The National Maternity Hospital and Article 44 of the Constitution

In a democratic republic, the State should own and directly run the national maternity hospital. It should not cede control over this essential public service to any private institution, such as Saint Vincent’s Holdings.

Our Constitution was heavily influenced by Catholic Church teaching. There are Articles in our Constitution that protect the interests of charitable institutions with a religious purpose. Article 44.2.5 states that:

Every religious denomination shall have the right to manage its own affairs, own, acquire and administer property, movable and immovable, and maintain institutions for religious or charitable purposes.

But what is a ‘religious denomination’ in this context, and how can it ‘manage its own affairs’? The Supreme Court examined this question in 1997, when it was testing the constitutionality of Section 37 of the Employment Equality Act. In that case the Supreme Court found that:

The term ‘religious denomination’, was therefore intended to be a generic term wide enough to cover the various churches, religious societies or religious congregations under whatever name they wished to describe themselves.

These various religious denominations may control religious, educational or medical institutions, whether directly or through a board of guardians or trustees and it appears to the Court that these are the religious educational and medical institutions referred to in s. 37. sub-s. 1 of the Bill and that they are also governed by the phrase ‘institutions for religious or charitable purposes’ referred to in Article 44, s. 2 sub-s. 5 of the Constitution.

The proposed structure for owning and running the planned new maternity hospital is complicated. The Religious Sisters of Charity currently own the land as Catholic Church property, and the Vatican has to authorise any change in its use.

If the deal goes through, there would be a series of companies, with a new St. Vincent’s Holdings becoming shareholders of St. Vincent’s Healthcare Group, which would include the new National Maternity Hospital and three other existing hospitals.

The main registered charitable object of St. Vincents Holdings is:

to advance healthcare in Ireland… by promoting medical education, medical research and patient care… through the St. Vincent’s Healthcare Group and to reflect compliance with national and international best practice guidelines on medical ethics and the laws of Ireland through the provision of support to companies which are registered as charities… and which are the Company’s subsidiaries.

The registered charitable objects of St. Vincent’s Healthcare Group include:

1 To provide Inpatient and outpatient healthcare services on the campus of SVHG Ltd i.e. St. Vincent’s University Hospital, St. Michael’s Hospital, Dun Laoghaire and St. Vincent’s Private Hospital. 2 To conduct and maintain the Facilities in accordance with the Health Care Philosophy and Ethical Code of the Religious Sisters of Charity.

The Health Care Philosophy and Ethical Code of the Religious Sisters of Charity is not available on line. St. Vincent’s University Hospital have this document but have refused to release it under the Freedom of Information Act.

One of the reasons for refusal was they said that the record in question is a document which was developed by and relates to the Religious Sisters of Charity and the Sisters don’t come under the FOI Act. They also said that this record has been superseded by a new ethical code. This issue is now with the Information Commissioner.

Private religious institutions such as the Sisters of Charity do not come under the FOI Act. The response to the FOI request from St. Vincent’s raises further questions because St. Vincent’s Holdings still promote patient care through St. Vincent’s Healthcare Group, which has its own ethical code, notwithstanding that it may have been updated.

The Department of Health response to the FOI request for the Document said that they did not have the Document despite the fact that it was part of the negotiations and the fact that St. Vincent’s Holdings promote patient care through St. Vincent’s Healthcare Group.

St. Vincent’s Holdings state that their ‘charitable Ojects’ reflect compliance with national and international best practice guidelines on medical ethics and the laws of Ireland. Section 37 of the Employment Equality Act is part of the laws of Ireland. The question is whether or not St. Vincent’s is defined as a medical institution subject to Section 37, and consequently governed by Article 44.2.5 of the Constitution.

According to the Supreme Court a medical institution does not need to be directly controlled by a religious congregation to be subject to Section 37 of the Employment Equality Act, and consequently governed by Article 44.2.5. Section 37 of the Employment Equality Act also refers to institutions under the ‘direction’ of bodies established for religious purposes.

The charitable object of St. Vincent’s Holdings is to ‘promote… patient care… through the St. Vincent’s Healthcare Group’ and the charitable objects of St. Vincent’s Healthcare Group includes to ‘conduct and maintain the Facilities in accordance with the Health Care Philosophy and Ethical Code of the Religious Sisters of Charity’.

So how would Article 44.2.5 of the Constitution (under which every religious denomination shall have the right to manage its own affairs) as interpreted by the Supreme Court (under which they may control medical institutions either directly or through a board of guardians or trustees), influence the new publicly funded Maternity Hospital with its proposed structure?

If a Catholic religious institution runs a medical institution that carries out terminations then how can it still be defined as a Catholic religious institution? If St. Vincent’s is governed by Article 44.2.5, then could St. Vincent’s healthcare Group or Holdings argue that the State is undermining freedom of religion (Article 44.2.1), disrespecting religion (Article 44.1) and undermining its right to manage its own affairs under Article 44.2.5?

Article 44.2.5 would have no meaning if a Catholic religious institution could not manage its own affairs by forbidding terminations under any circumstances.

At the Supreme Court in the matter of Section 37 Counsel for the state had admitted that a tension existed between the right to equality guaranteed by Article 40, s. 1, the right to free profession and practice of religion guaranteed by Article 44, s. 2 and the right to earn a livelihood guaranteed by Article 40, s. 3 of the Constitution, but they submitted that the sections under discussion represent a balanced attempt by the Oireachtas to resolve these tensions. The Supreme Court accepted that Section 37 was a balance that was acceptable because:

“This Court has also had to accept that occasions may arise when it is necessary to make distinctions in order to give life and reality to the constitutional guarantee of the free profession and practice of religion. This problem first arose in Quinn’s Supermarket v. Attorney General [1972] I.R. 1 where the Court had to accept that certain distinctions should be made in favour of the Jewish congregations arising from the fact that the Jewish Sabbath fell on a Saturday and not on a Sunday.”

Catholic hospitals do not provide terminations. How could they be governed by Article 44.2.5 if they were legally obliged to carry out terminations when those very terminations were against their mission and purpose and when the Supreme Court has said that occasions may arise when it is necessary to make distinctions in order to give life and reality to the constitutional guarantee of the free profession and practice of religion? How can a balance be achieved in this instance because if a Catholic hospital carries out terminations then how can it be called a Catholic hospital governed by Article 44.2.5.?

Article 44.1 of the Constitution obliges the state to respect and honour religion. How could the State respect and honour religion while obliging a religious institution governed by Article 44.2.5 to carry out terminations when those terminations are contrary to its mission and purpose and when it undermines the constitutional guarantee of the free profession and practice of religion (Article 44.2.1)?

One of the main questions seems to be whether or not St. Vincent’s Holdings is a religious institution governed by Article 44.2.5 of the Constitution and whether Section 37 of the Employment Equality Act applies?

These legitimate questions cannot be ignored. So far the Minister for Health, Stephen Donnelly has failed to give an explanation that can get to the heart of how St. Vincent’s can provide terminations, as it would be the only Catholic Hospital in the world to do so.