YESTERDAY WAS THE second day of hearings being held by an Oireachtas committee which is taking submissions on how the government should legislate for the X Case.
The setting was once again the Seanad where the Joint Committee on Health and Children heard a number of legal experts offer their thoughts, advice and opinions on how to go about legislating for the Supreme Court ruling in the X Case 20 years ago.
The second day of hearings was split into three sessions and included representations from Jennifer Schweppe from UL, Ciara Staunton from NUI Galway and Dr Simon Mills from the Law Library.
They were followed by Stephen O’Hare and Alan DP Brady from the Irish Council for Civil Liberties. Later, TCD professor William Binchy and former Supreme Court justice Catherine McGuinness appeared before the committee.
As we have done every day so far and will be doing today we liveblogged all of the proceedings but for a slightly more succinct version of what happened here are the 10 most interesting moments from the Committee hearings on Wednesday:
1. A bill is already drafted
TDs and Senators must have been pleasantly surprised to be greeted by one of the legal experts appearing yesterday who may have done some of the government’s work by drafting a bill which would provide for legal abortions under the terms of the X Case.
Dr Simon Mills (above), a former practising doctor and barrister, has drafted the Termination of Pregnancy Bill and submitted it to the Committee telling them yesterday that it would provide for terminations in cases where there is a threat of suicide, inevitable miscarriage, non-viable pregnancies, and in some cases lethal foetal abnormality.
The bill also restates the legal ban on abortion and includes a conscientious objection clause for doctors. Dr Mills admitted the bill, which he described as a “first stab”, needed some work.
2. There should be no time limit on abortion availability when a woman’s life is at risk
Legal experts appearing yesterday morning were unanimous in almost everything they said and all expressed the view that there should be no time limit placed in any legislation which would restrict the point at which a doctor can intervene to save the life of a woman.
Ciara Staunton, from NUIG, expressed the view that if a woman’s life was at risk at 35 weeks pregnancy and her doctors recommended termination then it should be allowed, with the woman’s consent. At the same time, doctors should make every effort to save the unborn’s life.
3. The Constitution allows for abortion of non-viable pregnancies
The Constitution allows for abortions to be carried out in cases where a foetus has no prospect of survival outside of the womb, three legal experts appearing yesterday morning told the Committee.
A ruling in the Roche v Roche case in 2009 has determined this to the case, Jennifer Schweppe from the University of Limerick, argued. On fatal foetal abnormalities Schweppe expressed the belief that 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, for example in the 8th Amendment.
However, this does create an issue for a case where a baby will only survive for a few moments or a few hours once born. Dr Mills summed up the problems this creates when he said: “There is something disturbingly utilitarian [...in the current constitution] in that it comports an obligation to be born, only to suffer and die.”
4. There is a middle/moderate ground in the abortion debate
Whether you agree or disagree with him it was hard not to be impressed by Dr Mills’ presentation to the Committee yesterday where he also identified what he called a ‘moderate position’ which has the support of people on the pro-life and pro-choice sides.
He expressed his belief that the abortion debate was three-sided – those who are pro-life, those who were pro-choice, and those who adopt a more moderate position. The latter position, he believes, represents the majority of the public who want to legislate for X.
This middle ground was also identified by former Supreme Court justice Catherine McGuinness who urged legislators to look at the “middle ground” when formulating their bill and not to the extremes of either side.
“Think about the middle ground, the majority of the constituents,” she told TDs and Senators.
5. The ‘floodgates’ argument did not convince most legal experts
There has been much discussion about whether legislating for X would lead to the ‘opening of the floodgates’ and a more liberal abortion regime in Ireland. Most of the legal experts who appeared yesterday were asked about this with Fine Gael TD Mary Mitchell-O’Connor particularly keen to know what safeguards could be put in place to prevent ‘floodgates’.
Staunton said that this fear was “completely unfounded” because of the strict parameters of X while Schweppe said that to suggest that legislating would allow doctors to carry out abortions in a more general way would be to diminish the medical professions.
Later McGuinness told members of the Committee: “We ought to have more trust in Irish people and Irish doctors… To say that [the floodgates will open] is to say everyone will be galloping to do something we don’t do already.”
However appearing later in the day, TCD professor William Binchy argued that a change in culture would follow a change in the law and abortion would be more freely available in Ireland as a result.
6. Suicide must be included in any legislation
The suicide issue remains the most controversial element of the X Case ruling but the legal experts who appeared yesterday morning were all in agreement that legislating for X means legislating for abortion in cases where the mother's like is at risk, including from suicide.
"To question its justification is to stigmatise mental health," Schweppe, from the University of Limerick, told the Committee.
7. But, the risk of suicide must stem from the pregnancy
Staunton raised an interesting point about assessing the threat of suicide. She said that in order to satisfy the Constitution abortion can only be provided for if the risk of suicide is determined by doctors to be a consequence of the pregnancy itself and not, for example, the circumstances which led to the pregnancy. A broader mental health complaint is not a valid reason for carrying out a termination, in her view.
8. There is an argument for not legislating for X
Though the government has already committed to legislating for the X Case by way of a law and regulations and the purpose of these hearings is to inform the drafting of that law this has not stopped the point being made that legislation may not be needed.
Professor Binchy (below) was particularly vocal on this. Though appearing as a legal expert he swayed into the political aspect of the debate by stating that Fine Gael had broken a pre-election promise by committing to legislate for X in recent weeks.
Most of his presentation and answers centred on his legal belief that the State did not have to legislate for the Supreme Court's decision in the X Case as a response to the A,B, and C versus Ireland judgement in the European Court of Human Rights.
He said clarity could be brought by protocols and standards. These would satisfy the ECHR.
Much has been made of the unintended consequences from the introduction of limited abortion in the UK in the 1960s by the Liberal Party (now Liberal Democrat) MP David Steel who later wrote that his law needed rethinking.
The fear among pro-life advocates is that legislating for X will eventually lead to a more liberal abortion regime but the view of the legal experts was that the situation in Ireland cannot be compared to that of the UK.
"The UK is completely different, and we should not look to the UK," Staunton told the Committee while Dr Mills said that the solution to preventing what Steel referred to was very simple, the government here should not introduce the 1967 Abortion Act that was made law in the UK.
Instead the government should introduce something that is consistent with article 40.3.3 as determined by the Supreme Court 20 years ago.
10. It's getting tense
By-and-large Committee chairman Jerry Buttimer has done an excellent job of ensuring the hearings do not descend into shouting matches but that has not stopped the emergence of some tense moments in what have been unusually long and in-depth hearings this week.
One such moment yesterday was when Senator John Crown asked Binchy, as a lawyer, if the Committee should ignore the Supreme Court and two referenda? “Who is the authority we should be answerable to?” Crown asked. “Is he [Binchy] suggesting a constitutional coup?”
Crown asked for Binchy's pre-prepared statement to be struck from the record because it referred to the case of a woman whose death certificate was yet to be released. He said that suggestions of causes of death were included and were, therefore, not appropriate.
Binchy responded by saying he would try to not be personal, adding that he felt there was a "tinge" of the personal to Crown's presentation and questions. Chair Jerry Buttimer later clarified that the sections of Binchy's presentation questioned were quotes from the Irish Times.
It was a moment in which things threatened to boil over but day two was relatively calm and everyone will be hoping the same will be the case when religious and advocacy groups appear today.
(All images: Screengrabs via Oireachtas.ie)
- additional reporting from Sinead O'Carroll, Gavan Reilly.
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