LEGAL ANALYSIS: The legal position on abortion may come under pressure following the latest referendum, predicts Legal Affairs Correspondent, Carol Coulter
Although campaigners for a Yes vote have warned that a No vote would lead to a liberal abortion regime, no proposals for any kind of abortion, liberal or otherwise, are on the table.
Today, as yesterday, abortion is illegal in Ireland, except where the "equal right to life of the mother" is under threat. However, the pressure will now intensify to clarify in legislation, what this means.
There are three forms of prohibition on abortion - constitutional, legal, and by medical practice. The Constitution guarantees the right to life of the unborn, which is undefined, subject to the equal right to life of the mother.
From the adoption of this amendment to the Constitution until 1992 the right to life of the mother was held to cover rare life-threatening conditions where the mother required a termination of her pregnancy to save her life. This included some forms of cancer and certain severe circulation disorders.
However, when in 1992, the girl in the X case was injuncted from travelling for an abortion because of the amendment, the Supreme Court held she had the right to an abortion because she was suicidal, and this amounted to a threat to her life. This judgment meant that an abortion could, under the Constitution, be carried out in Ireland if the mother was suicidal. This has never happened.
In the aftermath of this case, amendments to the Constitution were passed guaranteeing the right to travel for an abortion, and the right to obtain information about abortion services available in other states.
However, the legislation that followed makes it illegal for doctors or agencies to directly refer women abroad for abortions.
Abortion is also prohibited under the old British 1861 Offences Against the Person Act, which is still on the statute books.British case law on this allowed for abortion to preserve the life of the woman, extending it to an abortion performed to prevent her from becoming a mental or physical wreck.
However, Mr Justice Keane commented in a case brought here by SPUC against the student unions that it was unlikely this judgment, the Bourne judgment, would have been followed in this State.
But the main obstacle to any abortions in Ireland under the 1992 X case judgment was the Medical Council. Its 1998 ethical guidelines (which were similar to the previous guidelines) stated: "The deliberate and intentional destruction of the unborn child is professional misconduct. Should a child in utero suffer or lose its life as a side effect of standard medical treatment of the mother, then this is not unethical."
This meant that no doctor could terminate a pregnancy on the grounds of the threat of suicide without facing being struck off the Register of Medical Practitioners.
But last year the ethical guidelines were changed, and now state that the termination of a pregnancy can occur when there is a substantial risk to the life of the mother.
The guidelines also state that the council subscribes to the guidance of the Institute of Obstetricians and Gynaecologists on this issue.
The threat of suicide is not specifically excluded, though at the press conference announcing the guidelines it was stated that this threat was not seen as a basis for termination of pregnancy by the Institute of Obstetricians and Gynaecologists.
Without legislation it will take another case to clarify law and medical practice in this area.
Now that the amendment has been defeated, the following scenario is a possibility: a young girl is brought into a major hospital, blood dripping from her wrists. She has attempted to commit suicide because she been raped, is pregnant and feels suicidal.
She insists she will try to kill herself again if she cannot get rid of the baby. An obstetrician performs an abortion.
The obstetrician is reported to the Medical Council ethics committee. There he or she argues there was a "substantial risk" to the life of the mother. This falls under the council's ethical guidelines. Even if he was struck off, he could appeal to the High Court, and, ultimately, to the Supreme Court.
There the precedent of the X case, as well as the terms of the guidelines themselves, would provide him (or her) with very substantial grounds for victory.