THE INTRODUCTION OF assisted dying legislation would not require a referendum because of the Supreme Court’s judgement in the Marie Fleming case, experts have said.
TDs are set to debate the Dying with Dignity Bill 2020 in the Dáil today, ahead of a vote next week on whether the proposed legislation should progress in the Oireachtas.
The bill would legislate for assisted dying if it became law, which would allow medical professionals to assist terminally ill patients to end their own lives.
The Government confirmed on Tuesday that it will table an amendment to the bill that would allow a special Oireachtas Committee to examine the issue.
The proposed amendment mentions that assisted suicide gives rise to constitutional issues, as well as ethical, moral and criminal justice matters.
The idea of holding a Citizens’ Assembly on assisted dying had previously been mooted, but it is accepted that this would prove difficult in the midst of a pandemic.
Citizens’ assemblies previously considered the issues of abortion and marriage equality and recommended separate referendums on both issues.
However, constitutional experts say a referendum would not need to be held to allow a law for assisted dying to be passed by the Oireachtas.
David Kenny, an Assistant Professor in Law at Trinity College Dublin, told TheJournal.ie that the Supreme Court had specifically found that it is for the Dáil to decide whether it is in the common good to enact a law on the right to die.
“The court said in the Fleming case that the legislature gets a wide berth when it comes to complex matters of social policy, particularly on issues like assisted dying,” he explained.
“There isn’t enough constitutional law on this point, and the courts have expressly said in a couple of different ways that it’s for the legislature to decide whether or not to do it.”
In 2013, the court found that Fleming – a seriously ill woman who had multiple sclerosis (MS) - did not have a right to die under the terms of the Irish Constitution.
Fleming had laid the foundation of her case on the express right to life in Article 40 of the Constitution, but the court found that the right to life did not import a right to die.
In rejecting her argument, the Supreme Court repeatedly referred to Article 15.2 of the Constitution, which states that ”the sole and exclusive power of making laws for the State is hereby vested in the Oireachtas”.
Kenny believes that stopping the legislation progressing because of constitutional objection would therefore be wrong, describing it as a “misunderstanding of the Constitution”.
Those comments were echoed by Professor Laura Cahillane of the School of Law at the University of Limerick, who said the court’s message in the Fleming case was that the Oireachtas could legislate for assisted dying without holding a referendum.
But she warned that any legislation put forward by the Oireachtas would have to contain adequate protections for citizens.
Without this, it is believed that the law could be open to a constitutional challenge.
“You don’t necessarily need a referendum to bring assisted dying in, although you could if you wanted to be very careful about it,” she says.
“What is necessary is that the legislation is very carefully drafted, so that you don’t have situations where people are vulnerable or where people can be taken advantage of.”
Right to die vs. other rights
Cahillane explains that there are several provisions in the Constitution which could open up a challenge if assisted dying legislation is not drafted carefully.
She points to Article 40.3.2, which provides for a right to life, as well as other rights such as rights to bodily integrity, dignity, and decision-making.
If future legislation did not account for these rights, one could theoretically argue that the law could put too much pressure on a person who is dying.
“Let’s say you have an old farmer who’s dying, and their child wants to get their hands on the family farm and they’re pressuring their parent to take their own life,” Cahillane says.
“In that scenario, you could have people arguing that it’s affecting their right to life, to bodily integrity, and to dignity, because they feel under pressure, and they haven’t been given adequate protection in the legislation.”
The Dying with Dignity Bill does contain a number of safeguards to ensure a person would be qualified to make a decision to end their own life, including a declaration from a witness (who would not benefit from their estate) that they wished to do so.
Meanwhile, it is also believed that the constitutional protection of the right to life would not clash with an allowance for the right to die, because the right to life does not mean that everyone has to stay alive.
Kenny points to the example of suicide, which was decriminalised in the 1990s, as an area where the State does not have to insist on the preservation of every life.
“The simple protection of a right to life, and the State’s duty to vindicate it, doesn’t mean that the State cannot legislate for some assisted dying provision,” he adds.
“The Supreme Court specifically said as much in the Fleming case. It is, in the first instance, up to the legislature to make the decision.”
‘Scaremongering and sensationalising’
Meanwhile, People Before Profit TD Gino Kenny has hit out at “irresponsible” commentary from opponents of the Dying with Dignity Bill ahead of today’s Dáil debate.
Kenny, who introduced the bill in the Dáil, said it contained restrictions and oversight to ensure those who wish to avail of assisted dying can do so in an informed and transparent manner.
“Some of the commentary from those who oppose the passage of this legislation is attempting to muddy the waters and block any progress on this issue regardless of the pain and suffering that their opposition is causing,” he said.
“The scaremongering and sensationalising of this issue, and the misrepresentation of the facts is extremely irresponsible.”
Sinn Féin, Labour, the Social Democrats and People Before Profit have all said they will vote in favour of the bill next week, but there are some Independent TDs who will not.
“It’s very difficult for governments to argue against suicide in the general public and say that suicide is never an answer, then say sometimes it is an answer,” Aontú TD Peadar Tóibín said.
“I think that if we go down that route, that’s a very dangerous route.”
Members of Cabinet will be bound to support the Government’s amendment, but it is believed that ordinary TDs in Fianna Fáil, Fine Gael and the Green Party could get a free vote on the issue next week.
Last week, Fine Gael TDs and Senators spoke in favour of a free vote on the legislation, although others raised concerns about the divergence of opinion on the issue.
Green Party leader Eamon Ryan also said last week that there was “flexibility” within is party on the issue when he indicated that he could allow a conscience vote on the bill.
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