By Ivan Bacik
Dublin, Ireland, 7 October, 2001
The proposal introduced by the governmment last week is dangerous, strange and unfeasible: a bill within a bill, to amend the Constitution -- but containing a criminal bill creating a new offence of 'abortion'.
'Abortion' is defined to exclude termination of pregnancy carried out to prevent a real and substantial risk to a woman's life, except where that threat is of suicide. That means that any woman who tries to abort herself, or anyone who tries to help her, will be guilty of a criminal offence and could face a sentence of up to 12 years' imprisonment.
Confused? You may well be. Far from clarifying the law, this is a legal quagmire.
The essence of the governmment proposal is that women who need to terminate their pregnancy because they are suicidal will be denied the right to do so in Ireland. It will overturn the 1992 decision of the Supreme Court in the X case. There, a 14-year-old girl, raped, pregnant and suicidal, was permitted to travel to England for an abortion because the continuance of her pregnancy posed a "real and substantial risk" to her life. A fair judgment, and the only possible interpretation of the 1983 amendment to the Constitution which made the rights to life of the "unborn" and the "mother" equal.
The net effect of the governmment proposal, if passed, will be to dilute the right to life of the pregnant woman, to make it less than equal with that of the foetus.
The bill will also overturn the 1997 C case, where a young suicidal pregnant girl who wished to terminate her pregnancy was in the care of the health board. The board needed court permission to take her out of the country for an abortion. The High Court applied the X case decision and ruled that because -- and only because -- she was suicidal, the health board was entitled to take her to England for an abortion.
Past experience shows that further `C cases' will arise -- with asylum-seekers, for example, who need state permission to leave the jurisdiction, women with disabilities who cannot travel unaided, or women just too poor to afford the cost of travel.
This is a bad law because it endangers the lives of these women, the most vulnerable in our society.
There are many other reasons why this is a bad law. In no other constitutional referendum, including the Good Friday vote, have the people been asked to give constitutional status to legislation. The novel, bizarre (and possibly unconstitutional) mechanism for this proposal would make the legislation part of the Constitution, because it could not be amended in any way -- however minor -- without a referendum.
This flatly contradicts Bertie Ahern's own assertion that abortion should be dealt with by way of legislation.
There are other constitutional flaws. Article 46.4 of the Constitution says that a bill providing proposals for constitutional amendment should not contain any other proposal, yet this bill -- purporting to amend Article 46 -- contains within it entirely separate legislation, creating a new criminal offence with a serious penalty. This cumbersome process aimed at restricting the right to life of women is itself probably unconstitutional.
Criminalising women is draconian and contradicts the supposed policy of the governmment in creating a crisis pregnancy agency to treat women who have abortions in a compassionate and caring manner.
So why is the governmment so obsessed with ruling out the suicide risk that it is pushing this misguided and deeply flawed proposal?
There was an alternative route. Legislation published by Abortion Reform in March would have implemented the X case by allowing doctors to perform abortion where the pregnancy posed a threat to the woman's life, including threat of suicide. The legislation provided that suicide risk would be psychiatrically assessed. Psychiatrists are professionally trained to predict and assess suicide risk, just as other doctors are trained to assess physical risk. In neither case will the risk always be clearcut.
By excluding suicide risk, the governmment has impugned the professional integrity of the pyschiatric profession. It has also denied the reality of mental illness, which claims the lives of up to 500 people here every year.
So suicide is not life-threatening? Of course it is -- but the governmment presumes that women and psychiatrists are not to be trusted, that they will collude in faking a suicide risk. This presumption, which is the only rationale for the proposal, is deeply offensive. It is another reason why the proposal must be defeated as misguided and dangerous.
An almost identical referendum was already defeated by the Irish people in November 1992. Let's defeat it again.
Ivana Bacik is Reid Professor of Criminal Law at TCD and is a practising barrister.
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