Legislating for X: An Unorthodox View

And so the Oireachtas is conducting its hearing on how best to legislate for the X judgement, the Government having said that after pondering the Expert Group's report, they're going to legislate and regulate in accordance with the Supreme Court's ruling in the 1992 X case.

Labour's high command are rejoicing, as they look set to manage the rare feat of achieving something in their manifesto. Fine Gael are in disarray, as they'd said they wouldn't legislate for abortion. Pro-choicers are crying 'victory!'. Pro-lifers are weeping and wailing and gnashing their teeth. The bishops have finally found some backbone and said what they think. People who think that religious citizens shouldn't have a say in how their country runs things are angry. It's all very loud. It's hard to hear oneself think.

Still. We should try. I happen to think it's possible to legislate for X while still keeping Ireland abortion-free. Or, if you like, for both Labour and Fine Gael to keep promises that helped get them elected. I might be wrong, but hear me out...

Crossing the Red C, with some difficulty...

A few weeks back a poll found that 63pc of people wanted a new referendum on limiting the constitution such that a threat of suicide would be excluded as grounds for abortion, and 82pc wanted a new referendum to extend the grounds for abortion to include threats to a mother's health, or in cases where a woman had been raped. Leaving aside moral issues, I’m not sure how that would logistically be possible, as it’d mean that a right to abortion would be dependent on other legal processes and verdicts of guilt, but still, it seemed that 45pc of people wanted both to tighten and loosen the constitutional limits. 

It is possible to make sense of this, but doing so requires some contortion.

The same poll also found that 36pc of Irish people want abortion on demand, which is a depressingly high figure, but does at least suggest that the likes of Ivana Bacik and Clare Daly are most definitely in a minority, with most people recognising that without a right to life all other rights are meaningless, and that basic 'golden rule' ethics mean that we shouldn't will that others should suffer a fate we'd not have wanted for ourselves.

85pc of people in that poll said that they would be happy for the government to legislate in accord with the X case. Some pro-choicers have decreed that this means there's massive support for their position.

They'd be wrong. I support legislation for the X principles, and I'd not be the only pro-lifer who does so. The question, of course, is 'what sort of legislation?' and 'would it be enforced?' Because if we're to legislate in line with what the Constitution actually says, this would entail very narrow legislation, and would probably require serious and careful monitoring.

My biggest concern is that I'm not sure our politicians have the political will to do this.

Enter the European Court of Human Rights...

Unfortunately, most people still don't seem to get what the Supreme Court said in the X case, or what our obligations are in connection with the ECHR. The European Court of Human Rights wants us to clarify things, as the X judgment has remained a theoretical thing for twenty years: the ECtHR wants us to make this practical. There are plenty who point out that we don't need to do what the ECtHR says, and they're right, up to a point, but I tend to think that disregarding our treaty obligations is something we shouldn't do.

The ECtHR, in considering the X case and its ramifications, says this:

"The Court does not consider that the constitutional courts are the appropriate fora for the primary determination as to whether a woman qualifies for an abortion which is lawfully available in a State. In particular, this process would amount to requiring the constitutional courts to set down on a case by case basis the legal criteria by which the relevant risk to a woman’s life would be measured and, further, to resolve through evidence, largely of a medical nature, whether a woman had established that qualifying risk. However, the constitutional courts themselves have underlined that this should not be their role."

Or, in other words, courts have legal proficiency, not medical proficiency. They are simply not qualified to make medical decisions or to rule on medical matters. They may lay down legal principles, but it is inappropriate for them to evaluate medical situations.

Keep this in mind, and then remember what the X decision did: it established a legal test, as a way of interpreting the Constitution, and it applied that test in a real-life medical situation. The ECtHR is of the view that the first thing the Supreme Court did was entirely valid, and that, as a general principle, the second thing was outside its sphere of competence. Yes, it was legal, but only because in the absence of a consistent and transparent medical process, we didn't have any choice. It wasn't a good idea. It wasn't, as the ECtHR says, 'appropriate'.

Revisiting the X Case...

The central point of the X case revolved around the issue of whether the threat to a mother's life that justified a termination of pregnancy, should such a termination be necessary, had to be certain or merely probable.  Chief Justice Finlay ruled that:

 "... the test proposed on behalf of the Attorney General that the life of the unborn could only be terminated if it were established that an inevitable or immediate risk to the life of the mother existed, for the avoidance of which a termination of the pregnancy was necessary, insufficiently vindicates the mother's right to life. 

I therefore conclude that the proper test to be applied is that if it is established as a matter of probability that there is a real and substantial risk to the life, as distinct from the health, of the mother, which can only be avoided by the termination of her pregnancy, such termination is permissible, having regard to the true interpretation of Article 40.3.3° of the Constitution."

It's this test in accordance with which the government is obliged to legislate, not the X application, and it is only in accordance with our ECHR obligations, rather than the Irish Constititution that legislation is needed – Chief Justice Finley pointed out during the 1992 X case that “This Court has on a number of occasions said that legislation to protect constitutional fights is not strictly necessary”. 

Now, as the expert group has recognised, this test has two conditions:

“The Supreme Court in the X case held that the correct test was that a termination of pregnancy was permissible if it was established as a matter of probability that:

1) there is a real and substantial risk to the life of the mother; and

2) this risk can only be averted by the termination of her pregnancy.”

Over the past twenty years we've tended to emphasise the first condition and basically ignore the second. The issue in the X case wasn't whether terminations of pregnancy might be allowed in Ireland, in certain circumstances. It was proximity and magnitude of risk.

What was not in dispute was that termination should be permissible when it was the only option, the only way of protecting the mother's life.

"As far as practicable..."

This shouldn't surprise us. Take a look at the Eighth Amendment to the Constitution:

"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."

The State guarantees as far as practicable to defend and vindicate the right to life of the unborn, with due regard to the equal right to life of the mother. Or, if you like, the State is bound to protect the lives of the unborn, as much as it possibly can, save where doing so would endanger the lives of their mothers. That's what the Irish people voted for in 1983. 

The crucial issue here, on which the X case turned, was what was meant by the phrase "as far as practicable". During the hearings for X, Justice McCarthy asked Peter Shanley SC, acting for the government, if he accepted that the 1983 amendment envisaged a 'lawful abortion' in Ireland, and Shanley said that he did:

"Yes, I accept that. For example, a mother suffering from a cancerous condition which requires chemotherapy has the right to have her pregnancy terminated. The pregnancy may be terminated if, but only if, there is an inevitable danger to the right to life of the mother."

(It's worth noting, of course, that Shanley wasn’t a doctor either, and that it's not a given that cancer treatment necessitates termination of pregnancy, as Frederic Amant, for instance, points out.)

Justice Hederman spelled out what the Eighth Amendment meant in this regard, saying:

"The death of a foetus may be the indirect but foreseeable result of an operation undertaken for other reasons. Indeed it is difficult to see how any operation, the sole purpose of which is to save the life of the mother, could be regarded as a direct killing of the foetus, if the unavoidable and inevitable consequences of the efforts to save the mother's life leads to the death of the foetus. But like all examples of self-defence, of which this would be one, the means employed to achieve the self-protection must not go beyond what is strictly necessary."

Hederman thus distinguished between the direct killing of a foetus and the death of a foetus as an ancillary consequence of another procedure, the intended aim of which is the preservation of life. 

Catholic moral teaching would use the terms 'direct abortion' and 'indirect abortion', based on a distinction between direct and indirect effect, an ethical principle which informs general medical treatment in Ireland, as 2000's Oireachtas Committee on Abortion recognised, noting that "It forms a crucial element in the Medical Council ethical guidelines in this area."

We needn't get hung up on McCarthy's phrase 'legal abortion'; contrary to the claims of some pro-choicers, this isn't a matter of wordgames, not least as the term 'abortion' has a fair few meanings, some of which seem to be incompatible. As William Binchy put it to the Oireachtas Committee on Abortion in 2000:

"… it’s not so much the language that counts here, it’s the activities that are done and the context in which they are done that’s important – the principles that underlie the activities in question."

Is abortion medically necessary?

What's the point of this issue of necessity? Well, the expert group says that one of the key principles underlying any method of giving concrete effect to the X decision is that:

"The constitutional obligation on the State is by its laws to respect, and as far as practicable, defend and vindicate the right to life of the unborn."

Any legislation that doesn't meet that obligation would be unconstitutional; any legislation that goes beyond facilitating termination of pregnancy save when it's utterly unavoidable if it's to remove a danger to a mother's life would simply be in breach of the Constitution. 

Finley's little word 'only' is probably the key to this whole thing.

Abortions clearly take place to save the lives of mothers. They’re rare, but they happen. In England and Wales, for instance, 46 of the 189,931 abortions performed in 2011 – that’s 0.02pc of the total – were carried out in order to protect the life of the mother, one being an emergency abortion, and all others being ‘Ground A’ abortions, justified on the basis that:

“the continuance of the pregnancy would involve risk to the life of the pregnant woman greater than if the pregnancy were terminated”

Abortions under Ground F to save a mother’s life in an emergency situation are incredibly rare in England and Wales. There was, as noted, only one such in all of 2011, and seemingly not one Irish resident has undergone a ground F abortion there since the X case in 1992.

Given that roughly 4,000 of Britain’s roughly 190,000 annual abortions are performed at the behest of Irish women, it seems that approximately one in 47 abortions in the UK is an ‘exported’ Irish abortion. And, as we’ve seen, it looks as though 46 British abortions a year might pass the X test. Leaving aside margins of error, and bearing in mind the fact that the figures tend to be roughly the same each year, the statistics suggest that in any given year, one of these 46 will probably be performed for an Irish mother. One. 

The thing is, though, that this one might not meet the X criteria. Even if it meets the first criterion, there being a real and substantial risk to a mother’s life, would it meet the second?

What these rarities don’t establish is whether these abortions were the only way of saving those women’s lives. That’s the key question: is it ever the case that the only way to save a mother's life is to perform a direct abortion?

Pro-lifers will invariably say ‘no’, and that there are always other ways of protecting women, including interventions -- indirect abortions, if you will -- which inadvertently result in the deaths of unborn babies*. They tend to have the medical profession on their side on that one. 

It’s important to understand in this context that Britain’s 1967 abortion law doesn’t make abortion legal, but instead gives doctors a number of defences for situations where they believe it’s necessary to perform abortions. Treatment for ectopic pregnancies and so forth were never deemed offences under under the 1861 Offences Against the Person Act, so the 1967 act didn’t give doctors defences for dealing with such terrible situations; treatment for ectopic pregnancy isn’t classed as abortion in UK law and are counted separately from abortions.

Those who disagree will generally change the subject when asked to give examples of instances where abortion -- understood as direct targetting of unborn human beings -- is the only possible way of saving a woman's life.

Often they'll move the conversation to the issue of suicide. If, as in X, a mother threatens her own life, then it can be directly necessary to save her life. Leaving aside the fact that in X abortion manifestly wasn't necessary to protect X, such that it didn't pass its own test**, let's think about this.

Abortion and the risk of suicide

The Samaritans and the Irish Association of Suicidology advise that “suicide is never the result of a single factor or event”, and that “The reasons an individual takes their own life are manifold, and suicide should not be portrayed as the inevitable outcome of serious personal problems.”

These same guidelines recognise that "not all people who die by suicide have mental health problems at the time of death", but point out that the majority of those who kill themselves do, and Britain's Centre for Maternal and Child Enquiries said in its 2011 report that while suicide when pregnant is a relatively rare phenomenon, suicide in pregnancy or post-delivery tends to be linked to mental illness.

The evidence is pretty clear that there's no medical basis for presenting abortion as a medical solution to any mental health problem; it may not make things worse for women, but it is unlikely to make things better. Even Fintan O'Toole conceded this recently when he said::

"Last year, the Academy of Medical Royal Colleges in the UK commissioned a systematic study of global scientific evidence on this question. It found: 'The rates of mental health problems for women with an unwanted pregnancy were the same whether they had an abortion or gave birth.'"

It's not just Fintan who recognises that abortion doesn't help women's mental health. In 2011 the Royal College of Obstetricians and Gynaecologists issued the latest revision of their evidence-based guidelines on the care of women seeking induced abortions, stating that:

“Women with an unintended pregnancy should be informed that the evidence suggests that they are no more or less likely to suffer adverse psychological sequelae whether they have an abortion or continue with the pregnancy and have the baby... Women with an unintended pregnancy and a past history of mental health problems should be advised that they may experience further problems whether they choose to have an abortion or to continue with the pregnancy.” 

Given this it is, of course, rather surprising that the vast majority of abortions in Britain are on mental health grounds. 185,973 -- 98pc -- of Britain's abortions in 2011 were 'Ground C' abortions, that is, they were permitted because "the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman". It would seem that almost all of these were on mental health grounds, to judge by the previous year when 185,291 abortions -- again 98pc -- were Ground C abortions, with 99.96% of these reported as being performed because of a risk to the woman’s mental health.

With UK law saying that abortion on mental health grounds is permissible only when the risk of injury to mental health would be lower if an abortion were performed than otherwise, and with the medical evidence now recognised as showing that mental health problems are not reduced by abortion, it seems that such abortions in Britain are almost invariably performed in defiance of UK law.

Setting aside the Supreme Court’s application...

The expert group, listening to the ECtHR and looking at the X decision, made some interesting decisions. They seem, effectively, to have disregarded the X application, and paid heed only to the X test.

The preface gives a clue to why they did this, saying:

“The members of the group who are not doctors are not settling legal issues, the lawyers are not deciding medical controversies and the administrators are not adjudicating on the medical or legal questions.”

In this they recognised areas of competence, noting that medical matters are beyond the competence of legal professionals; this was in line with the ECtHR’s recognition that courts – even the Irish Supreme Court – are inappropriate fora for deciding medical controversies.

The group was adamant that abortion – in the context deemed permissible by the Supreme Court – should be considered a medical procedure, noting:

“Given the circumstances in which a right to a lawful termination of pregnancy would arise, i.e. when there is a real and substantial risk to the life of the woman which can only be averted by the termination of her pregnancy, this procedure would necessarily fall under the category of medical treatment.”

As such it envisaged any decisions that abortions should be necessary as having, by definition, to be made by medical professionals. The Supreme Court, in the X case, had received no medical evidence, relying instead on the evidence and opinions of a psychologist; from the point of view of the expert group, that’s not good enough.

The expert group, then, have recommended to the government that in a situation where a suicidal woman might seek an abortion, the decision as to whether or not it should be granted should be an exclusively medical one. Doctors, probably including at least one psychiatrist, would have to be able to swear that an abortion was granted because there was no other way of saving that woman’s life.

Enforcing the ‘Only’

As we’ve seen, abortion almost certainly wouldn’t help alleviate any suicidal ideation or other mental problems said woman might be suffering, such that granting it would probably be illegal even in Britain.

In Ireland, however, the bar would have to be set much higher; if the Constitution is to be respected, doctors would be barred from granting abortions when they see them as the best, or the most convenient, or the most humane solution. They’d only be allowed to grant them when they see them as the only solution.

As the expert group says:

“The State is entitled and, indeed, obliged to regulate and monitor the exercise of [the limited constitutional right to abortion] so as to ensure that the general constitutional prohibition on abortion is maintained.”

 As such, the expert group seems to envisage monitoring rather beyond what happens in Britain, saying:

“Any proposed system should be duly monitored. There is a need to keep records on the number of women who seek and who are given terminations and the medical reasons that gave rise to the treatment for clinical purposes. Statistics are also required to inform policy, as well as to ensure that the principles and requirements of the system are being upheld. The Review Panel system and its effectiveness should also be monitored. Finally, it is important to protect and suitably anonymise all records, to safeguard the privacy and identity of both patients and doctors.”

This, of course, is where it gets interesting. Monitoring in Britain is minimal, with doctors having to submit the most scanty of forms to explain why they believed abortions justified, their discretion being trusted. HSA4 forms, from which Britain’s abortion statistics are compiled, are sent to the Chief Medical Officer, are not required to give detailed justifications, instead merely requiring two doctors – except in emergencies – to certify their good faith opinion that the termination meets at least one and the same ground set out in the Act, given the information that they have about the woman’s circumstances. 

If there is evidence that a certifying doctor has not formed an opinion in good faith, then those performing the termination are not protected by the Act and may have potentially committed a criminal offence by terminating the pregnancy. The doctors involved may also be acting contrary to their professional duties.

HSA2 forms, which are required for Ground F and G abortions, requires doctors to certify that they were “of the opinion formed in good faith that it is/was necessary immediately to terminate the pregnancy”

The expert group, however, seem to think Irish doctors should be obliged to set forth the medical reasons that necessitated the treatment; what this might mean is not clear, but what is clear is that a mere box-ticking exercise would run contrary to the Constitution. 

This wouldn’t be unnecessary fussiness or prurience. It would simply be a case of the State acting in accord with its duty to vindicate and protect the rights of the unborn, as far as practicable. And what happens when the monitoring panel looks at a case where an abortion took place which the panel deems to be anything other than strictly necessary?

Well, as things stand, and as in Britain, abortion is a felony under the 1861 Offences Against the Person Act, for which a sentence of penal servitude for life can be imposed. Doctors can still be charged under this. The guidelines for filling out the HSA1 and HSA2 forms say:

“If there is evidence that a certifying doctor has not formed an opinion in good faith, then those performing the termination are not protected by the Act and may have potentially committed a criminal offence by terminating the pregnancy. The doctors involved may also be acting contrary to their professional duties.”

It seems to me that even with amendments, this principle could be upheld.

I think this would work. We legislate for X, but demand that decisions to abort be made by doctors, and doctors only, and with every single abortion – direct or indirect – to be scrutinised after the fact by a monitoring panel of medical practitioners. This wouldn’t happen so often that the medical profession in Ireland would be overwhelmed; if the British figures give us a real guideline on this, there’d only be one case a year where doctors would even have to consider whether a mother was in such danger of death that an abortion – as understood in the colloquial rather than strictly medical sense – would be the only possible way of saving the mother’s life. 

Doctors performing or authorising abortions should have to justify to the panel not merely what the risk was to the mother, but also why there was no other way of saving her life other than killing her child. 

And if the Constitution is to be taken seriously, the monitoring panel would be obliged, in cases where they believed doctors had performed abortions which were not clearly necessary, to have said doctors struck off and reported to the Director of Public Prosecutions. And as we’ve seen, it’s very hard to think of a situation where abortion would be necessary. It wasn’t necessary in the X case.

Would this guarantee that there’d never be abortions in Ireland? No, but just as abortion isn’t a magic wand, neither is the law magic. It would, however, guarantee that direct abortion would remain illegal.

_____________________________________________________________________________

* Yes, babies. Because that’s what the Medical Council guidelines say. As indeed the NHS in Britain tends to. Just like most expectant mothers, and other normal human beings.

** Finlay deemed the test to be passed in X because, 

"In my view, it is common sense that a threat of self-destruction such as is outlined in the evidence in this case, which the psychologist clearly believes to be a very real threat, cannot be monitored [in the sense in which a physical threat can] and that it is almost impossible to prevent self-destruction in a young girl in the situation in which this defendant is if she were to decide to carry out her threat of suicide."

 Justice Hederman, dissenting, thought this was nonsense. 

"If this young person without being pregnant had suicidal tendencies due to some other cause then nobody would doubt that the proper course would be to put her in such care and under such supervision as would counteract such tendency and do everything possible to prevent suicide. [...] This young girl clearly requires loving and sympathetic care and professional counselling and all the protection which the State agencies can provide or furnish."

The evidence considered by the Court showed Hederman to be right, and Finlay to be wrong, as it records the psychologist who dealt with X as saying under cross-examination that:

 "My recommendation would be she was not safe unless under supervision. I would have thought, given the state which I found her in, in-patent treatment would be essential. I don't think the parents can offer 24-hour supervision."

My italics, obviously. It 's worth noting that this evidence was never contested in the Supreme Court.

X would not be safe without in-patient treatment, said the only person who gave direct testimony as to her mental state; even though X's parents couldn't protect her, she would be safe under professional supervision. The psychologist's judgement on this was not contested. The court was aware that abortion was clearly not the only way of resolving this. There was another option.

It's just as well that the ECtHR reckons it inappropriate for constitutional courts to make medical decisions, given that Finlay's decision didn't comply with the test that he lay down. The Oireachtas has the job now of legislating to comply with that test. It should try to avoid Finlay's mistake.