Michael McDowell, a former Irish Attorney-General and Minister for Justice, applies some actual legal expertise (sorry, Brendan) to the question of risk to the mother’s life and Irish abortion law.
The phrase “established as a matter of probability that there was a real and substantial risk to the life of the mother” is not without difficulty, as the evidence at the Galway inquest is demonstrating.
In my view, the phrase “real and substantial risk” does not mean that the mother is more likely than not to die.
It’s pretty staggering that lots of people in Ireland apparently think it does mean that and that that’s the standard and that if the risk is 50% then it’s just tough shit for the woman.
If, as may be unlikely, it could be established that a pregnant mother found herself in a condition that, say, three women out of 10 women in the same condition lost their lives, no one could doubt but that there was a real and substantial risk to her life, even if the statistical odds favoured her survival.
In my view, the requirement that the “real and substantial risk” must be established as a matter of probability simply means that there is no legal requirement to establish “beyond reasonable doubt” that the risk exists – not that the risk itself is quantified at more than 50 per cent.
In other words, in my view, what is legally required is that the doctors making a lawful decision to terminate a pregnancy in a manner that will end the life of the unborn must establish two things:
(a) as a matter of probability there is a risk to the life of the mother if the pregnancy is not terminated; and
(b) that the identified risk is a real and substantial risk, as distinct from a very small risk, that the mother will die.
Note that even on that interpretation the Irish Supreme Court ruled that women should be forced to take that very small risk.