The American Experience with Mental Health Exceptions Paul Benjamin Linton, Esq.

Member of the Illinois and United States Supreme Court Bars Special Counsel, Thomas More Society (Chicago, Illinois) I appreciate the opportunity to present this written submission to the Joint Committee on Health and Children to discuss the American experience with mental health exceptions in abortion laws. The question that I will attempt to answer is whether a mental health exception in an abortion law can be limited to genuine mental health reasons. The answer to that question is germane to Head 4 in the proposed Bill, which would allow a pregnant woman to obtain an abortion when there is a risk of loss of life from self-destruction if she is denied an abortion. Head 4. In 1967 the California Legislature enacted the Therapeutic Abortion Act. Under the Act, an abortion could be performed to prevent grave impairment to the pregnant womans physical or mental health and to end pregnancies resulting from rape or incest. Under the Act, an abortion for reasons permitted by the Act had to be approved by a hospital committee consisting of at least two physicians (or three, if the abortion was to be performed after the thirteenth week of pregnancy) and their approval had to be unanimous (if the committee consisted of no more than three physicians). An abortion could not be performed for mental health reasons unless it appeared that the pregnant woman suffered from a mental

illness to the extent that [she] is dangerous to herself or to the person or property of others or is need in supervision or restraint. Cal. Health & Safety Code 25954. This definition, the only attempt to define narrowly the scope of a mental health exception in an abortion law in the United States prior to the Supreme Courts decision in Roe v. Wade (1973), was essentially the same standard that is used to determine whether a person may be involuntarily committed because he is a danger to himself or to others, a very strict standard that, one would think, could not be easily met. In 1972, a four-to-three majority of the California Supreme Court declared major provisions of the Therapeutic Abortion Act unconstitutional because, in the view of the majority of the court, several of its key provisions were too vague to understand. People v. Barksdale, 503 P.2d 257 (Cal. 1972). What is of particular interest in Barksdale is the courts discussion of the numbers and reasons for abortions performed in California in 1970. In that year, more than 65,000 (sixtyfive thousand) abortions were approved by hospital committees and almost 63,000 (sixty-three thousand) abortions were performed. More than 98% of the approvals (63,872) and more than 98% of the abortions performed (61,572) were for reasons of mental health. Id. at 265. These astonishing figures perplexed the California Supreme Court. This is what the court said:

Serious doubt must exist that such a considerable number of pregnant women could have been committed to a mental institution. Either pregnancy carries risks to mental health beyond those ever imagined, or legal writers and members of therapeutic abortion committees, two groups we must assume to be of at least common intelligence, have been forced to guess at the meaning of this provision and have reached radically different interpretations. Id. at 265. I would respectfully suggest a third explanation -- that the physicians serving on the hospital committees routinely approved abortions for reasons of mental health because they were determined to approve the abortions, knew that their approvals were not subject to review by any court or agency and understood that no other reason could plausibly be invoked to justify the abortion. The California Supreme Courts conclusion that the standard for approving an abortion for mental health reasons was impermissibly vague cannot be squared with the fact that that very same standard --- essentially the standard for civil commitment -- is one that has been used throughout the United States, including California, for many, many decades, all without any suggestion or indication that the standard is incomprehensible. The experience with the California Therapeutic Abortion Act of 1967 demonstrates that a mental health exception, even a narrowly drafted one that employs a well-established standard (the standard for civil commitment) cannot be

contained or limited to genuine mental health reasons. Inevitably, it will become an open door through which abortion on demand enters society. Now, I understand that the question in Ireland is not whether a mental health exception, as such, should be enacted, but whether, following the Irish Supreme Courts decision in Attorney General v. X, an exception for suicidal ideation (what Head 4 refers to as Risk of loss of life from self-destruction) should be embodied into Irish statutory law. I would submit that if a mental health exception, even one employing the narrow standard for civil commitment, cannot be drafted to prevent abortion on demand, the same applies to an exception purportedly limited to suicidal ideation. Nothing in the reasoning of the X case indicates otherwise. Indeed, Chief Justice Finlay stressed that, unlike the onset of most physical diseases or conditions that might warrant medical intervention in a pregnancy, suicidal ideation associated with pregnancy may occur suddenly, without warning, and require an immediate abortion. Here is what he said, contrasting the onset of physical threats to the pregnant womans life to mental (or psychological) threats (at p. 55): If a physical condition emanating from a pregnancy occurs in a mother, it may be that a decision to terminate the pregnancy in order to save her life can be postponed for a significant period of time in order to monitor the progress of the physical condition, and that there are diagnostic warning signs which can readily be relied upon during such postponement.

In my view, it is common sense that a threat of self-destruction such as is outlined in the evidence in this case, which the psychologist clearly believes to be a very real threat, cannot be monitored in that sense and that it is almost impossible to prevent self-destruction in a young girl in the situation in which this defendant is if she were to decide to carry out her threat of suicide. Under the proposed Bill (Head 4), an abortion may be performed upon a pregnant woman whenever three physicians one obstetrician/gynecologist and two psychiatrists jointly certify in good faith that there is a real and substantial risk of loss of the pregnant womans life by way of self-destruction, and that in their reasonable opinion this risk can be averted only by that medical procedure, i.e., abortion. As a practical matter, whenever a pregnant woman threatens to commit suicide if she is not allowed to have an abortion, and can find one obstetrician/gynecologist and two psychiatrists to believe her, she may obtain an immediate abortion, no matter how difficult it might be to predict what she might do if she were denied the abortion, no matter how questionable the evidence might be that she would, in fact, kill herself and no matter how speculative the opinion of the physicians that she would kill herself Indeed, the Explanatory Notes accompanying the Bill recognize the clinical challenges in accurately assessing suicidal intent, and the absence of objective clinical markers. The joint certification of three physicians required by Head 4 in cases of suicidal ideation would not prevent that exception from becoming an open door to

abortion in Ireland, any more than the requirement in the California Therapeutic Abortion Act that two (or in some cases, three) physicians agree that an abortion was necessary to preserve the pregnant womans mental health prevented that exception from becoming an open door to abortion in California. Like the California Therapeutic Abortion Act, the proposed Protection of Life during Pregnancy Bill 2013 does not provide any mechanism by which the approval of an abortion may be reviewed by any court, agency or ministry. It is only if an abortion is denied that review may be obtained under the Bill. See Heads 6, 7, 8. Nor does the Bill itself provide any professional oversight of physicians (including psychiatrists) who certify that an abortion is necessary to prevent a pregnant woman from committing suicide.1 I would respectfully suggest that if the proposed Protection of Life during Pregnancy Bill 2013 is enacted, it would not take long for everyone in Ireland to discover that the mere threat of committing suicide, supported by the professional opinion of one obstetrician/gynecologist and two psychiatrists, all of whom may be sympathetic to and support a policy of legalizing abortion, would suffice to obtain an abortion. Over time, you would likely experience , on a scale proportionate to its population, what California experienced in only three years with the mental health exception to its Therapeutic Abortion Act, thousands of abortions being performed without any justification in law or medicine. That may

not have been the intent of the justices in the majority in the X case, at least judged by their disavowals of abortion on demand, but to suggest that a suicide exception could be narrowly contained is naive. The law does not allow someone to commit an otherwise illegal act, especially one entailing the death of an innocent person, merely because he threatens to commit suicide if he is not allowed to do so. If a pregnant womans threat of self-destruction is genuine, she should be given the therapeutic assistance necessary to address the reasons for her suicidal ideation, as Justice Hederman said in his dissent in the X case,2 but that assistance does not include an abortion. There is no psychiatric or medical evidence that abortion is ever an appropriate treatment for suicidal ideation. Indeed, the evidence is to the contrary, i.e., that abortion is associated with elevated levels of not just suicidal ideation, but suicide itself. Hard cases that naturally elicit societys sympathy should not be the basis for carving out exceptions to the scope of the law, most especially the fundamental constitutional right to life. On any fair and objective reading, the language of Amendment 8 was never intended to allow abortion because of a threat on the part of the pregnant woman to kill herself.3 But even if the Dail believes that it is necessary to codify in statutory law the holding in the X case, the proposed Protection of Life during Pregnancy Bill 2013 does so in a way that does not

adequately safeguard the right to life of the unborn child guaranteed by the Eighth Amendment to the Irish Constitution. And that is because the standards, procedures and mechanisms established in the proposed Bill for evaluating requests for abortion in cases of suicidal ideation would inevitably and unavoidably result in abortions being allowed whenever there is a claim that the pregnant woman would kill herself if she were denied an abortion.