The description of Assisted Suicide as “killing” by a Senior Lecturer in Public Law was criticised by Socialist TD Gino Kenny at a hearing of an Oireachtas Committee on the issue yesterday – but Kenny was criticised in turn by campaigners for using “dishonest” language.
Dr Conor Casey, a Senior Lecturer in the University of Surrey School of Law and Fellow of the Trinity Centre for Constitutional Law & Governance addressed the Committee in relation to “the constitutional context in Ireland for assisted dying”.
He said that the Oireachtas does not have the power to legislate for Assisted Suicide under the Constitution, indicating that a referendum is needed.
He argued that Article 40.3.1 and 40.3.2 of the Constitution places “an express and solemn duty on the State and its organs – legislative, executive, judicial – to protect the sanctity of all human life.”
While acknowledging that the Constitution permitted competent adults to refuse medical treatment, he said that this was legally distinct from taking “active steps” to “end the life of another”.
Dr Casey said that the Supreme Court in the Fleming case found that there is no constitutional right to assisted suicide or to voluntary euthanasia.
He added that that the Fleming ruling should not be interpreted as giving the Oireachtas’ constitutional competence, “even in principle, to introduce a statutory regime that would permit intentional killing.”
He also argued that: “the firm textual commitments in Article 40.3 seem to me to conflict very sharply with the proposition the Oireachtas could legislate to permit third parties to engage or assist in the intentional destruction of human life in any circumstance.”
“It is difficult if not impossible to frame legislation that provides a statutory right to intentional killing as a reasonable attempt by the Oireachtas to either respect, defend, protect, or vindicate by its laws the right to life of every citizen as far as practicable,” he said.
“As noted in Fleming, the intentional destruction of human life is deeply at odds with the social order envisaged by the Constitution, and its understanding of what human dignity and respect for the sanctity of life require,” he said.
“As Denham CJ put it, the “social order contemplated by the Constitution, and the values reflected in it that would be the antithesis” of any legal entitlement to intentional killing,” Dr Casey said in his opening statement.
He said that a “litany of very serious concerns” had been raised by the High Court in the Fleming case about the possible impact and operation of prospective laws that could be devised by the Oireachtas to permit any form of intentional killing.”
Marie Fleming, who was in the final stages of multiple sclerosis, brought a challenge to the law criminalising assisted suicide in 2012 to the High Court, and been unsuccessful both in that case and on appeal to the Supreme Court in 2013.
Dr Casey said that the Court’s concerns, and “the Court’s evident scepticism that abuses could ever be curbed entirely, are very relevant to assessing whether such potential legislative reforms can ever be consistent with the State’s solemn duty to protect life under Article 40.3,” he said.
Socialist TD Gino Kenny was sharply critical of Dr Casey, saying that he used the word killing eight times, and that he should “refrain from using that kind of terminology”.
In response, Dr Casey said that he was trying to use the most anodyne language possible – and that the Supreme Court had used words such as ‘terminated’ which he had sought to avoid.
Commenting on Mr Kenny’s remarks, the Life Institute said that his criticism of Dr Casey’s statement was a “deliberate attempt to shut down a realistic and honest debate, and a drift towards using dishonest language in order to conceal the real purpose of Assisted Suicide – to intentionally kill another human being.”
Megan Ní Scealláin of Life Institute said that it was dishonest to use euphemisms to paint Assisted Suicide as something else entirely – and that “it should be a matter of concern that a TD sought to attack a legal expert for using clear and unambiguous language to describe a procedure that the same TD is seeking to make legal.”
At the Joint Oireachtas Committee hearing, other legal experts argued that a referendum was not necessary to legalise assisted suicide.
Dr Tom Hickey of Dublin City University said: “The constitution is not a bar or a block on the legislature from legislating as it sees fit in the public matter on this issue.
“If you, as a body of legislators, form the view that it is in the public interest to retain the blanket ban on assisted suicide, that is absolutely something you are constitutionally entitled to do,” he argued.
“Equally, and for the same constitutional reasons, if you as a body of legislators form the view that it is in the public interest to loosen the ban, to allow for assisted suicide under limited circumstances, that is something you are perfectly entitled to do.”
Dr Andrea Mulligan of Trinity College said that the Oireachtas “absolutely” had the right to legislate.