Commentary on the non-applicability of the recent Northern Ireland judgement on abortion to the Republic of Ireland

Liam Gibson, the Northern Ireland representative for the Society for the Protection of Unborn Children, has prepared a commentary on the recent Horner judgement with respect to the Republic of Ireland.
This is a very timely commentary as it is likely that the judgement will be cited by pro-abortion organisations and politicians in the lead up to the coming general election.

Why the Horner judgement cannot be used to change the law in the Republic of Ireland.
The salient points of Liam's commentary are included below.

1. The ruling by Mr Justice Horner that abortion laws in Northern Ireland are incompatible with the European Convention was not based on his interpretation of the Convention. Instead he claimed that the Northern Ireland law, unlike the law in the Republic, does not recognise the right to life of the unborn child. (This claim is untrue but was based entirely on UK law. Not only can his judgement not apply to the Republic, he actually set out to use the law in the South to undermine the law in the Six Counties.)

2. He acknowledged that the Strasbourg Court of Human Rights did not find the Republic’s law, which prohibits abortion on grounds of fatal anomaly and rape, to be incompatible with the Convention. (In A B & C v Ireland the court said that C had been prevented from obtaining an abortion that would have been lawful because her life was threatened and therefore her rights were violated.)

3. Horner cited various English cases, including Paton v UK and Re MB, to claim that unlike the Republic, under English law the foetus had no right to life. He then claimed that the situation in Northern Ireland was the same as England by pretending that the absence of the Abortion Act in Northern Ireland made no difference.

4. He explicitly pointed to the differences between the law in the Republic and the North:

• The Eighth Amendment recognised the right to life before birth with the purpose of  preventing the legalisation of abortion;
• The Eighth Amendment was adopted by popular vote; 
• As Strasbourg said in Open Door v Ireland, it was based on the profound moral views of the Irish people on the nature of life; 
• No one knows what the people of the North think about the subject. (He was either ignorant of or disregarded the public consultation which took place less than12 months earlier which overwhelmingly rejected a change in the law.)

5. The Convention requires restrictions on the Article 8 right to privacy to be, among other things, proportionate to their aim. He argued that since the foetus has no right to life, punishing abortion with life imprisonment was disproportionate and therefore violated the Convention when it prohibited abortion in the circumstances he approved of, that is, fatal abnormality and rape. (He should have recognised that the severity of the sentence reflected the high regard in which the foetus is held. The 1861 Act and the 1945 Act require life imprisonment precisely because abortion deprives the unborn child of his life.)

6. Mr Justice Horner did not claim that the Convention recognises a human right to abortion so the Republic does not have to change its law. He acknowledged that Art 40.3.3 prevents the legalisation in the Republic of abortion on the grounds he dealt with and that this is entirely compatible with human rights. The Horner judgement only confirms the importance of the Eighth Amendment and pro-lifers must fight to keep it in the Constitution.

The full text of the commentary can be provided. Please contact Patrick Buckley on the following e-mail address. patrick@europeanlifenetwork.org
 

There is no legal requirement for suicide exemptions

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Very important article by Maria Cahill that appeared in the Sunday Business Post 23-06-2013.

Although the European Court of Human Rights specifically requested that Ireland provide legal clarity in relation to lawful medical treatments in pregnancy, the political rhetoric surrounding the introduction of the Protection of Life during Pregnancy Bill has been a model of legal obfuscation.

The government has been keen to emphasise that it is obliged to legislate to introduce abortion on the grounds of suicidal intent, and both the Taoiseach, Enda Kenny, and the Minister for Health, James Reilly, have, on countless occasions, presented this 'obligation' as deriving from law: from the Constitution, the European Court of Human Rights or the Supreme Court.

As long as this political rhetoric about legal obligation holds sway, frank debate about the terms and merits of the legislation is almost impossible. Indeed, so long as this political rhetoric is unchallenged, there is no necessity for the minister to present the legislation as medically justifiable and legally legitimate; he can simply say that he has no choice.

Is the government constitutionally obliged to legislate for a Supreme Court judgment? No, as a matter of law. The Constitution gives permission to the Dáil and the Seanad to legislate, rather than imposing such an obligation on them. There are examples dating all the way back to 1965 of the court establishing that various rights exist, only to have 14 successive governments decline, in the lawful exercise of their discretion, to legislate to provide an express statutory footing for these rights.

The only constitutional obligation is that legislation must remain within the terms of the Constitution. In this instance, the right to life protected in Article 40.3.3 must be fully vindicated.

Is the government legally obliged to legislate for a suicide-based exemption from the right to life because of the European Court of Human Rights ruling in the case of ABC v Ireland? No, as a matter of law. The rules of the committee of ministers require that Ireland should adopt measures that are "effective for preventing the recurrence" of the breach that was found in the case of ABC v. Ireland.

Applicant C, following an internet search, diagnosed that her cancer might return during her pregnancy, and then went to England to have an abortion. She was not suicidal. A suicidebased exemption from the right to life would not have clarified her legal position at all.

Apart from the fact that the Oireachtas is under no constitutional obligation to legislate for the X case, is a future court bound by that precedent to allow suicide-based exemptions from the right to life? No, as a matter of law. The X case is in a separate category of judicial decisions because of what it did not decide. As every first-year law student learns, a precedent is only binding in relation to the points that were decided in the case. All the points that were “entirely overlooked or conceded without argument" are not part of the decision, as the Supreme Court itself ruled in 1965. If a point is not argued before the judge, the judge cannot make a decision on that point, and there is therefore no precedent on that point. If it were to be otherwise - if precedents could be made based on what the judges did not decide in court - then we would not be living under the rule of law.

In the X case, the attorney general did not contest whether abortion was an appropriate treatment for suicidality. That is why neither the High Court nor the Supreme Court heard any legal arguments or medical evidence on the question of whether suicidality should be treated by abortion. The point was entirely overlooked or conceded without argument and therefore, according to the Supreme Court, no precedent exists on that point.

Is the X case the most recent legal decision in the area of suicidebased exemptions from law? No, as a matter of law. In 2006, the Cosma case concerned a woman who threatened to commit suicide if she were deported. The High Court based its ruling on the test of "real and substantial risk" determined in the X case, but developed that test in important ways. First, it required that the risk should be demonstrated in the context of an ongoing psychiatric relationship where the patient would receive counselling and all psychiatric treatment that she needed. Second, it held that she should demonstrate that all other avenues for treating her suicidality should have been thoroughly considered before concluding that revoking the deportation order was necessary.

Moreover, the court ruled that the Minister for Justice was entitled to take into account the 'floodgates' argument and to refuse to quash the deportation order because other people might abuse a suicidebased exemption. The minister had argued that allowing suicide-based exemptions would open "a Pandora's box" with the effect of "paralysing" the operation of the rule of law in general. The concept of suicide-based exemptions from law is a new one in the Irish legal system and it warrants careful consideration. There are many cases, like the Cosma case, where people have presented psychiatric evidence regarding their suicidal ideation because of a deportation order or a European arrest warrant; should they now be granted exemptions by the courts?

There are also many unfortunate instances of Irish people who are suicidal because of crippling financial constraints; should they also be granted suicide-based exemptions from making mortgage repayments or paying taxes? Before embarking on this entirely novel approach to legislative obligation, shouldn't we ask the question whether there is psychiatric evidence supporting suicide-based exemptions from law as an effective way of treating suicidality?

The legal reality is that there is no obligation on the government deriving from the Constitution or from the European Court of Human Rights or from the Supreme Court to propose legislation for a suicidebased exemption from the right to life. When we hold to that legal reality, we can then begin to debate the real question: is it just to propose that the right to life of one person can be denied if another threatens to commit suicide due to the very existence of that first person? This is the question that should be discussed in Dáil Eireann this week.

Dr Maria Cahill is a lecturer in constitutional law in University College, Cork, and was invited by the Oireachtas health committee to give evidence at the hearings on the heads of the bill in May

New Threat to Ireland's Pro Life position from Council of Europe

Council of Europe Commissioner Thomas Hammarberg during his visit to Dublin last week demanded that the Irish Government should respond to the decision of the European Court of human Rights decision and legislate for the introduction of abortion in Ireland.

The following press release by Dana Rosemary Scallon challenges Hammarberg's demands

Council of Europe Commissioners should keep out of Irish Constitutional affairs and mind their own business. 

Commissioner Hammarberg, while visiting here last week, demanded that the Labour / Fine Gael government legislate for abortion. His meeting was hosted, according to reports, by Labour leader and Tánaiste, Eamon Gilmore; Fine Gael’s Minister for Justice Alan Shatter and was also attended by members of some chosen groups.

It is not the job of Council of Europe Commissioners to act as tourists going around Europe promoting abortion. An unelected Commissioner has no right to bully and intimidate the Irish people or seek out politicians who would provide an “open door” for their agenda.

Both Minister for Justice Alan Shatter and Tánaiste Eamon Gilmore must know full well that last year’s ECHR opinion is not binding on Ireland. The question is why did they not tell him so?    Also why did they miss the opportunity to tell him that the Irish people, as Ireland’s Attorney General has previously stated, have spoken in 3 referenda rejecting abortion?”

 Regardless of their own personal opinions it is a duty of Ministers to represent the democratic views of the Irish people. We are a Sovereign Nation and the people, under Ireland’s Constitution, make all decisions relating to this matter.

We are dealing with nothing more than an opinion of the European Court which has no legal authority and whose decision is not binding on Ireland. An Taoiseach Mr. Enda Kenny must tell the Council of Europe Commissioner that this matter can only be decided on by the Irish people and that he will also uphold his election promise not to legislate for abortion.

Pro-Life Demonstration against Irish Labour party threat to introduce abortion

Following the ‘ABC’ case, brought before the European Court of Human Rights recently (please see my blogs for 11 January 2011, and 29, 17 and 16 December 2010) the Labour Party in Ireland, as previously reported, announced that if they succeed in being part of the next government here they will introduce laws to allow for abortions to be carried out in Ireland.

In response to this declaration on the part of the Labour Party, Youth Defence arranged a huge demonstration and protest at the local Labour Party constituency offices at Booterstown, on the outskirts of Dublin city, on Saturday last.     Young people, and not so young people, children, babies in prams and buggies, came from many parts of Ireland – north, south, east and west – to give their support to the ‘call to arms’ on behalf of unborn children.   Placards and posters carrying different messages, such as ‘Gilmore: No abortion here’ (Eamon Gilmore is the Leader of the Labour Party), and others warning that Party not to interfere with Ireland’s pro-life laws, etc., were prominently displayed by those present, who lined the footpaths on both sides of the road and also a large traffic island in the middle of the road.  A long banner was held aloft by five or six young people, and this declared the message that abortion must not be introduced into Ireland against the will of the people –

‘NOT IN MY NAME’ is what motorists and bus passengers saw in large lettering as they passed by.   

There was an extremely busy two-way flow of traffic at the meeting point – which also has an intersection, resulting in traffic being constantly delayed by traffic lights, thus giving everyone a great opportunity to see the pro-life messages.   

Although the rain was falling fairly continuously it did not deter the pro-life people – it never does!

New attempt to pressurise Ireland to introduce abortion in the wake of the A,B and C case

No sooner had media coverage on the A, B and C case started to die down than another ‘case’ comes to light.   Isn’t it extraordinary how this happens?

The newest case – for the moment – is that of a thirty-nine-year-old English lady who is reportedly suffering from cancer and who became pregnant earlier this year.   While we have, and indeed must have, full sympathy for her in relation to her cancer, her case is now being used by pro-abortion organisations and media in an intensified push towards having abortion legalised in Ireland.

The Irish Times admonishes us that – ‘Time and again, in the history of our abortion debate, life throws up profoundly painful cases that test the limits, ambiguities and inadequacies of our law and of the politics of denial that underpin it.’   (That’s media-speak for ‘we must legalise abortion in Ireland immediately.’) The newspaper continues on the same theme – ‘As she faces into an uncertain, curtailed future she has shown a real courage, … in speaking out about her treatment to ensure that others do not have to go through the same hell.’

The right to life of the unborn in Ireland has constitutional protection and there is a supreme court ruling on the relevant article as it related to a woman who it was claimed at the time was suicidal. While diverging judgments were delivered in the X-case ruling the judgment of Finlay CJ is often cited 

–if it can be 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.

But, ‘termination of her pregnancy’ is simply that, each of us terminated our mothers pregnancy by being born. Termination of pregnancy does not imply abortion even though it is regularly interpreted in this way.   Abortion is the direct killing of the unborn baby, by whatever means, and at whatever stage of pregnancy.   Termination of a pregnancy consists of – necessary medical care for both mother and unborn baby.  This is, and has always been, established Irish medical care and ethics.   If the baby unfortunately dies, then that is not abortion – the intention is to save the lives of both mother and baby.

However, to return to the latest case to be used by the pro-abortion lobby – it seems that the consultants caring for the woman sought the advice of the ethics forum at the hospital involved as to whether she was ‘eligible for an abortion in Ireland’ because she was ‘suffering from a life-threatening illness’.   According to reports, the ethics forum, having considered the issue ‘for at least a week, or possibly two’, ruled against her.    Then, following a further three weeks spent organising travel and finding a suitable institution in London, the woman underwent an abortion of her 10/11 weeks-old unborn baby during the summer of this year.   She was so unwell and weak that she had to be helped onto the London-bound aircraft by her partner.

The woman is quoted as saying – ‘The delay in having an abortion could well have made my condition much worse … But why is it that such a simple medical treatment is not available, even when a mother’s life is at risk?’

Abortion is not a treatment for cancer, but real treatment for cancer would not have been withheld in this case even if as a consequence of that treatment the unborn baby had died, this would not have been a direct attack on the life of the unborn baby. Neither is abortion ‘a simple medical treatment’.   Abortion is the intentional killing of an unborn baby at any stage of his or her life from conception onwards.

It has now emerged that that the hospital consultants in question were ‘guided, but not instructed’ by the findings of the hospital ethics forum.   The forum, when approached by medical staff involved in making ethically difficult decisions, offers ‘informed opinion’.     So it was not the ethics forum that made the decision that the lady could not have her baby aborted in Ireland.   Just another example of media hype in an effort to influence ordinary people towards an acceptance of abortion. 

Ireland’s day for life: Cork Conference celebrating 25th anniversary of the pro-life amendment

Held at Frankfield/Grange parish centre in Douglas Cork, the conference was organised as a series of four panels dealing with different aspects of the pro-life amendment of the Constitution and its implications for Ireland . The event included campaigners from the 1983 referendum as well as medical, economic, legal and ethics experts from all over Europe.

Speaking on this historic anniversary, Kathy Sinnott, who is Vice President of the Bioethics Intergroup and the Intergroup on Family and Protection of Childhood in the European Parliament, said,

The laws protecting life are fragile and need ongoing commitment from our lawmakers, especially in a Europe where many consider such protection obsolete.

The first panel looked at the historical perspective and was presented by a panel of pro-life activists from the Munster region, who looked at the issues involved in first establishing the pro-life protection and then maintaining it despite the myriad attacks which have wounded but not overturned it

The second panel looked at the medical social and economic benefits of the pro-life amendment over the 25 year period. Dr John Monaghan pointed out that that the level maternal care in Ireland is excellent and as a result Ireland’s maternal mortality rate is the lowest in the world. Patrick Fagan of the Family Research Council produced US Federal statistics which clearly show that the safest and most beneficial place for children is to grow up in an intact home having a married mother and father who are regular church attendants. From the social science perspective the more an individual practices religious beliefs the more he/she thrives in education, health and mental health, marriage and family and the less likely is he/she is to be involved in crime, addiction, abuse or a host of other ills.

The third panel looked at the legal and legislative challenges to its pro-life ethos, faced by Ireland from the EU, the UN, the Council of Europe, the European Court of Human Rights, the World Health Organisation and international NGO’s. Roger Kiska from the European Centre for Law and Justice outlined the current challenge to the Irish Constitution, the ABC case currently before the European Court of Human Rights The fourth panel, which looked at the constitutional protection, consisted Of Kathy Sinnott Bernadette Goulding of Rachael’s Vineyard and Fr Brian Mc kevitt, editor of the Alive newspaper

New Court Battle over Abortion in Ireland

Three Irish women who claim that their human rights were breached by their inability to undergo an abortion in Ireland are to have their case heard at the European Court of Human Rights. The Irish Family Planning Association is supporting the case, hoping the Irish government will be forced to change the law on abortion.

A case such as this highlights all too clearly the tactics the abortion lobby are prepared to resort to in their determination to impose abortion on Ireland. The unborn are protected by Ireland's constitution and should not be endangered by a court that is set up to defend human rights. If it were to be used as an instrument to attack the right to life, the European Court of Human Rights may lose all credibility when it comes to considering genuine human rights cases.