The idea that the Attorney General or her representative would "turn up in a hospital" for a routine hearing for a woman wishing to have a termination was "ludicrous", a leading Irish expert on constitutional law has said.
Prof Fiona de Londras, professor of law and co-director of the Human Rights Centre at Durham University, said the Protection of Life During Pregnancy Bill 2013 already created a formula for balancing the rights to life of the unborn and of the pregnant woman required under the Constitution and there was "no need" for a separate legal advocate for the unborn.
Her comments came after former director of public prosecutions Eamonn Barnes argued aspects of the Bill were not consistent with article 40.3.3 of the Constitution.
He said the Bill was the "best attempt possible" to achieve regulation involving the risk of loss of life from physical illness, but he was concerned about cases related to suicide. He said the Bill gave women "two chances to have the life of the foetus terminated" in the case of suicide ideation, but the foetus "gets no chance" and its rights are "set at nought". He suggested the Attorney General should be represented when doctors consider whether or not a suicidal woman should be allowed a termination.
Risk to life
The Bill was drafted to clarify a judgment made by the Supreme Court in 1992, Attorney General v X, in which it found a woman was entitled to a termination where there was a real and substantial risk to her life. Ms de Londras said there was no clear legal basis for distinguishing between a risk to life emanating from suicidal ideation and any other risk to life. The X case made no distinction, she said.
She described Mr Barnes’s reference to the “life of the foetus set at nought” and to the woman getting “two chances” for termination as “a disingenuous representation”.
The Bill already took into account the right to life of the unborn, she said. And if Mr Barnes was saying there needed to be an advocate for the unborn, he needed to explain why there only needed to be an advocate in the case of suicidality. What was motivating most of the concerns was "the feeling that you can't fake physical illness, but that you could somehow fake suicidality", she said. This revealed what was thought about women, but also what was thought about the capacity of medical practitioners to make "a fairly routine diagnosis".
Reasonable opinion
"You can only have an abortion under the Bill as it stands if there is a real and substantial risk to the life of the mother that can only be averted by means of a termination, and in reaching that reasonable opinion doctors are statutorily obliged to take into account the right to life of the unborn."
Prof de Londras has published a number of books and papers including one paper on Suicide & Abortion, Analysing the Legislative Options in Ireland.
Barrister and doctor Simon Mills said he was of the view the balancing called for by Mr Barnes had already been carried out by the Supreme Court in the X case.
“I think that decision was taken then and the idea that the balance between mother and unborn has to be re-litigated every time somebody seeks a termination under the Act may be mistaken,” he said. “It is not implausible to say there is a constitutional voice for the unborn, that is absolutely true, but it may well be that X determined how that balancing act is to be carried out.”
He also said it was likely the constitutionality of the Bill would be tested if President Michael D Higgins decided to refer it to the Supreme Court or through an interested party challenging it in the courts.
