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.

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