#Strike4Repeal: Strike Against the Citizens’ Assembly?

This International Women’s Day sees women worldwide engaged in strike action. Irish women strike for repeal of the 8th Amendment: the constitutional provision which prohibits abortion except where the pregnant woman’s life is at risk, and the only means of avoiding that risk is to terminate it. But more than that, the law pledges the state to protect the right to life of the ‘unborn’, from the moment of implantation, against the actions of the woman who carries it. In recent years, this law has been used  to delay medical treatment to a woman suffering an inevitable miscarriage at the cost of her life; to keep a woman’s body on life support after brain-death in an attempt to prolong her second trimester pregnancy to viability;  to  forced Caesarean section on a young suicidal rape victim; to deny countless women the right to refuse a wide range of interventions in pregnancy and birth.  

Fearful expulsion is the abortion law’s most ordinary side-effect. Women needing abortions – perhaps a dozen a day – travel abroad, while others perform early medical abortions at home. Irish women save to pay for their own abortions: for travel, accommodation and medical fees. In the time it takes to save, they find that they need more expensive abortions because their pregnancies are further along. The abortion regime also depends on women’s ability to access abortion out of sight; whether by travelling abroad or by procuring one in secret at home. Some solidarity is available for funding, but nobody can buy you time.  On and off the job, abortions mark working time. Women plan abortions for weekends, ‘sick days’, paid and unpaid ‘holidays’. By taking women’s bodies out of the workplace for a day, this strike underscores not only the importance of reproductive labour in general, but these specific relations between work and managing and undoing unwanted pregnancy.

The publicness of this strike is an important counterweight, not only to the secrecy of travel and of home abortion, but to the shaming and silencing on which effective regulation of women’s reproductive lives depends. It makes visible many of the networks of care and solidarity which allow women to survive that silencing and shame. And in a week which saw yet another official ‘rediscovery’ of the recent brutal history of incarceration of unmarried pregnant women in Ireland in institutions which set store by the the terms of women’s assembly in church, in religious parades and in the streets, the importance of this black-clad public assembly, this unexpected return, cannot be overstated.

But Strike for Repeal is also about law-making. The strike is framed as a response to the government’s failure to call a referendum by March 8th. There is clear and growing public demand for liberalisation of the law. Left-wing TDs have repeatedly asked for an immediate response to that demand: not only in the shape of a referendum, but of a softening in the worst effects of the abortion regime, by reducing criminal penalties, regulating exploitative bogus pregnancy counselling and providing some relief for women whose foetuses are diagnosed with fatal foetal anomalies. The government has repeatedly blocked these demands. It installed the Citizens’ Assembly as a precursor to any legislative deliberation on the prospect of constitutional change. The Assembly consists of a judge (an ‘appropriate woman‘) and  99 citizens chosen by a polling company; supposedly representative of the people in terms of gender, age and geography. It is an exercise in ‘deliberative democracy’ designed to produce ‘vital consensus on behalf of us all’. However,  the government has made no firm commitment to implement the Assembly’s recommendation. These  will likely be filtered through further committees. No timeline has been set for proposal of a final reform bill. A popular referendum is not expected until 2018 (coinciding, of course, with a Papal visit). The strike protests delay: the refusal to recognise the abortion issue as urgent. That denial of urgency must be understood in the context of a broader attitude to law-making. The government presents aching slowness and caution as essential to any legal change on abortion  because it is understood as an issue of unique moral weight. The judge-led Assembly embodies a desire to discipline processes of legal change, ensuring an incrementalist approach which is presumptively civilised and civilising, never destabilising, immune to popular politics.

What the government calls disciplined law-making has two characteristics: ‘neutrality’ and ‘balance’. A concern for neutrality ensured that no lawyers who had expressed an opinion on the Irish abortion debate were invited to present to the Assembly, or appointed to the panel of academics which advised the Assembly on the selection of expert speakers. When the Assembly received over 13,000 written submissions, neutrality apparently justified the decision to select 300 at random for the Assembly members to read, without regard for content or repetition. ‘Balance’ means something more than impartiality. Speakers, whether advocates or experts, generally appeared in pairs: pro-choice and pro-life. Balance, then, is always binary. Presentations of the law, interestingly, were not made in pairs. Perhaps, once experts in abortion law had been excluded from Assembly proceedings, no balance was required in this respect. The perceived need to ‘balance’ presentations allowed ample voice for pro-life and conservative religious organisations and speakers, well in excess of their support among the broader population. In the process, it obscured the pluralism of the pro-choice majority. The Assembly heard, not only from pro-life medical ethicists and religious leaders, and Irish conservative organisations, but from prominent American pro-life activists, chosen by Irish organisations to speak in their place. Meanwhile, several Irish pro-choice advocacy groups were excluded, including important representative organisations for women who have had abortions, such as the Abortion Rights Campaign, and Termination for Medical Reasons Ireland. No organisation representing women of colour was invited to speak. When the Assembly heard women’s scheduled direct accounts of abortion, it was not in person, but in the form of short, edited and anonymised audio recordings of interviews with women who had ended pregnancies in a narrow range of circumstances. For ‘balance’, some of these recordings were of women who had not ended their pregnancies.  By adopting ‘neutrality’ and ‘balance’ as lodestones of the process, the Assembly suggests that the statements and presentations made to Assembly members are all equally valid and valuable found objects, which speak for themselves, rather than contested and contestable political artefacts created for and by the Assembly. In particular, non-interventionist neutrality ensures that the Assembly operates without any ‘fact checking’ resources. So, by and large, the members are left to weigh presentations and submissions for themselves, or  rely on other speakers to devote some of their allocated time to correcting misrepresentations. Several members of the Assembly have asked penetrating, and at times critical questions, and recently indicated support or displeasure through spontaneous applause. Some women speaking before the Assembly have also been able to subvert the imposition of particular forms of civility.Watch, for example, the gesture of Sinead Redmond of Parents for Choice giving her testimony with her baby daughter; their own pairing gently provoking conservative conceptions of the incompatibility of motherhood and choice. However, these moments of substantive critical agency  are just that – performative moments – which occur in spite of, rather than because of the formal Assembly process.

It may be that the Citizens’ Assembly process is supposed to reassure women. It is supposed to remind us of the Constitutional Convention, which we are assumed to remember as the liberal pump-primer for Marriage Equality. Watching the Citizens’ Assembly meetings over the last 4 months, I have been reminded of other antecedent processes established to address historical gender-based violence against women – also judge-led; also scrupulously careful to restrict space for women’s direct testimony; also insufficiently critical of narratives that seek to justify and legitimate treatment which women call injury and harm; also designed to settle, neutralise and rebalance women’s claims to reparative and transformative reproductive justice. The Assembly, on this reading, reinforces an expectation that women are not entitled to appear before law on their own terms, even where law is to be applied to the most intimate dimensions of their lives.

Jon Berger wrote that mass demonstrations were not, as is often commonly thought, an attempt to convince the state to change a hated policy. Instead, they artificially created events, separated from everyday life, which ‘express political ambitions before the political means necessary to realise them have been created’. The state’s response to these ambitions does not matter very much. What matters is that those participating, and those sympathetically witnessing the demonstration become more aware of their shared purpose and fate; feel themselves standing together against the state’s projects. Berger argues that demonstrations are ‘rehearsals of revolutionary awareness‘; they may foreshadow revolution, or perhaps revolutionary return of something suppressed. Strike 4 Repeal is a complex movement. In its demand for an immediate referendum, it enacts a struggle for law: it is a necessary agonistic demonstration of appetite for law and law-making processes which are not contained by appeals to balance and neutrality. It is a warning of the impossibility of suppressing women’s diverse and complex demands for legal change and a rejection of past governmental tactics of repression and control. Women gather in black today at 12.30.The recent work of Jesse Jones on gender, reproduction and Irish law references an Italian feminist protest chant which captures the possibilities: “Tremble, tremble, the witches have returned!” 

#Strike4Repeal: Strike Against the Citizens’ Assembly?

Reflections on the Citizen’s Assembly (4): The Presentation of Dr. Dónal O’Mathúna

 

We are pleased to welcome this guest post from Donnchadh O’Conaill, of the Department of Philosophy, History, Culture and Art Studies at the University of Helsinki. This is the fourth of a series of posts Donnchadh is writing on presentations of ethicists to the Citizens Assembly.

In the context of debates about abortion, autonomy is often appealed to by those promoting greater legal access. Those who wish to restrict access to abortion must either argue that autonomy is not as ethically significant as is often assumed, or that in the specific case of abortion the autonomy of pregnant women should be limited. Dr. Dónal O’Mathúna explores each of these lines in his presentation to the Citizen’s Assembly.[1] Continue reading “Reflections on the Citizen’s Assembly (4): The Presentation of Dr. Dónal O’Mathúna”

Reflections on the Citizen’s Assembly (4): The Presentation of Dr. Dónal O’Mathúna

Hague Justice Journal: Call for Papers

The Hague Justice Journal First Edition in Association with the International Criminal Tribunal for the former Yugoslavia launches its call for submissions

The editorial board of The Hague Justice Journal (HJJ) is delighted to announce that it is soliciting submissions for its 2017 volume relating to the ICTY’s legacy in this its final year of operations. Such submissions will include selected papers from the ICTY Legacy Conference due to be held from 23-24 June 2017 in Sarajevo, Bosnia, and will be published in Autumn 2017. The HJJ undertakes this endeavor in formal cooperation with the ICTY, in line with a number of legacy-related activities being organized in 2017 by the ICTY and by the Peace, Justice and Security Foundation. Continue reading “Hague Justice Journal: Call for Papers”

Hague Justice Journal: Call for Papers

Reflections on the Citizen’s Assembly (3): The Presentation of Dr. Joan McCarthy

We are pleased to welcome this guest post from Donnchadh O’Conaill, of the Department of Philosophy, History, Culture and Art Studies at the University of Helsinki. This is the third of a series of posts Donnchadh is writing on presentations of ethicists to the Citizens Assembly; the first can be found here, and the second here

While debates over the status of the foetus are central to ethical and philosophical discussions of abortion, the freedom of women to choose to have abortions is crucial to political debates on this subject. Dr. Joan McCarthy presented a defence of this freedom, taking as her starting point “the body and the life of the woman or girl who is pregnant”, considered as a moral agent, i.e., as making ethical choices in concrete situations.[1] In assessing the choices such women face, McCarthy draws on two principles: autonomy and justice. Continue reading “Reflections on the Citizen’s Assembly (3): The Presentation of Dr. Joan McCarthy”

Reflections on the Citizen’s Assembly (3): The Presentation of Dr. Joan McCarthy

Reflections on the Citizens Assembly (2): The Presentation of Bobbie Farsides

We are pleased to welcome this guest post from Donnchadh O’Conaill, of the Department of Philosophy, History, Culture and Art Studies at the University of Helsinki. This is the second of a series of posts Donnchadh is writing on presentations of ethicists to the Citizens Assembly; the first can be found here.

Debates about abortion can often be traced back to disagreements about the status of the foetus, e.g., whether it is a being with any independent moral significance. All parties to this disagreement share two assumptions: that ethical debates over abortion are primarily a matter of the moral importance of the foetus, and that the nature of the foetus is what determines its moral status. Hence many opponents of abortion will appeal to the fact that the foetus is a human being, e.g. it has a soul or has the potential to become a rational being; many proponents of liberal abortion laws will counter that the foetus, at least early in its development, lacks certain capacities which are crucial to having moral status.[1] The arguments here are often complex and involve subtle points of metaphysics which are not easy to resolve. More generally, regardless of what one thinks about these issues, it might seem that such esoteric matters are not appropriate as a basis for legislation.

In her submission to the Citizen’s Assembly, Prof. Bobbie Farsides outlines an alternative approach: a way of justifying a pro-choice regime which seeks to avoid disputes about the nature or moral status of the foetus.[2] Continue reading “Reflections on the Citizens Assembly (2): The Presentation of Bobbie Farsides”

Reflections on the Citizens Assembly (2): The Presentation of Bobbie Farsides

Languishing in Direct Provision: Rights in ‘Reasonable’ and ‘Unreasonable’ Times

imagesThe length of time that asylum seekers reside within direct provision accommodation, continues to cause significant concern, as it has done so for almost seventeen years.  The practical impact of the implementation of the limited recommendations contained within the  McMahon Report still remains to be fully seen. The Minister for Justice and Equality has stated that 80% of all recommendations made by the McMahon Report are implemented or are being implemented. However, this claim has not to date been backed up with comprehensive assessment from the Department of Justice.  The commencement of the International Protection Act 2015 on 31 December 2016, will hopefully ensure that persons in the protection system receive a fair, procedurally proper and clear decisions on whether they qualify for protection in a timely manner. However, as noted by David Costello, Chief International Protection Officer at a seminar last week, there are 4,000 cases to hand in the International Protection Office (IPO) due to the commencement of the International Protection Act. [With thanks to Fiona Finn, CEO of NASC for making me aware of this]. Oldest cases will be decided first. Those already with a negative determination of refugee status by the now abolished Office of the Refugee Applications Commissioner under the old law, will return to the IPO for determination of their subsidiary protection claim. If subsidiary protection is rejected by the IPO decision maker, then both refugee and subsidiary protection appeals will be considered by the International Protection Appeals Tribunal. Whether this impacts slightly or majorly on timely and fair delivery of protection decisions remains to be seen. A case decided last week may have significant impacts on the right to a timely decision on a protection claim. Continue reading “Languishing in Direct Provision: Rights in ‘Reasonable’ and ‘Unreasonable’ Times”

Languishing in Direct Provision: Rights in ‘Reasonable’ and ‘Unreasonable’ Times

The Story of King Tex: A Modern Allegory

We are pleased to welcome this guest post from Dr Dug Cubie, UCC. In it, he reworks Fuller’s Story of King Rex for contemporary times.

In Lon Fuller’s 1969 book The Morality of Law, Fuller set out the story of King Rex as a cautionary tale of the need for clarity, consistency and predictability within legal systems. Profoundly influenced by the horrors of the 20th Century, in particular the Nazi regime in Germany and the Stalinist regime in the USSR, Fuller desired to establish certain benchmarks for legal systems based on his view of the “inner morality of the law.” Fuller argued that the inner morality of a legal system was based first on the morality of duty (the duty to provide basic rules for the ordering of society) and then the morality of aspiration (the aspiration of excellence within a legal system). Surprisingly little of Lon Fuller’s account of King Rex needs to be changed to fairly accurately reflect the start of President Trump’s administration…

So, as Fuller might have written: This story concerns the unhappy reign of a monarch who bore the convenient, but not very imaginative and not even very regal sounding name of Tex. Continue reading “The Story of King Tex: A Modern Allegory”

The Story of King Tex: A Modern Allegory

A boon for parliament? An initial response to the decision in Kerins v McGuinness

We are pleased to welcome this post by Dr. Tom Hickey, School of Law and Government, Dublin City University.

Sometimes constitutional law has an ironic effect and one that perhaps goes against the intuitions of lawyers, and of people generally. It prevents one arm of government from doing justice in order to allow another arm of government to do its job well. In today’s High Court judgment in Kerins v McGuinness, we see something like that at play, although it is probably better to say that in this instance constitutional law prevented one institution (the courts) from considering whether to offer a remedy for alleged injustices done unto Angela Kerins in order to allow another institution (parliament) to freely carry out its functions.

Continue reading “A boon for parliament? An initial response to the decision in Kerins v McGuinness”

A boon for parliament? An initial response to the decision in Kerins v McGuinness

Reflections on the Citizens Assembly (1): The presentation of Dr Helen Watt

We are pleased to welcome this guest post from Donnchadh O’Conaill, of the Department of Philosophy, History, Culture and Art Studies at the University of Helsinki. This is the first of a series of posts Donnchadh is writing on presentations of ethicists to the Citizens Assembly.

Regardless of what one thinks about the need for a Citizen’s Assembly, its deliberations have already thrown up a number of interesting approaches to thinking about ethical issues, particularly concerning abortion. What follows is a series of articles on the presentations by ethicists to the assembly, examining the arguments that they offer and their potential implications for a possible referendum to repeal the 8th Amendment.

Dr. Helen Watt presented an argument against abortion which was of interest, particularly in the context of Irish debates about abortion, in not relying (at least not explicitly) on religious doctrine. Indeed, Watt’s arguments rest on certain assumptions which are difficult or impossible to reconcile with the beliefs of many religions, for instance the belief in an immortal soul. But as with more familiar religiously-motivated discussions, Watt’s argument appeals to the nature of the foetus to justify its having a certain moral status. By the ‘nature’ of the foetus I mean not just its physical or biological features but those features which might be thought to give it moral significance in and of itself, regardless of what anyone thinks about it. This kind of moral significance is what is usually meant when ethicists speak of the ‘moral status’ of the foetus. Continue reading “Reflections on the Citizens Assembly (1): The presentation of Dr Helen Watt”

Reflections on the Citizens Assembly (1): The presentation of Dr Helen Watt

The Final Countdown: Ireland’s Ratification of the UN Convention on the Rights of Persons with Disabilities

Over the next two days, two pieces of legislation which the government has deemed necessary for Ireland’s ratification of the UN Convention on the Rights of Persons with Disabilities will be debated in the Dail. While several calls have been made by the disability community to ensure that Ireland ratifies the Convention without delay, there are ongoing human rights concerns with the legislation being proposed which will have a significant impact on the day to day lives of people with disabilities in Ireland.

The Criminal Law (Sexual Offences) Bill is going through its Report and Final stages in the Dail tonight. This Bill includes an amendment by Minister Fitzgerald to define sexual consent, which is vitally important and widely supported by civil society. The wording of the Minister’s amendment in respect of persons with disabilities could however be improved. For example, the amendment states that a person does not consent to a sexual act if “he or she is suffering from a physical disability which prevents him or her from communicating whether he or she agrees to the act.” The term ‘physical disability’ seems unnecessarily limiting here, as there are many different physical and psychological reasons that might prevent the person from communicating consent or refusal. Instead, it would be preferable if the amendment provided that a person does not consent if “he or she is experiencing an impairment which prevents him or her from communicating whether he or she agrees to the act.” Continue reading “The Final Countdown: Ireland’s Ratification of the UN Convention on the Rights of Persons with Disabilities”

The Final Countdown: Ireland’s Ratification of the UN Convention on the Rights of Persons with Disabilities