL would recommend, Brady said that whatever specialist structure is put in place “has to enable quick resolution”.
More questions, and Dr Brady is asked in cases of rape what would be required to be done regarding abortion.
Deputy Mary Mitchell O’Connor asks them to clarify what they mean by a defined set of fatal foetal abnormalities, as mentioned in their submission.
Deputy Naughten says there is a difference in no prospect of being born and no prospect of life outside the womb. He asks for this to be clarified.
Ciara Conway TD speaks about consent, mentioning the X Case and the age of the girl in this case being 14.
Dr Brady speaks about fatal foetal abnormality, saying that denying abortion in such cases could be against the EU Convention of Human Rights. This could possibly be extended to rape and incest, he suggests.
He adds phrases like ‘floodgates’ are unhelpful in these situations when discussing the proposed legislation.
Doctors in this situation are already making a decision between life and death, says Dr Brady. What section 58 and 59 do is put in the possibility of going to jail for life. “I don’t think it is helpful for a doctor to have that weighing in the balance” while making such a decision, he says, adding the ICCL wants it repealed.
Dr Brady says the ICCL’s core point is where a doctor says this foetus will not survive outside the womb, that there would be no issues under the constitution (point 40.3.3) of providing an abortion in these circumstances.
In relation to Deputy Conway, says that the Law Reform Commission recommendation does take account of the fact that in most instances consent will be done through the parents, that the best interest of the child should govern.
He said the X Case was not a good example as the parents were in favour of the abortion, whereas in the C case, the girl was in the care of the State. The High Court said in this case that it failed to see how any court could take any other view than the need of that child to have an abortion. Provision can be made, said Dr Brady, saying best interests of the child should be of paramount consideration.
Senator Ivana Bacik asks about the number of specialists required to assess a pregnant woman with suicidal ideation.
Is it your view that any more than two would render the procedure ineffective for women, she asks, adding: “Can you cure that in some way through provision for emergencies,?”
Senator Paul Bradford speaks about Dr Brady’s point that “at an absolute bare minimum” the Government must legislate. Asking Dr Brady to clarify the position arising from the European Court judgement, he asks, is the need to legislate his opinion, and what is the actual legal impact of the judgement.
Senator Jim Walsh adds to Senator Bradford’s points in praising the ICCL for their openness about their campaigning and position on this issue.
He asks if the ICCL would agree that European Court of Human Rights don’t rush countries into making decisions that would be against the wishes of that country.
“If we legislate for the X Case we do so knowing that in 3 per cent of the cases the person would probably go commit suicide,” says Senator Walsh. But we also know that in 97 per cent of those cases we are actually going to abort healthy babies, he adds.
Senator Fidelma Healy-Eames give the example of a woman who she says was told was pregnant with foetuses that would not survive outside the womb, and was advised to have a termination, but did not.
How would a woman’s rights in infringed if we had the legislation you are proposing, she asks. How would you respond to the evidence as well that for women who carry babies to full term who may have a foetal abnormalities there is a “healing” in that, and what about the rights of the women in that context, she continues.
Deputy Peadar Tóibín sepaks about personhood, and when it begins. When does a human being gain human rights, he asks.
Senator Labhras Ó Múrchú asks if the proposed legislation could in fact be too limited, in the ICCL’s opinion.
Dr Brady tells the committee that the ICCL would endorse the expert group report with regard to requiring two specialist doctors. Having regard to the ECHR case law on this, the key requirement is ‘timely’, he says, adding that having more than two doctors could add a delay – but the ICCL would make no effort to impeded that.
Ireland should be actively seeking to improve its compliance Convention of Human Rights article 3, he added, rather than responding to being told it is in breach of it.
In relation to Senator Walsh’s question, Dr Brady says the concern was the woman had a constitutional right and she needed to find out whether that right arose. The difficulty is in accessing the right, he says.
The Supreme Court rejected in the X Case the requirement for an immediate risk in the case of suicide, said Dr Brady. The ICCL’s view is that we should trust doctors, says Brady, adding that the test does not require certainty, it requires probability that there is a real and substantial risk to the life of the mother.
I think it is very easy to look at situations in hindsight, Dr Brady tells Senator Healy-Eames. He says the ICCL say the decision should be made by the woman. At the moment the woman does not make the decision under Irish law – it is made under a 19th century statute.
The vast majority of EU states provide for relatively liberal abortion regimes. says the ICCL’s Dr Brady. The ECHR allows countries to decide for themselves at the moment, but this position is changing over time, says Dr Brady, responding to a question on the issue of whether countries are rushed into making decisions that would be against their wishes.
That concludes this second hearing – thanks for following the proceedings with us.
We will be back at 2.45pm today for the next part of the hearing, when Professor William Binchy of Trinity College Dublin and Hon Judge Catherine McGuinness will speak to the committee until 4.15pm.
Good afternoon. We’re back for the third and final Oireachtas Health Committee hearing on proposed abortion laws of the day. It’s Sinéad O’Carroll here, taking you through to 4.15pm.
There’s just two witnesses to be heard over the next 90 minutes – Professor William Binchy of Trinity College Dublin and Hon Judge Catherine McGuinness – who Jerry Buttimer is now welcoming.
First up, Professor William Binchy makes his prepared statement.
He congratulates the joint committee on how they have handled their meetings on a human rights issue so far.
Binchy says that yesterday’s hearings showed that the work being carried out in Ireland’s hospitals is “wonderful”. He said that doctors are not afraid to carry on with treatment, and sometimes, this unfortunately means that babies die.
He says that he wants legal support for what actually happens on the ground already. He describes it as a practical solution.
Moving onto the X Case scenario, he said the Supreme Court judgement brings up a different scenario – a change in current medical practice.
Binchy says the European Convention does not provide for abortion as a right. The European Court of Human Rights has directed Ireland to clarify its laws, he added.
The ABC judgement does not require that we bring the Supreme Court judgement into law, claims Binchy. He said it is a point that should be brought up with the Attorney General.
He concedes that some of the committee will see him as an advocate, and not just a cold legal analyst.
Binchy’s next point brings up the Expert Group’s task. He said it was asked to give options on the ABC judgement but Binchy believes that Health Minister James Reilly briefed the group to give only options within the terms of reference of the Supreme Court judgement in 1992.
He asks for a probe into the behaviour of Dr Reilly, and says it raises legal issues.
Binchy also says that on the issue of suicide ideation, it needs to be treated but not by terminations.
That concludes Binchy’s opening remarks. Up now is Hon Judge Catherine McGuinness. She remains seated because of a recent accident and explains she didn’t prepare an opening statement because of time constraints and ill health.
She says she is not sure why she was chosen, and explains she is not representing the judiciary.
She says she is here as a lawyer and her views are not relevant.
The Supreme Court reached its decision in the X Case and it is an authoritative interpretation that still stands, explains McGuinness.
She adds that the two referendums on repealing the self-destruction clause failed.
McGuinness says the Government is correct in law in what they are doing – i.e. responding to ABC judgement with regulation and legislation.
She said she has learned from divorce legislation – that is that specific reasons for divorce have been brought into the constitution and cannot be changed without referendum.
McGuinness says she is a member of the Church of Ireland and agrees with its stance on the issue of abortion.
She believes she reflects the views of many women and men in Ireland on abortion. She describes it as “holding the middle ground”.
McGuinness says that Binchy has forgotten to mention the thousands of women who travel abroad for abortions.
She says Ireland has abortion – it is just elsewhere.
“We want an escape route from the absolute,” she adds.
McGuinness agrees that the suicide ground creates difficulties for lawmakers because Ireland insists only having the ‘life grounds’ rather than ‘health grounds’.
She said lawmakers are “stuck with” the Supreme Court’s ruling, which she believes is constitutionally correct, unless there is a referendum.
And as per earlier sessions, Fianna Fáil’s Billy Kelleher is up first.
He asks Binchy about Dr Rhona Mahoney’s statement yesterday asking for clarification that she cannot face jail – or that her patient cannot face jail – if a termination is carried out. He is correct when he says that sentence resonated with many people across the country yesterday.
He asks Binchy if the suicide ideation issue could be addressed in legislation or would a referendum be necessary.
Next up, Sinn Féin’s Caoimhghín Ó Caoláin asks McGuinness if current law provides for lawful terminations if the pregnant woman is suicidal because of her pregnancy?
He also asks Binchy about his opinion that further abortion developments would occur if legislation for X Case is brought forward. He claims that this would not be possible because of constitutional protection.
Deputy Seamus Healy asks Binchy what is he suggesting this Oireachtas should do, given that it has already heard medical practitioners ask for clarity.
Labour’s Ciara Conway is last up in this round of questions. She wants to know why Binchy said the Supreme Court was discredited.
She also wants to know why he gave personal and political conjecture on the issue when he was asked here as a legal expert.
Binchy to answer the questions first.
He says his political conjecture links into the law. He says, legally, it is not a requirement of the ABC versus Ireland judgement for the State to legislate for the X Case.
He says the Supreme Court decision was discredited by a number of commentators, whose viewpoints would be neutral on the issue of abortion, at the time. He said he was happy to name one or two (but didn’t). He also adds that it is a fact that the Supreme Court did not hear from any psychiatrist.
With regards to where we move, he says law is a scaffolding. Law is a product of social choice, he says.
Binchy says the Supreme Court has come up with some surprising decisions in the past, for example it gave no protection to embryos outside the womb.
He argues that sometimes the Supreme Court gets it wrong.
McGuinness up next.
She says that the question of suicide ideation directly relating to a pregnancy as opposed to suicidal thoughts indirectly relating to a pregnancy has not come before the courts.
She is not prepared to guess on the subject.
Looking at the current legal position, she said it is set up by various referenda.
She said on this issue, she said lawmakers should look to the people not making robot calls, not writing letters – the people who are more subtle, the people who might think about what happens if it is their daughter.
On the matter of the Supreme Court, she said it was a matter of opinion if one thinks the X Case judgement has been discredited.
McGuinness notes that the people who opposed the Children’s Referendum are largely the same people who are violently opposed to any abortion law reform – she said she finds that a little strange. They are all for the rights of the unborn but not so gung-ho about the rights of the born.
Look to the middle people of Ireland who aren’t after you all the time, she tells the committee.
And another round of questions.
Deputy Denis Naughten brings up the issue of fatal foetal abnormalities; asks for views on whether a constitutional amendment is needed to allow for terminations in such cases.
Labour’s Robert Dowds asks to what extent legislation is required to protect doctors in hospitals. He says yesterday’s witnesses said they required clarity. Do we not need legislation to protect them? “What would we do without our old enemy across the water, England?” he concludes.
Deputy Mattie McGrath asks whether the Oireachtas can disagree with the X Case judgement because of the separation of powers between Government and judiciary. He also questions whether there is a belief that there is two patients in a maternal emergency situation.
Senator John Crown asks Binchy, as a lawyer, if the committee should ignore the Supreme Court and two referenda? “Who is the authority we should be answerable to?” he asks. “Is he suggesting a constitutional coup?”
Crown asks for Binchy’s pre-prepared statement to be taken from the record because it refers to the case of a woman whose death certificate has not been issued. He said that suggestions of causes of death were included and was, therefore, not appropriate.
Deputy Mary Mitchell O’Connor asks Prof Binchy does he think it is right to repeal the 1861 laws about abortion; she quotes back his sentence that
Constituents are worried about this legislation “opening the floodgates”, she said. Instead of arguing about whether we should legislate or not – because that is why we are here – she asks what should be included.
Binchy answers first.
He claims that doctors do not have a real concern about being sent to jail. He says there is no prospect of this happening.
“What we need here is clarity in the law, rather than legislation,” he continues. Clarification could come with specific standards and protocols in this area. There could also be legislation to put current medical practice in law.
The evidence from doctors is that they are not holding back out of concern for law – the actuality on the ground is fine – he continued.
Deputy Dowds brings up the point that Professor McAuliffe raised yesterday that some women had been referred abroad for treatment. Binchy said this was not representative of the majority.
Answering Professor Crown, Binchy accused the Senator of reducing and nuancing Irish history.
He says that he would try to not be personal but added that he felt there was a “tinge” to Crown’s presentation and questions.
Binchy believes “a shift of principal” would occur if legislation for X is brought forward.
He claims the X Case tried to “pack in” other grounds within the ‘life’ ground to allow for a lawful abortion.
If that shift occurs, the future culture would also change, concludes Binchy.
She said that the 1861 law should be repealed. She says there should be protection against ‘illegal abortion factories’ but we don’t need that to be framed in 1861. Also, she says that doctors are worried about it even though they know the DPP isn’t out there waiting to prosecute them.
Answering Jillian Van Turnhout, McGuinness said the Supreme Court judgement does provide for other instances of threat to life, not just suicide. She reads from the judgement, calling it a general statement, laughing she adds “as discredited as it might be”.
If we’re going to have any more referenda, we should put various different options to the public, continued McGuinness. There are other views that could be reflected in the way the public vote.
On the ‘floodgates’ question, the retired judge said it was in the lawmakers’ own hands. She believes the limited legislation could not possible open any floodgates. If the suicide ground is a worry, she said, then it is for the Oireachtas to set up a difficult gateway.
Protocols and standards are all fine – but this is not enough for the courts, she adds in response to Professor Binchy. She also rebukes his statement about caring for the pregnant woman, adding that we need to do something about it too.
And we’re into the last 15 minutes of the session.
Threading a little softer than Professor Crown, Deputy Kelleher reiterates the question whether he is saying we should ignore the referenda and Supreme Court decision on abortion?
Ó Caoláin also has another question for Binchy about his suggestion that legislation could impact what happens on the ground in hospitals today.
Fine Gael’s Catherine Byrne tells McGuinness that it is very clear why she was invited – honesty and wisdom. She also criticises Binchy for his statements today, says she heard little from him that provides for the human rights of young pregnant women.
Binchy takes the stand again.
He says that he does not agree that the law could be interpreted to allow for abortions in the case of fatal foetal abnormalities.
The change of culture involved to allow for the actuality of abortion (with the ground of suicide ideation) would have an effect on medical practice in the area over time, continues Binchy, citing Britain as an example.
He said extensions would be discussed very quickly, for example, in the case of rape.
Binchy said there should be social and economic support for women who find themselves with a crisis pregnancy.
“Don’t change the law to bring in an abortion regime,” concludes Binchy.
McGuinness now answers the final questions.
On the question of extreme (fatal) foetal abnormality, she said she would not be certain that a doctor would be protected for carrying out a termination in these cases.
Doctors do need clarity in this case, she continues.
McGuinness says she doesn’t believe that legislators will bring in laws in an uncaring manner.
She says there should be an outline law and regulations, which give an opportunity to look at the duty of the care to the child.
“In the end, when we look at the values of Ireland’s society and whether, our values our considerably more subtle as opposed to what is the ideal that we set before us,” continues the retired judge
“When we come up against the human dilemma, what do we do by it.”
She pleaded with the committee not to be too effected by the ‘almost bullying approach’ of either side – either the extreme (as they describe themselves) pro-life who want the law narrowed or the ultra-liberals who would like abortion on demand.
Think about the middle ground, the majority of the constituents, she concludes.
Next up are the non-committee members.
Fine Gael’s Terence Flanagan asks why the Oireachtas should make law which ‘ignores’ modern science i.e. abortion can increase mental health difficulties.
Wicklow TD Billy Timmins asks if there is merit to repeal and replace the 1861 laws and legislate for physical risk to life but leave aside the issue of suicide for another day?
Senator Fidelma Healy-Eames asks how Binchy’s suggestion of no legislation could help medics who asked for clarity. She told him to bear in mind Professor McAuliffe’s statement that women are sent abroad for treatment because of legal uncertainty.
Senator Paul Bradford asks Binchy to expand on his claim that the Expert Group’s briefing was limited.
Senator Jim Walsh also raises the question of fatal foetal abnormalities. Separately, he repeats the question whether the Oireachtas is obliged to legislate for Supreme Court law given the separation of powers. He says the grounds of suicide would be exploited and “used as a wedge”.
Deputy Aodhán Ó Riordáin asks for a comment on abortion already being law on this country. He also raises Simon Mills draft bill that said a foetus that is not viable with life outside the womb could be lawfully terminated.
Even more questions.
One about the wording of a possible referendum.
Senator Katherine Zappone asks about the European Court of Human Rights judgement and whether it requires Ireland to legislate.
Kildare TD Bernard Durkan asks whether the lack of legislation impacts court cases on abortion.
Sinn Féin’s Peadar Tóibín asks whether there is a quantification possible in terms of the risk of life to a pregnant woman by suicide.
Finally, Deputy Michael Creed asks Binchy whether the status-quo (in the medical guidelines) that suicide is a grounds for abortion should be left as is.
He also raises the revelations from the 1982 State Papers that various AG’s predicted problems with the 1983 referendum.
Binchy to answer that avalanche of questions first.
He reiterates that the Supreme Court judgement is the law of the land. There are no constitutional coups, he adds. But that does not deprive people of critiquing the decision.”It is reasonable for the democracy to respond,” he said.
He said, emphatically, that the Oireachtas does not need to legislate for the X Case.
He believes those people looking for a change in law are looking for a radical change in culture.
Binchy adds that no change should be made – just clarity for what already happens in Irish hospitals.
McGuinness up next.
She said the Supreme Court would need another case if it was to change it’s approach. But, mostly, what is decided stays decided (she says this in Latin but I didn’t quite catch the phrase!)
McGuinness said a referendum would be needed if the ground of suicide ideation is to be taken out of law.
Commenting on questions about the separation of powers, she says the courts would much prefer this to happen – but this can only happen when legislators do their job.
McGuinness said if lawmakers are worried about the “0pening the floodgates”, then they are afraid of Irish people, Irish society.
“We ought to have more trust in Irish people and Irish doctors,” she said. “To say that is to say everyone will be galloping to do something we don’t do already.”
But then, we do it to a certain extent, she adds, nodding to the women who travel abroad for terminations. However, she believes Ireland’s rate of abortion is low.
“I hate the way we compare ourselves to England. Why are we stuck with this relationship with England? Look at the other countries,” she tells the committee.
She concludes with the point that maybe the advice of the Attorney General Peter Sutherland in the 1980s.
So two more somewhat conflicting testimonies for the committee to mull over.
Professor William Binchy said he does not believe the Oireachtas has to legislate for the Supreme Court judgement in the X Case as part of the State’s response to the ABC versus Ireland recommendations from the European Court of Human Rights.
He was also emphatic in his belief that any change of law on abortion would follow with a change in culture, leading to the intentional killing of the unborn.
Hon Judge Catherine McGuinness did not offer any personal opinions on the subject but pleaded with lawmakers to look to the “middle ground” when making their decisions, and not those on either side who use “bullying tactics” to get their attention.
And that is that for another day.
Jerry Buttimer et al. are off for a rest, as are TheJournal.ie live-blogging staff. But we’ll be back at 9.30am tomorrow for what promises to be a mammoth session, including:
Day Three will also see witnesses from the Pro-Life Campaign, Youth Defence, Family & Life and the Iona Institute enter the chamber at 11.45am. Then at 2.45pm, Sinéad Ahern of Choice Ireland, Orla O’Connor from the National Women’s Council of Ireland and a representative from Action on X will give their testimonies.
Until then, feel free to leave any thoughts in the comments section.
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