The Supreme Court did not resolve whether the Oireachtas could legislate for assisted suicide, according to Dr Conor Casey, a senior lecturer in public Law at the University of Surrey [1]. He cited the Constitutional provision that pledges the State to protect the right to life.
He was one of three constitutional experts who spoke to the Special Committee on ‘Assisted Dying’ yesterday.
Dr Tom Hickey, an Assistant Professor of Constitutional law at Dublin City University, told the committee that the Constitution is “not a bar or a block” on the Oireachtas from legislating in the public interest.
Dr Andrea Mulligan, assistant professor of law at Trinity College Dublin, agreed, citing a landmark Supreme Court ruling from 2013 brought by Marie Fleming.
“The case of Fleming and Ireland is crystal clear on the issue on whether or not the Oireachtas has this power [to legislate for assisted suicide],” Mulligan said.
Dr Casey, however, disagreed and suggested that the court did not provide “explicit judicial endorsement of the proposition the Oireachtas has competence to legislate in this area of social policy”.
However, asked to clarify his position later by Fine Gael TD Emer Higgins, Casey said it was simply his belief that the Supreme Court did not decide either way – rather than saying the Oireachtas could not legislate for assisted dying laws.
“If the Oireachtas were to legislate, I would emphatically agree with my colleagues [Hickey and Mulligan] that the presumption of constitutionality would attach,” he said.
And not only that, in Fleming the court reminds us that in constitutional challenges, the burden of displacing the presumption of constitutionality is on the challenger.