Monday, 4 February 2013

The X Case: a Question

Neither of the regular readers of this blog is a lawyer, but on the off-chance that I can persuade a blogging lawyer to take a look at this post, I have a question. Since it’s hardly fair to ask you to do all the work -- no, I'm not a fee-paying client -- I’ll attempt my own answer below and you can tell me where I’m wrong (I’m @Donoghue_K on Twitter).

When the Supreme Court lifted the injunction preventing Miss X and her parents from travelling to London for an abortion, what was the legal essence of their decision, particularly with regard to the risk of suicide? I’ll leave it to you to decide whether I’m asking for the ratio decidendi or the res judicata or neither. Call it what you like. My reason for asking is that I often read pronouncements like this one from Lucinda Creighton TD:

The X case brought in this issue of suicide as a grounds for abortion. I think that's very tenuous. The psychiatrists who came before the Health Committee are the only people who are in a position to really speak with any expertise on the specific question of whether abortion is ever necessary to prevent a suicide. Their answer was a resounding no. That is very conclusive as far as I am concerned and draws a line under the issue. We must be guided by their expert evidence.

Now any fule kno that “suicide is a grounds for abortion” is a rather sloppy account of the judges’ decision in the X case. What they actually said can be read here. Their statements relate to the very peculiar circumstances, which cannot arise again because, in similar cases, the right to travel is now guaranteed by the thirteenth amendment. Just how peculiar those circumstances were is spelled out:

...whatever the exact numbers are, there is no doubt that in the eight years since the enactment of the [eighth] amendment, many thousands of Irish women have chosen to travel to England to have abortions; it is ironic that out of those many thousands, in one case of a girl of fourteen, victim of sexual abuse and statutory rape, in the care of loving parents who chose with her to embark on further trauma, having sought help from priest, doctor and gardai, and with an outstanding sense of responsibility to the law of the land, should have the full panoply of the law brought to bear on them in their anguish.

I said at the outset that I'd attempt an answer to my own question. As I read it, the essence of the judgement is this. If it is practicable to prevent an abortion by imposing restrictions on the movements of the woman concerned, then that should be done; but these restrictions should not be so onerous as to create a substantial risk to her life. In particular they must not create such stress as would give rise to a substantial risk of suicide.

So to what extent does the X case judgement generalize? The most obvious cases in which it applies are those of prisoners who demand abortions. I suppose it would also apply to women on bail, since typically they are not free to leave the jurisdiction.

If my reading is correct, then the “resounding” verdict of the psychiatrists, that abortion is never necessary to prevent a suicide, is a bit beside the point as well as being rather sweeping. The relevant population-at-risk consists of women who want abortions, but are prevented from leaving the country. Studies of women who are at liberty but suffering from depression are not especially relevant.

Monday, 28 January 2013


The tragic death of Savita Halappanavar has fanned the embers of the Irish abortion debate, which until then had been smouldering away, ignored by most of the population, including me. At times it seems like we’re back where we started following the launch of the Pro-Life Amendment Campaign (PLAC) in 1981, with Professor William Binchy reprising his old role as champion of the Unborn. It’s a bit like seeing Franco Nero resurfacing in Django Unchained. I thought he must be dead by this time, but actually he has worn rather well. One big difference with this flare-up is that the debate now has an international flavour as American bloggers enter the lists. I welcome this. It livens things up. But it also creates scope for confusion, since Ireland looks deceptively like a US state from certain angles. I want to address two particular sources of confusion in this post:

(1) what the Irish debate is mostly about; and

(2) the idea that Irish law has a particularly Catholic flavour.

“Hard cases make bad law.” We heard that adage frequently from PLAC in the debates leading to the Eighth Amendment (1983):

The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.

What PLAC meant about hard cases, I take it, was that the Constitution should merely state the general principle and allow doctors and lawyers to decide whether, for example, a zygote is unborn and therefore has rights, and how the limits of the practicable are to be determined; trust the experts. Unlike Messrs Binchy and Nero, this dictum hasn’t aged well. That is because the only abortion cases which Irish hospitals and law courts need consider are hard cases. For the vast majority of women requiring abortions the main difference between living in London and living in Dublin is the airfare, typically around €130 return. In practical terms, there must be many locations in the US where obtaining an abortion is more difficult than it is for Irish women.

The very success of PLAC means that the Irish abortion debate is concerned exclusively with hard cases, where a pregnant woman has at least a colourable argument that her “equal right to life” is at stake. I stress this because anti-abortion campaigners are wont to frame the issue as if we were discussing abortion on demand. No doubt they fear that any relaxation of the law will put us on that slippery slope, which is quite possible, but we can’t slide very far without another referendum on the Eighth Amendment.

So the sort of thing we are debating is:

* What facilities should be in place in cases where a pregnant woman’s life is acknowledged to be in danger? The European Court of Human Rights finds it unsatisfactory that she should be expected to have her abortion in England. I certainly agree.

* What if the threat to her life arises because she is suicidal, as in the X case? Under current law, the nature of the threat to her life is irrelevant. Obviously this is totally unacceptable to anti-abortion campaigners. I expect the legislation will be a fudge, allowing an abortion in the unlikely event that two psychiatrists approve.

* Lawyers, including those representing the government, believe that the Constitution as it stands may allow abortion in cases of fatal foetal abnormality. Should that be provided for by legislation? That makes sense to me.

By Irish standards, these views are enough to make me a liberal. Pretty clearly, they are rather tame by American standards.

So much for the first confusion I wanted to address. The other one springs from the tendency to assume that Irish abortion law is written to the specifications of the Catholic Church. In reality the source, for most purposes, is the Offences Against the Person Act 1861 of the (then staunchly Protestant) UK Parliament. The consequence is that the distinction “between killing someone directly and allowing someone to die of indirect causes” which is so important to Catholic moralists, doesn’t appear to concern the Irish Supreme Court at all. I’m not a lawyer, but I’m pretty sure that any of the three methods of dealing with an ectopic pregnancy mentioned in that link could be used in Ireland without risk of prosecution. Basically, the law permits killing in self-defence, whether the threat comes from a deranged gunman or a misplaced foetus.

All this is by way of a reply to a question put to me on Twitter, where I have been sounding off on these matters.

[Post updated to reflect the fact that I've changed my Twitter handle.]