The X case

MagicSean

My understanding of this case is that the decision meant that the threat of suicide could be considered a threat to the life of the mother. The court also advised that the government needed to introduce a legal framework to implement this decision. But in reality, no legislation was actually changed and it is still technically illegal to perform an abortion under any circumstance. Is my understanding correct or not?

Ashashi

It is not illegal, the courts have decided that abortion is allowed in special circumstances, which is a threat to the mother's life.

However, the problem is that there is no guidelines for medical professionals and they are wary of inducing an abortion because they may be liable under criminal law, so medical professionals are very wary of commenting and deciding on a medical abortion.

I think it was Henchy J. that stated that courts cannot become a licencing system for abortions so the courts have decided that it is not illegal in certain circumstances and the government have failed to provide these guidelines, which would be in the form of legislation.

krd

Ashashi wrote: »

It is not illegal, the courts have decided that abortion is allowed in special circumstances, which is a threat to the mother's life.

But there has been no clear cut legislation. And it cannot work without clear cut legislation.

If a woman has a condition that would make pregnancy life threatening. If she goes to her doctor, and he performs a termination. They could both be liable for prosecution. Because who is to determine what is a threat to life or a threat to the health of a woman. There are medical conditions where death is high probability, but it's not a foregone conclusion. One medical professional may be a gambling man, another wouldn't. They will, and do, go as far as keeping someone in intensive care for the entire term.

If the woman was suicidal, the holy water brigade could argue, that there was no threat to her life. That she could have been put in a straight jacket and tied to a bed until she had reached full term.

However, the problem is that there is no guidelines for medical professionals and they are wary of inducing an abortion because they may be liable under criminal law, so medical professionals are very wary of commenting and deciding on a medical abortion.

No, they do have guidelines. There was a point a few years back where they weren't even doing evacuations - that's where there are fetal abnormalities there is no chance of survival for the fetus - they used to send women off to England - a fetus can have a heart beat but no brain. They're still on very shaky ground. What they may do, is do something that would indirectly induce an abortion. What happened in Galway to Savita Halappanavar may have been against medical guidelines.

I think it was Henchy J. that stated that courts cannot become a licencing system for abortions so the courts have decided that it is not illegal in certain circumstances and the government have failed to provide these guidelines, which would be in the form of legislation.

And the government will not legislate because the only option is law that will both protect the doctor and the woman - and that is full and free, abortion on demand. Effectively, they want no abortion under any circumstances.

MagicSean

Ashashi wrote: »

It is not illegal, the courts have decided that abortion is allowed in special circumstances, which is a threat to the mother's life.

However, the problem is that there is no guidelines for medical professionals and they are wary of inducing an abortion because they may be liable under criminal law, so medical professionals are very wary of commenting and deciding on a medical abortion.

I think it was Henchy J. that stated that courts cannot become a licencing system for abortions so the courts have decided that it is not illegal in certain circumstances and the government have failed to provide these guidelines, which would be in the form of legislation.

But they did not strike out the law and they cannot add or change it so technically an abortion is still illegal. The dpp might choose not to proceed and rely onthe supreme court decision but it is still against the law is it not. The Supreme court can interpret law and can stike it out as unconstitutional but they cant just say "pretend it isn't there"

gozunda

MagicSean wrote: »

But they did not strike out the law and they cannot add or change it so technically an abortion is still illegal. The dpp might choose not to proceed and rely onthe supreme court decision but it is still against the law is it not. The Supreme court can interpret law and can stike it out as unconstitutional but they cant just say "pretend it isn't there"

The Supreme Court clarified the existing constitutional stand on terminations allowing such terminations where there was a risk to the life of the mother.

What bit do you not get


For someone who claims not to be a a RC you appear very fixated on the whole "sanctity of life" aspect that is a main tenant of this belief system

Why is that?

coylemj

There's enough FF and FG TDs in the Dail to block any new legislation that tries to sort out the mess that we're in because no matter how it's framed or presented, Youth Defence, Dana and the self-styled Pro-Life mob will be label it 'an act to permit abortion in Irish hospitals'. That's the main problem and that's why successive governments have ducked and dived every time someone said we should do something about the problem.

There appears to be conflicting evidence about the current case and whether the woman's life was actually in danger while she was pregnant but I agree the problem needs to be addressed by legislation because the courts have made it clear thta it's time for the folk in Leinster House to sort it out instead of them (the judges) being asked to litigate from the bench for every messy situation like the X case a few years back.

Procrastastudy

gozunda wrote: »

... the whole "sanctity of life" aspect that is a main tenant of [the RC] belief system

I'm a dirty protestant by birth and not remotely religious but I am anti-abortion why does being a Roman Catholic come into it.

gozunda

Procrastastudy wrote: »

I'm a dirty protestant by birth and not remotely religious but I am anti-abortion why does being a Roman Catholic come into it.

Hello - well I'll join you there

I dunno know - do you believe all life is sacred?

Procrastastudy

gozunda wrote: »

Hello - well I'll join you there

I dunno know - do you believe all life is sacred?

I just think the choice to have a child or not should be made before it's made not afterwards. That said I've no issue with abortions where a risk to the mothers health is a possibility. I would say it has to be more than remote however.

gozunda

Procrastastudy wrote: »

I just think the choice to have a child or not should be made before it's made not afterwards. That said I've no issue with abortions where a risk to the mothers health is a possibility. I would say it has to be more than remote however.

I agree with you on all the above points. I would favour a licensing system. Not sure what you mean about remote though?

Ashashi

MagicSean wrote: »

But they did not strike out the law and they cannot add or change it so technically an abortion is still illegal. The dpp might choose not to proceed and rely onthe supreme court decision but it is still against the law is it not. The Supreme court can interpret law and can stike it out as unconstitutional but they cant just say "pretend it isn't there"

The SC came to this conclusion by interpreting the Constitution. They did not strike out any law because the law was no unconstitutional, abortion is illegal, except in certain circumstances.

The problem is that legislation is not in place to affirm the SC decision and doctor's will not feel comfortable knowing that there is no legislation, all they have is a legal precedent set down by the courts, which can only be enforced in the courts.

The basis of the legislation is there, the government have just failed to enact it.

See it this way, if a person was charged with procuring an abortion tomorrow in the exact same situation as the X case, they would not be found guilty of procuring an abortion; it would be found to be necessary to protect the mother's life. Hence, not illegal.

MagicSean

Ashashi wrote: »

The SC came to this conclusion by interpreting the Constitution. They did not strike out any law because the law was no unconstitutional, abortion is illegal, except in certain circumstances.

The problem is that legislation is not in place to affirm the SC decision and doctor's will not feel comfortable knowing that there is no legislation, all they have is a legal precedent set down by the courts, which can only be enforced in the courts.

The basis of the legislation is there, the government have just failed to enact it.

See it this way, if a person was charged with procuring an abortion tomorrow in the exact same situation as the X case, they would not be found guilty of procuring an abortion; it would be found to be necessary to protect the mother's life. Hence, not illegal.

They would not be found guilty but they might still be charged.

Ashashi

MagicSean wrote: »

They would not be found guilty but they might still be charged.

Yes, they may charged. However, when the certain circumstances arise, it is not illegal.

MagicSean

Ashashi wrote: »

Yes, they may charged. However, when the certain circumstances arise, it is not illegal.

Maybe you are just underestimating the effect on a doctor of being charged with an offence like this and being investigated for medical malpractice.

Ashashi

MagicSean wrote: »

Maybe you are just underestimating the effect on a doctor of being charged with an offence like this and being investigated for medical malpractice.

You asked whether it was illegal or not. You never mentioned the effects on the person charged.

The effects of such an investigation would be damaging, not denying that.

ResearchWill

Ashashi wrote: »

Yes, they may charged. However, when the certain circumstances arise, it is not illegal.

This is a very complex area of law to the best of my knowledge section 58 & 59 of the Offences Against the Person Act 1861 are still the law in this country. While the x case gave an interpretation of the Constitution the politicians have not had the balls to bring in legislation to deal with the problem. The act can be found here http://www.legislation.gov.uk/ukpga/1861/100/pdfs/ukpga_18610100_en.pdf

MagicSean

Ashashi wrote: »

You asked whether it was illegal or not. You never mentioned the effects on the person charged.

The effects of such an investigation would be damaging, not denying that.

So what is illegal then. Is it acting contrary ot legislation? If so then abortion is illegal. Did the Supreme court make it legal or merely introduce a defence. Is there a difference?

Ashashi

MagicSean wrote: »

So what is illegal then. Is it acting contrary ot legislation? If so then abortion is illegal. Did the Supreme court make it legal or merely introduce a defence. Is there a difference?

The procuring of an abortion is illegal, unless in certain circumstances. Same way killing someone is illegal, except in certain circumstances.

The SC did not make abortion legal, however they established thatby interpreting the Constitution, that the life of the mother and unborn must be weighed. If there is a threat to the mother, then there is an inherent threat to the unborn child. However, if there is a threat to the unborn, there is not necessarily a threat to the mother.

Therefore the reasoning of the SC was that if there is a real and substantial risk to the mother's life because of the pregnancy, the pregnancy can be terminated. The SC have not provided a defence nor have the made it legal; they established that under certain circumstances, an abortion is necessary and legal.

There is also a big difference between establishing a defence for a crime and making the crime legal.

ReasearchWill is correct though as far as I am aware.

ResearchWill

MagicSean wrote: »

So what is illegal then. Is it acting contrary ot legislation? If so then abortion is illegal. Did the Supreme court make it legal or merely introduce a defence. Is there a difference?

They did neither, and can do neither. They only interpreted the Constitution in relation to the X case. Only the Dail can legislate.

28064212

Ashashi wrote: »

The SC did not make abortion legal, however they established thatby interpreting the Constitution, that the life of the mother and unborn must be weighed. If there is a threat to the mother, then there is an inherent threat to the unborn child. However, if there is a threat to the unborn, there is not necessarily a threat to the mother.

Therefore the reasoning of the SC was that if there is a real and substantial risk to the mother's life because of the pregnancy, the pregnancy can be terminated. The SC have not provided a defence nor have the made it legal; they established that under certain circumstances, an abortion is necessary and legal.

They established that, under the Constitution, there is a right to an abortion. However, they never struck down the 1861 law. If a Garda arrests a doctor under the 1861 law, and the DPP prosecutes under the 1861 law, and the criminal court judge finds the doctor guilty under the 1861 law, has anyone acted incorrectly? As far as I understand it, the doctor would have to appeal to the High Court, who have the power to strike down the 1861 law as unconstitutional

ResearchWill

28064212 wrote: »

They established that, under the Constitution, there is a right to an abortion. However, they never struck down the 1861 law. If a Garda arrests a doctor under the 1861 law, and the DPP prosecutes under the 1861 law, and the criminal court judge finds the doctor guilty under the 1861 law, has anyone acted incorrectly? As far as I understand it, the doctor would have to appeal to the High Court, who have the power to strike down the 1861 law as unconstitutional

Interesting but the 1861 Act may not be unconstitutional, in that it may be considered that there is open a defense I.e necessity. But this is way to complex an issue to deal with in a short post. But until legislation is brought in then doctors and other health staff would risk a possible prosecution and conviction and jail time.

gozunda

ResearchWill wrote: »

Interesting but the 1861 Act may not be unconstitutional, in that it may be considered that there is open a defense I.e necessity. But this is way to complex an issue to deal with in a short post. But until legislation is brought in then doctors and other health staff would risk a possible prosecution and conviction and jail time.

It is also possible then that a medical professional involved in such a scenario who withholds care especially where reasons other than medical are cited may be deemed to have been negligent and also risk prosecution etc.

ResearchWill

gozunda wrote: »

It is also possible then that a medical professional involved in such a scenario who withholds care especially where reasons other than medical are cited may be deemed to have been negligent and also risk prosecution etc.

I'm not aware that a negligent doctor faces a criminal prosecution, he or she may face a civil action which the insurance company or the state will pay.

A standard defense to such a civil case is that the action taken is the industry standard, I'm not sure that aborations are medically standard in such situations in Ireland.

gozunda

ResearchWill wrote: »

I'm not aware that a negligent doctor faces a criminal prosecution, he or she may face a civil action which the insurance company or the state will pay.

A standard defense to such a civil case is that the action taken is the industry standard, I'm not sure that aborations are medically standard in such situations in Ireland.

Are there not provisions for medical negligence?

ResearchWill

gozunda wrote: »

Is there any provision for criminal negligence?

I am not aware of one, there maybe but I have not come across it. If there is depending on how it is worded there would be constitutional issue as Mens Rea would be difficult and strict liability offences in ireland stand on very shaky constitutional grounds.

Obliq

Hi all - Very sorry to interrupt, but came to the legal section to see if I can find an answer to something that a friend on another forum asked me....seems pretty topical to this thread, so thought I'd ask

"I realised tonight I have no idea what provision was available for abortion access pre-Eighth Amendment. Obviously the Offences Against the Person Act was in place, but what was the situation with medically necessary abortions?"

Were there just none (joke), or did we call them something else then too? Are any of you here aware if the government HAD a position on medically necessary abortions? Pre 1983?

Rascasse

The Guardian and Examiner are quoting Dr Gerry Whyte, associate professor of law at TCD.

Dr Whyte claimed that the law as it stands provides for abortions, but only in cases where it is deemed necessary to save the life of a mother:

Dr Whyte said: "The legal principle is clear, in other words, if there was a real and substantial risk to the mother's life and where termination of the pregnancy was necessary to avoid that risk, then she would have been entitled to an abortion.

"Now clearly, the case raises issues that I couldn't comment on about medical judgements, about whether or not termination of the pregnancy would have saved her life or not.

"I am not in a position to comment on that but the legal principle is fairly clear."

http://www.guardian.co.uk/world/2012/nov/15/irish-abortion-law-blame-death

krd

Obliq wrote: »

"I realised tonight I have no idea what provision was available for abortion access pre-Eighth Amendment. Obviously the Offences Against the Person Act was in place, but what was the situation with medically necessary abortions?"

Were there just none (joke),

There were just none, and it was no joke.

or did we call them something else then too?

It was just something that was not done at all. And only a few years ago it emerged they were still sending women to England for evacuations. That's when the fetus is completely nonviable.

A relation of mine was pregnant in the 80s, with a fetus with very severe abnormalities. She went to full term. Without giving enough information for a google - her doctors were accused in certain parts of the media as committing an abortion (on top of other things). None of this was true - but I could see how easily doctors could be crucified, if they did induce a nonviable fetus. This is pretty much normal procedure everywhere else, bar Ireland.

Are any of you here aware if the government HAD a position on medically necessary abortions? Pre 1983?

In 1983 you couldn't even buy condoms in Ireland without a prescription - and to get the prescription you had to be a married man, and then you'd only get three. And they were to last you a month.

Anyone born in the late 80s has no concept of what Ireland was like. It was priest and nun ridden.

Obliq

krd wrote: »

There were just none, and it was no joke.



It was just something that was not done at all. And only a few years ago it emerged they were still sending women to England for evacuations. That's when the fetus is completely nonviable.

A relation of mine was pregnant in the 80s, with a fetus with very severe abnormalities. She went to full term. Without giving enough information for a google - her doctors were accused in certain parts of the media as committing an abortion (on top of other things). None of this was true - but I could see how easily doctors could be crucified, if they did induce a nonviable fetus. This is pretty much normal procedure everywhere else, bar Ireland.



In 1983 you couldn't even buy condoms in Ireland without a prescription - and to get the prescription you had to be a married man, and then you'd only get three. And they were to last you a month.

Anyone born in the late 80s has no concept of what Ireland was like. It was priest and nun ridden.

Thanks krd. Yes, I was born in the 70's so had no chance to vote in 1983, obviously. I've been marching for choice since I was a teenager. At 40 years of age, this is the first time I have been able to hold a conversation about abortion on the street and in the shops in rural Ireland.

As for your comment in bold - I'd say bedevilled. And Ireland is still bedevilled.
I imagined there was no legal position pre 1983 for situations where the life of the mother was in danger, seems I was right. I clearly remember my mother telling me that in the event of a problematic labour, I would have been saved and not her. Looks like that practice still stands in reality.

Carawaystick

Sections 58 & 59 of the Offences against the person act 1861 mention procuring a miscarriage.

I'm guessing that Miscarriage has been more tightly defined in litigation since then, but
in the published facts of the recent case seem to be that a miscarriage had occurred and so
the oapa wouldn't apply?

krd

Obliq wrote: »

I clearly remember my mother telling me that in the event of a problematic labour, I would have been saved and not her. Looks like that practice still stands in reality.

It's kind of tricky. Now you can have an open conversation about abortion (we'll see how long that lasts - once the crazy machine starts getting cranked up again*) The law aside, you could not trust medical staff. One common myth the "pro-life" crowd push, is that a woman's life is never in danger during pregnancy. There are lots of circumstances. And even if the doctors were in a position, that if they advised you that your health/life was in serious danger by continuing the pregnancy - they could be in very big trouble.

* The whole 1983 abortion referendum is something that came nearly completely out of the blue. The country was so "catholic" at the time, even Alan Shatter was an anti-abortion Catholic (Even though he is Jewish - and under Jewish law (Torah) the life of the woman is given primacy over the fetus and abortion is allowed - it's a sin not to allow it. ) The American anti-abortion campaigners may have been behind the whole thing.

Roe versus Wade, was the American Supreme Court decision that allowed abortion in the US. The anti-abortion campaigners couldn't over turn the Supreme court decision, but if they could get a constitutional amendment, they could have it ruled unconstitutional. And this is where Ireland comes in. If the US campaigners could get a precedent elsewhere it might help their case. So, as the conspiracy theory goes, they are the ones who sponsored the original Irish amendment.

The reality is, in the US they're never going to role back the law. Before the Roe Vs Wade in 73, as many women were having illegal abortions as ended up having legal ones. The only difference was before 1973, women would turn up at hospitals with mysterious *conditions*. And I'm sure it's happening here with women returning from England who've had complications. The Ms X case happened, because the director of public prosecutions, here wanted Ms X and her parents banged up in prison.