Creighton abortion bill move cannot exclude suicide test
Directing her not-so-friendly fire at her cabinet colleague chums, who announced the Government’s intention to enact X case legislation a few short weeks ago, the European Affairs Minister haughtily declared that she intended writing her own draft abortion legislation that will omit the controversial suicide test.
In an interview with the Sunday Times, the Fine Gael TD said that while she recognised the X case judgment had to be “acknowledged” in any legislation, she was not sure it had to be enshrined in law.
Now, I know what you’re thinking. Acknowledging something in legislation does actually enshrine it in law but, in her defence, the minister has herself said that she is somewhat confused.
So, in the hope of saving Ms Creighton pointless long hours spent toiling over dusty legal tomes, this column is happy to set the record straight.
It is not possible to butcher the X case judgment, by omitting a substantive part of it, when drafting X case legislation. Presaging the desperate disingenuous lengths that politicians would go to in an attempt to muddy the waters on this issue, former Supreme Court justice Catherine McGuinness made this exact point at the Oireachtas hearings last Wednesday.
“[The Supreme Court] follows a rule known as stare decisis, which means that what is decided stays decided,” she said. “One cannot really expect the whole thing to change ever so conveniently in such a way as to make it easier for legislators. What the Supreme Court decides is the law.
“Unfortunately for the committee, that included suicide ideation or the ground of suicide. This can of course be changed if a referendum takes place.”
Ms Creighton, a barrister, would have learned this in her first year of law school, but perhaps she didn’t attend many of her constitutional law lectures.
Clearly, the minister is not a very good student of history either, otherwise she would know that drafting legislation without the suicide test is exactly what was tried in 2002. But, on that occasion, the government was at least cognisant that any such legislation would require a referendum to change the constitution — which, as we all know, was rejected by the people.
Suggesting, as the minister has done, that it is possible to draft such legislation without an accompanying referendum is a complete misrepresentation of the legal position and achieves nothing except further polarisation of an already divisive debate.
In any event, Ms Creighton’s ignorance on this basic tenet of law doesn’t inspire much confidence in her ability to draft legislation but hopefully Enda, if he’s not too miffed at her solo run, will let her keep the day job. Of course, if the minister really wants to martyr herself for this issue, then she is can vote against the Government when it introduces its legislation in the Dáil, but it remains to be seen if she is willing to lose the trappings of ministerial office in pursuit of a principled stand.
The abortion debate is no longer about whether legislation will be introduced, but how that legislation will be framed to incorporate the X case tests.
So, while Ms Creighton last week busied herself undermining Government policy, other unelected people were actually doing the State some service.
Nailing the lie that abortion legislation will necessarily be a hugely complex bill to draft, barrister Simon Mills managed to come up with a draft version in his spare time over the Christmas holidays.
The Mills Bill stipulates that suicidal women seeking an abortion should be required to undergo rigorous medical assessments — four in total — with at least two undertaken by a consultant psychiatrist. This is much more robust than the test that was applied in the X case, when a psychologist assessed the teenage rape victim and, theoretically, could leave the bill open to legal challenge.
Having queried the rationale for four separate assessments, especially given the deplorable state of our mental health services, Dr Mills told me that, in his view, the fact that a psychologist’s assessment had been sufficient for the Supreme Court in 1992 was not determinative of anything.
He said that, as medics, consultant psychiatrists are more tightly regulated than psychologists and, as that’s the test being applied on the other grounds, with doctors determining if a real threat to the life of the woman exists, he felt it was more consistent to include them in legislation.
“It is important to add that the provisions in the bill are… an attempt to steer a middle ground that, on the one hand, permits suicide as a ground without imposing a regime that is too onerous, while offering some comfort to those who are opposed to its inclusion by ensuring that it is, at least, a somewhat robust assessment,” said Dr Mills.
“The evidence I heard at the Joint Committee satisfied me that a single obstetric assessment would be sufficient, and while the bill posits psychiatric assessment on two separate occasions, if the balance of psychiatric opinion was that only one assessment was necessary, then I would defer to that view.”
SEEKING clarity on this issue, I also spoke with Clinical Professor in Psychiatry Veronica O’Keane, and she agreed with Dr Mills that a consultant psychiatrist should conduct the assessment. She cautioned against including any specification in the legislation as regards the number of assessments and said that this, the best medical practice, should be confined to the regulations that the government is drafting in tandem with the Bill.
“Each woman’s situation will be different so it is imperative that medics have some degree of flexibility and this would be best served with regulations instead of having very specific tests written into primary legislation,” she said.
Consequently, she said it would be helpful if the Government asked the Irish College of Psychiatrists for its expertise, regarding emergency assessment of suicide ideation, when drafting the regulations.
Prof O’Keane also raised a concern about the possibility that some within the profession, for personal ethical reasons, would refuse, in any circumstances, to view abortion as an option and said it was imperative that women, if assessed by one of these medics, would have the ability to seek a second opinion.
Although any legislation will likely have a section that deals with conscientious objectors, Prof O’Keane said it would be up to psychiatrists to opt out and it was possible that some simply wouldn’t: “We need to be careful to ensure that medics, when this legislation is enacted, are implementing the law and not their personal opinion.”
Patently, there is still much to debate about the contents of the bill and, particularly, the framing of the suicide test, which, despite Ms Creighton’s protestations, cannot be excised from legislation.
CONNECT WITH US TODAY
Be the first to know the latest news and updates
