Legislating for X: Medical Science and the Separation of Powers

No Supreme Court ever wants to be in the position of prescribing a treatment plan for a person suffering from a life-threatening medical condition.

In the X case, in 1992, however, this is exactly the situation the Supreme Court found itself in. The case dealt with the most distressing of factual circumstances and the Court, by a majority of four of five judges, ruled that Article 40.3.3 of the Constitution permitted abortion in the case of a “real and substantial risk to the life of the mother by self-destruction”.

That decision was made in the absence of any medical or psychiatric evidence but it was very clearly premised both on the assumption that abortion was an effective treatment for such a risk of self-destruction and on the assumption that there was no other way of avoiding that risk. Indeed, since the majority judges did not – even in passing – suggest that the woman in question be given any other form of psychiatric assistance, it appears that they believed that abortion would be a complete treatment for her condition.

In January, the Joint Oireachtas Committee on Health and Children did hear medical and psychiatric evidence from leading experts. Their testimony demonstrated conclusively that the assumption that abortion is a treatment for suicidal ideation is simply mistaken; that the best way to treat women with serious mental illness is in fact to treat the mental illness. In answer to a direct question asking whether perinatal psychiatrists had ever come across a case where termination of pregnancy was a treatment for suicidality, Dr John Sheehan spoke for all three of our perinatal psychiatrists when he said “we have not seen one clinical situation in which this is the case”.

On 5th April, the Irish Medical Organisation voted to reject the Supreme Court’s treatment plan for suicidal ideation when it voted to reject “regulation in relation to the provision of abortion services where there is a ‘real and substantial risk’ to the life of the mother” including a risk created by mental illness.

In reality, nobody can be all that surprised that judges should err in devising a treatment plan for a patient with mental illness in the absence of expert testimony. Judges are highly trained and have years of professional experience, but their expertise does not include perinatal psychiatric specialism.

The question now is whether to recognise that their treatment plan – while devised with the best of intentions – was based on inadequate medical knowledge and a departure from best medical practice or to legislate for the mistaken treatment plan in spite of best medical practice.

Our Constitution gives specific powers to three branches of government. Each – the legislature, the executive, and the judiciary – has its own particular role to play. None should encroach on the function of another, and each should operate as a ‘check’ on the power of the others. This simple architecture of checks and balances operates to preserve democracy by preventing any one power from becoming so powerful that it becomes tyrannical. Moreover, but no less importantly, it is also a corrective mechanism.

The Constitution recognises that mistakes can be made, even when all those who hold power wield that power with the best of intentions. When the mistakes of one branch can be exposed and corrected by another branch of government this is a sign that the system is working; that tyranny is being avoided.

When the legislature or executive makes a mistake interpreting the Constitution, there are procedures by which the judges can correct those mistakes with relative ease and efficiency. They do not entail a presumption that the Oireachtas or the Government acted in bad faith; to the contrary, the courts traditionally assume that the Oireachtas and the Government has acted with the best of intentions, even when they find error.

When judges make mistakes, however, they are the most difficult mistakes to correct because the interpretation of law given by the judges is authoritative, even when mistaken, unless and until the judges overturn their own decision.

Yet, in an extraordinary example of participative democracy, the legislative branch, by means of the January Oireachtas Hearings, has managed to identify the mistake in the treatment plan proposed by the Supreme Court in 1992.

The Oireachtas now has in its own hands compelling testimony that the Supreme Court did not have which effectively exposes the judgment in the X case as one where a mistaken assumption of fact was improperly used as a reason to deny to one guaranteed a right to life under the Constitution the vindication of that right.

To the extent that that mistake has been brought to light, the system has worked.

Does the Government have a mandate to ignore this contribution of the Oireachtas to the functioning of our democracy? Does the Government have a mandate to continue to consider that abortion is a treatment for mental illness even though that is a defiance of science?

Do TDs and Senators have a mandate to vote in favour of legislation on the grounds of the X case when they hold the knowledge that such legislation would be in contradiction of the truth that their own hearings uncovered, as well as contrary to best medical practice?

If the Oireachtas produced legislation that was consistent with best medical practice omitting suicide as grounds for abortion wouldn’t the current Supreme Court find it difficult not to defer to that decision on the grounds that the Oireachtas is in possession of expert knowledge that the Supreme Court in 1992 was denied access to?

The Constitution sets up a system of checks and balances, but it is not an automated system. It relies on individuals who have positions of great privilege and responsibility to honestly seek the solution that promotes the common good of all persons.


Dr. Maria Cahill is a Lecturer in Constitutional Law in University College Cork


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