Repeal, Abortion and the Common Good: Beyond Foetal Rights?

The Mams are making the people for the country. We need to keep them well and mind them.

Clare Cullen-Delsol, Testimony to Joint Oireachtas Committee on the 8th Amendment

In its recent judgment in M v. Minister for Justice, Equality and Law Reform the Supreme Court confirmed that the only constitutional right the foetus currently has under Irish law is the right to life, as conferred in 1983 by the 8th Amendment. All of its other rights are contingent upon birth. Now, advocates for a ‘No’ vote in the referendum tell us that, if we remove the 8th Amendment from the Constitution, prenatal life will be stripped of all legal protection. This assertion directly contradicts the judgment in M. There the Court clearly said:

‘[This] does not mean that, as counsel for [M] sought to suggest, the unborn child is either constitutionally or legally “invisible”.’

Even without the 8th Amendment, in accordance with the judgment in M,  prenatal life will be protected in three ways after repeal:

  1. There will be circumstances in which the state must take account of the rights that a foetus will acquire on birth, when it takes up the status of a ‘child’ under Irish law,
  2. The foetus will still enjoy certain protections at common law and under statute and
  3. ‘[T]he State is entitled to take account of the respect which is due to human life as a factor which may be taken into account as an aspect of the common good in legislating’

In this piece I want to focus on the third idea mentioned here – that of the ‘common good’. M v. Minister for Justice, Equality and Law Reform was not a judgment about abortion, and so it is not surprising that the Court did not expand on this last point about the common good at any greater length. Some people might ask whether the ‘common good’ provides sufficiently robust safeguards for prenatal human life; whether it is a suitable ‘replacement’ for the foetal right to life currently enshrined in the 8th Amendment. In answering that question there are two important initial points to bear in mind.

1)What does the foetal right to life  protect?

It is doubtful whether the foetal ‘right to life’ under the 8th Amendment has protected prenatal life by preventing women living in Ireland from accessing abortions. It does not prevent women from travelling to terminate pregnancies; indeed, since 1992, women have a constitutional right to do so (if they have the means to exercise that right). The rate of women travelling for terminations did not drop after the Amendment was passed. It did not drop significantly even during the years of overt censorship of abortion information. From this perspective, it is difficult to see what additional protection the Amendment conferred on prenatal life over and above the ongoing legislative ban on abortion. As Horner J noted, in a recent Northern Irish judgment, the only preventative effect of a law requiring women to travel to terminate pregnancies is on the ability of marginalised women to access healthcare. The law’s main achievement has been the symbolic protection of the profound moral values of a subset of the population. 

2) At what cost?

The  foetal ‘right to life’ under the 8th Amendment has had deeply damaging effects in Irish law, which go beyond the simple protection of morals.  Constitutional protections for potential human life or foetal personhood are highly unusual, and globally are associated with a range of serious harms including criminalisation of women, denial of health preserving medical treatment, and denial of access to safe abortion. Ireland’s constitutional law on foetal personhood is among the strictest in the world. Unlike, for example, the Chilean constitutional provision, it does not permit access to abortion even in cases of rape, and foetal abnormality.

The Amendment speaks about equal rights to life; of the foetus on the one hand and of the pregnant woman on the other. But ‘life’ here does not mean quality of life, and it does not encompass health or well-being. Life is ‘bare’ life; the right of the foetus to an opportunity to be born alive, weighed against the woman’s right to survive the pregnancy. As the Italian Constitutional Court observed in 1975, this is formal equality, not substantive equality – the foetus and the woman are granted the same right, irrespective of their obvious differences. A woman’s other ordinary generic constitutional rights (to bodily integrity, privacy, family life, liberty, equality and so on) are suspended; they have no independent force in cases of conflict between her survival and that of the foetus. As long as the woman survives pregnancy, her relevant constitutional rights have been vindicated. No detailed account is taken of the woman’s particular circumstances; of whether she is rich or poor, healthy or sick, a child or an adult.

The woman and the potential baby she is carrying are adversaries. They do not share risk to life equally; rather the woman, as the presumptively stronger life, must sacrifice as much as practicable to keep the more fragile foetus’ life in being. The fundamentally relational nature of pregnancy is ignored. No meaningful account is taken of the complex and inescapable intertwining of their lives – as Ms Y’s case showed us, if we cannot preserve the foetus’ opportunity to be born without doing the woman grave violence, so be it.

This law makes for hard cases. As we know from repeated efforts to legislate for the misery of fatal foetal abnormality, as long as there is even the slightest chance that the foetus can be born to draw even a single breath, the pregnancy cannot be ended.  Legal access to abortion is restricted to a sub-set of cases of risk to life – about 25 annually – (where the risk is ‘real and substantial’ and termination of the pregnancy is the only means of avoiding that risk).  If a pregnancy becomes an intolerable burden on a woman’s health, her doctors must wait and wait for her health to degrade until her life is at ‘real and substantial’ risk. They may be able to offer her some care for her condition, but not necessarily the most effective treatment, if that treatment would pose a risk to her foetus’ life. The Amendment is actively damaging to women’s health.

Of course, prominent doctors advocating for a ‘No’ vote tell us that they have been able to save women’s lives; to pull them, heroically, back from the brink. But they do not tell us what safer treatments were ruled out by the Amendment, and they do not tell us what the long-term health impacts have been for women whose health has been allowed to degrade in pregnancy. Talk of ‘two patients’ obscures the reality of this basic legal rule, which, as we know from cases like PP v HSE, tolerates rigid and hard-line interpretation. At present, there is no viable legal way out of this problem; women and their partners, faced with a wanted pregnancy gone badly wrong, cannot decide as parents how best to proceed in the interests of their own family. They are not parents any more once the foetus’ life is at risk. The woman is, in the language of the Colombian Constitutional court, “a reproductive instrument for the human race”. Her husband or partner is a bystander to her suffering.

That is the cost of the 8th Amendment. Most of us are no longer indifferent to it.

3) What about the ‘common good’?

Taking these two points together, the case for retention of our current foetal right to life is weak – it does not do what it promised originally, and it does not reflect our fundamental values around the treatment of women in pregnancy; the treatment of mothers. We should not seek a post-repeal ‘equivalent’ to the existing foetal right to life under the 8th Amendment. We should seek a new constitutional balance which better reflects our societal values around pregnancy, especially as these have evolved since 1983.

A recent letter to the Irish Times argued that repeal would set the foetus’ constitutional status at nought. That is not only incorrect as a matter of law, but also ignores what happens to a woman’s constitutional rights under the 8th. Under the 8th Amendment, the woman’s otherwise-absolute right to life is pared back to the nub. Under the 8th Amendment, her right to freedom from torture is set at nought; she is the subject of expected sacrifice. That must change after repeal – the ordinary shape of her constitutional rights must be restored.

That would mean recognising the pregnant woman as a full rights-bearing subject. The woman’s right to life would be absolute once more, whether she is pregnant or not, and so the state would have to improve access to abortion where her life is at risk.  She would be entitled to more than survival. Her right to freedom from torture, although difficult to articulate in a medical context, would also  return to being absolute, whether she is pregnant or not. Vindicating that right likely requires decriminalising abortion in cases of rape and fatal foetal abnormality, and certain severe risks to health.

However, none of the woman’s other constitutional rights carry equivalent force to the right to life and the right to freedom from torture; the state is entitled to restrict these in the interests of the common good. The state, in other words, must make exceptions for the hardest cases, but it enjoys wide discretion in how it may legislate for other cases. Recognising women’s rights in pregnancy would not mean recognising an unfettered ‘right to abortion’.

It is, of course, true that the decision to remain pregnant or end a pregnancy is unique and intimate, and the state should tread carefully before compelling a  woman to continue with an unwanted pregnancy. Protection for personal autonomy – for the opportunity to make our own decisions as ethical beings – is crucial to our integrity, dignity and security as women. However, there is European and international legal consensus on the state’s entitlement to regulate access to abortion even in early pregnancy. As the European Commission famously held in Bruggeman 20 years ago, pregnancy is not only a matter for women’s private decision-making.  And as our Supreme Court alluded to in M,  the state is entitled to pass legislation which restricts her in the exercise of those rights, in order to preserve respect for prenatal life, in the interests of the common good.

The ‘common good’ here refers to the prevailing ideas of social justice, national policy and public morality that animate our shared national life; to the profound social values that we would expect to see protected by law and that ought to be the basis of our constitution. The common good encompasses those shared goods that we think are essential to human fulfillment. These ideas include our pressing and substantial interest in the continuation of voluntary pregnancy, as well as our compelling desire to ensure that women are treated with compassion, respect and love, in pregnancy and throughout their reproductive lives. In other jurisdictions with no constitutional foetal right to life, the common good or equivalent concepts are used to justify restricting access to abortion, and ensuring that respect for prenatal life remains a central constitutional value.

After repeal, the state will be entitled to impose proportionate (not minimal, but proportionate) burdens on women’s non-absolute constitutional rights in the interests of the common good. The state is clearly entitled, as the current government proposes to do (i) to set time limits to abortion access (ii) to ban abortion of viable foetuses (iii) to subject abortion to medical third-party verification (iv) to criminalise doctors who perform unlawful abortions (v) to impose mandatory waiting and reflection periods for women accessing abortion in early pregnancy (vi) to prohibit access to abortion on disability grounds.  As long as these restrictions are not implemented in such a way as to prevent meaningful access to legal abortion, as long as they are not implemented with cruelty, they are presumptively lawful. In particular, the state is entitled to take a ‘periodic’ approach and impose more serious restrictions on abortion access as the pregnancy progresses – this position reflects the understanding that the independent life a pregnant woman is sustaining evolves as the pregnancy progresses.

However, the state is not confined to the prohibitive, negative, invasive and cruel model of law-making which has developed under the Amendment. As the Portuguese Constitutional Court has acknowledged, the continuation of early pregnancy depends heavily on the pregnant woman’s commitment, and the pregnancy is best supported by supporting her in turn. As McCarthy J (echoing the German Supreme Court’s first abortion decision) recognised as long ago as the X case, more compassionate and supportive measures are also possible.

Legislation may be both negative and positive: negative, in prohibiting absolutely or at a given time, or without meeting stringent tests: positive by requiring positive action. The State may fulfil its role by providing necessary agencies to help, to counsel, to encourage, to comfort, to plan for the pregnant woman, the pregnant girl or her family. It is not for the courts to programme society; that is partly, at least, the role of the legislature.

The government’s current proposals for better access to contraception and sex education are very much in this vein. Better socio-economic supports for pregnant people and parents, of course, would also demonstrate that we value pregnancy and its continuation.

Conclusion

In arguing for repeal, we are arguing for space to develop a constitutional model which is not based entirely on a clash of absolute rights; which recognises women as full legal persons, while balancing their needs against the broader demands of the common good.

The common good does not interact with a woman’s rights in the same way that a rigid foetal right does. It can restrict some of her rights, but not all. It cannot pare back her right to life or trump her right to freedom from torture. It requires some attention to proportionality; to whether the state can protect prenatal life without punishing the woman. The common good offers strong protection for potential human life. As a tool of legal reasoning, it can be much more nuanced than the rigid framework imposed on us by the 8th Amendment. (It was for this reason, for example, that the Slovak constitutional court chose, in an important judgment, to protect prenatal life as a constitutional value rather than as a right of the foetus). A law that did not offer any protection for prenatal life would not be in keeping with the common good.

The 8th Amendment inserted a blunt foetal right to life into the Constitution; in the process side-lining the development of our deeper sense of the common good at stake in regulating abortion access. It took the deeper political process of developing an account of that common good – of reconciling our recognition of women as full and equal citizens with our deep respect for early human life – out of the hands of the Irish people, by insisting that, in all cases, no matter how contested, there was really only ever one answer. A referendum is a chance to rethink our prevailing conceptions of the common good; to reinvigorate them for today’s Ireland, and to place them again at the heart of our constitutional order.

 

 

Repeal, Abortion and the Common Good: Beyond Foetal Rights?

#abortiontravel Cordelia Freeman on “The Chile-Peru Abortion Trail and the Irish Experience”

This post is contributed by Dr Cordelia Freeman of the University of Nottingham. It is based on a full-length journal article available at: Freeman, C. (2017). The crime of choice: abortion border crossings from Chile to Peru. Gender, Place & Culture, 24(6), 851-868.

The Chile-Peru abortion trail is almost unknown but provides a useful way to reflect on the experiences of Irish women who travel to Great Britain in search of abortion healthcare. Drawing on research on the Chile-Peru case, this post reflects on some similarities and differences with the Ireland-Great Britain example.

Chile has had some of the most restrictive anti-abortion laws in the world. Until last yearabortion was illegal in every single case and now it will be permitted in three very strict cases; if the pregnancy was a result of rape, when the woman’s life is at risk, and when a foetus is not viable. The criminalisation of abortion has not prevented women from procuring abortions but instead has pushed the practice further underground with fatal results. The primary cause of maternal mortality in Chile is complications arising from clandestine abortions and mortality due to abortion is between 10 and 100 times higher in Latin America than in most European countries. The National Health Service estimates that in 2014 there were almost 34,000 admissions after abortions which had gone wrong. Women are quite literally dying due to state legislation. Continue reading “#abortiontravel Cordelia Freeman on “The Chile-Peru Abortion Trail and the Irish Experience””

#abortiontravel Cordelia Freeman on “The Chile-Peru Abortion Trail and the Irish Experience”

#abortiontravel Sydney Calkin on “The Changing Geographies of Abortion Access”

This post is from Dr Sydney Calkin of the University of Durham

Abortion access is fundamentally geographical: looking at abortion as an issue of space and power can help us to understand the continuities between contexts where abortion is illegal and where it is legal, as well as the gaps between abortion law and access in practice. In this post, I draw on a geographical approach to abortion to make two arguments:  first, spatial strategies to restrict abortion access often take the form of regulation of medical care that do not directly attack the legality of abortion but make it practically unavailable by making willing doctors scarce or distant. Second, medication abortion is transforming this landscape by challenging medical control over abortion and is prompting the state to respond to re-assert control.

Laws that ban abortion do not operate in a geographical vacuum: in a world of increased mobility, low-cost travel, and cross-border social networks, women who live in states with highly restrictive abortion laws can (and do) access abortion by going abroad. In Ireland, for example, 9-10 Irish women still travel to Englandevery day in pursuit of abortion access. Irish women are dependent on medical services in England, so that changes in healthcare availability in England has serious consequences for non-residents. The reliance on abortion trails is not limited to inter-state travel between states with different abortion laws; it happens as well within states where abortion access is deliberately constrained and made scarce. In places where there is legal provision for abortion, opponents of abortion rights deliberately create extra-legal obstacles that widen the spaces between women seeking abortion and doctors willing to provide it. Geography becomes a useful tool for widening and compounding inequalities to access and making abortion access dependent on a woman’s mobility, as a factor of her wealth or migration status. Continue reading “#abortiontravel Sydney Calkin on “The Changing Geographies of Abortion Access””

#abortiontravel Sydney Calkin on “The Changing Geographies of Abortion Access”

#abortiontravel Kath Browne & Catherine Nash on “Love both?: Naming Heteroactivism”

This post is from Professor Kath Browne of Maynooth University and Professor Catherine Nash of Brock University

It is becoming increasingly important to give a name to the ways in which gender and sexual rights are being resisted.  Those opposed to gender and sexual rights no longer employ the spectre of the ‘disgusting’ gay man or heap scorn on ‘fallen women’, as such tactics are barred, both legislatively (including criminalising hate speech) and culturally (Ireland as an egalitarian place is becoming core to national identities).

However, resistances to sexual and gender rights remain and they now take a different form than in the past: they employ a framing we name as ‘heteroactivism’.  Heteroactivism operates distinctively in places where ‘unnaturalness’ cannot be linked to the figure of the ‘disgusting homosexual’ because this figure is now generally seen as accepted as part of the nation.  Instead, heteroactivists focus on ‘natural’ procreation and genetics, thereby seeking to reassert heterosexuality as the ‘normal’, common sense and unquestioned centre. Heteroactivism relies on a particular form of heterosexuality (married, childrearing couples, composed of normatively gendered men/women), claiming not only that it is  ‘best for children’, but that such configurations are the ‘best for society’.  Whilst it may seem that the notion of heteroactivism most clearly applies to opposition to same-sex relationships and families (as well as to the very existence of trans people) heteroactivism is also a useful term to understand those who are opposed to abortion/choice. Continue reading “#abortiontravel Kath Browne & Catherine Nash on “Love both?: Naming Heteroactivism””

#abortiontravel Kath Browne & Catherine Nash on “Love both?: Naming Heteroactivism”

#abortiontravel Katherine Side on “Medical Abortion Use: Post-Referendum Possibilities”

This blog post is from Professor Katherine Side of Memorial University, Canada

Despite the lengthy process leading up to the May 25, 2018 referendum on Article 40.3.3 (the Eighth Amendment) of the Constitution, there is little direct discussion about medical abortion. Legal access to abortion in Ireland is long overdue, and pending a ‘repeal and replace’ vote, the Taoiseach and the Tánaiste propose a “doctor-led” protocol [1]Where doctors’ involvement provides clarity and support for medical abortion, it is likely to be welcomed. Where doctors’ involvement limits access, impinges on timeliness, and breeches privacy, it is likely to be unwelcomed. Medical paternalism, legal scholar Sally Sheldon notes, can be just as restrictive as state paternalism.

The referendum outcome could provide clear legalisation, safe practices, and expanded access. Consideration must be given to who is involved and how they’re involved in abortion. Medical abortions are safer with expanded access, not restricted access. Better health outcomes could be achieved through a state-supported model that balances access to medication and a wider range of qualified practitioners, with rights to safety, security, and privacy. Continue reading “#abortiontravel Katherine Side on “Medical Abortion Use: Post-Referendum Possibilities””

#abortiontravel Katherine Side on “Medical Abortion Use: Post-Referendum Possibilities”

Blog Carnival: Spatiality and Abortion Travel

On 27 February 2018 the Institute for Advanced Studies at the University of Birmingham hosted a workshop, organised by Fiona de Londras and Sydney Calkin, on ‘Spatiality and Abortion Travel’. This was generously hosted by the Long Room Hub in Trinity College Dublin.

Focusing primarily on Ireland, the day considered abortion travel and the ‘spaces’ between abortion law and the reality of access to abortion across disciplines and countries.

Over the course of this week we will publish one post per day presenting some of the insights from the workshop. The hashtag is #abortiontravel

Blog Carnival: Spatiality and Abortion Travel

Repeal and Replace?

In the last week, while the members of the Oireachtas were making statements in response to the report of the Joint Committee on the 8th Amendment as well as the Citizens’ Assembly recommendations which it discussed, the spectre of repeal and replace has arisen again. The Citizens’ Assembly recommended the repeal of the 8th Amendment and its replacement with a provision “explicitly authorising the Oireachtas to address termination of pregnancy, any rights of the unborn and any rights of the pregnant woman”. It is broadly agreed that in doing so the Assembly was reflecting a concern with the possibility of residual constitutional foetal rights existing that might, through subsequent litigation, be found to frustrate or circumscribe the Oireachtas in legislating for abortion. The Joint Committee acknowledged that concern but, finding the risk of it materialising in ‘real life’ marginal, proposed instead a ‘repeal simpliciter’ that would delete Article 40.3.3 and not replace it with anything. We now hear that both the Taoiseach and, potentially, leader of Fianna Fáil Micheál Martin are concerned with the possible ramifications of repeal simpliciter, so that repeal and replace is firmly ‘back on the table’. In this post I outline (a) whether this is necessary, and (b) if it were to be pursued what the options are. Continue reading “Repeal and Replace?”

Repeal and Replace?

Shifting Sands Under the Abortion Debate

This guest post is contributed by Donnchadh O’Conaill, a post-doctorate researcher at the Department of Philosophy in the University of Fribourg, Switzerland. It is written and contributed in a personal capacity.

This week the Dail meets to discuss the Oireachtas Committee ‘s recommendation that abortion be allowed on request up to 12 weeks into a pregnancy. This is likely, though by no means certain, to form the basis of a proposal to remove the Eighth Amendment from the Constitution. The committee’s recommendation was a politically momentous decision, but one which may have even greater significance in shaping the direction of the national debate to come.

Until recently much of the narrative around repealing the Eighth Amendment had focused on certain types of cases and on specific grounds on which abortion might be justified. These cases included fatal foetal abnormalities and pregnancies which occur as a result of rape or incest.[i] Stories describing these cases are undeniably powerful. They are by no means the only kinds of case which have been discussed, but they have been central to the growing movement for repeal. Continue reading “Shifting Sands Under the Abortion Debate”

Shifting Sands Under the Abortion Debate

Liberty, the ICCL, and other NGO groups’ landmark challenge against the UK Government’s mass surveillance

Today, 10 human rights organisations including the Irish Council of Civil Liberties (ICCL) brought a court challenge against the lawfulness of the UK Government’s mass digital surveillance regime. They argued at the European Court of Human Rights that the UK government’s ability to access people’s private communications, without their knowledge or consent, is unlawful. The case is founded on Articles 8 (the right to privacy), Article 10 (the right to freedom of expression and information), and Article 14 (against discrimination) of the European Convention on Human Rights.

This is not the first time ICCL has challenged the UK’s surveillance systems. In 1999, ICCL, Liberty and British-Irish Rights Watch brought another challenge to the Strasbourg Court in relation to the UK Ministry of Defence’s system of surveillance. In its 2008 judgment, the Court found that the UK system was in breach of the right to respect for private and family life under Article 8.

Almost ten years later, the present case concerns the  existence of digital surveillance programs that are now far more extensive and powerful. Edward Snowden revealed through released documents in 2013 that governments across the world are using modern technology to collect our private communications in bulk. The UK has intercepted and stored all communications entering and leaving the UK via fibre-optic cables.

Here in Ireland, fibre-optic cables are also alleged by Snowden released documents to have been intercepted. The Snowden documents show specifically how the framework of cables connecting Ireland to digital information beyond its borders are being tapped by the UK government.

Apart from everyday citizens, the UK government is also watching human rights organisations aligned with the ICCL, giving rise to grave concerns about the impact of surveillance on democratic freedoms. In particular, we now know that they’ve spied on the South African Legal Resources Centre, a rights group connected with the ICCL through the International Network of Civil Law Organisations (INCLO). INCLO is 13 independent national human rights organizations in the global North and South.

This level of interference in our private activities via digital surveillance is unprecedented. Through access to our digital data, governments can now easily see where we’re going, who we’re talking to, and what interests we have. All without our knowledge or consent. The ICCL stands against these encroachments on our fundamental right to privacy.

Several INCLO members have also joined Tuesday’s court challenge against the UK’s international surveillance regime, including the Legal Resource Centre, Liberty, the American Civil Liberties Union, the Egyptian Initiative for Personal Rights, and the Canadian Civil Liberties Association.

As Martha Spurrier, Liberty’s Director has written of the mass surveillance: ‘No democratic state has ever deployed it against its citizens and human rights advocates and remained a rights-respecting democracy’.

The Snowden files have shown the world the power and potential threat that modern mass surveillance poses to our privacy and to democratic freedoms. We at the ICCL and our international human rights colleagues understand that it is necessary to work together to safeguard privacy rights on a global scale. We will continue to fight, at the European Courts and elsewhere, against the erosion of our hard earned democratic rights via government programs of mass digital surveillance.

Elizabeth Farries is the Information Rights Program Manager for both the Irish Council of Civil Liberties and the International Network of Civil Law Organizations. She is also a PhD Candidate researching digital privacy rights and cybermisogyny at the Trinity College Dublin.

Liberty, the ICCL, and other NGO groups’ landmark challenge against the UK Government’s mass surveillance

What Ireland can gain from international guidance on Article 19 UNCRPD

Human Rights in Ireland is delighted to welcome this guest post from Aine Sperrin. Aine is a PhD student at the Centre for Disability Law and Policy, NUI Galway, where her research focuses on achieving the right to independent living for people with intellectual disabilities in post-conflict states. This blog has been written by Aine in a personal capacity and does not represent the opinions or positions of any organisation with which she is associated.

This year marks the tenth anniversary of Ireland signing the United Nations Convention on the Rights of Persons with Disabilities (CRPD). This landmark has been seized upon by disability advocates to highlight the delay in recognition of their rights. It has prompted a resurgence of rights awareness and reignited a public discussion on the standards of services and lack thereof for persons with disabilities.

Independent living is an activity which the majority of us perform every day. It is fundamentally based on utilising the resources and supports necessary to live our daily lives in the way which we see fit. The concept evolved when patriarchal, segregated medical models of disability services were rejected by persons with disabilities in the 1960s in the United States. The ethos of the Independent Living Movement demanded choice and control over one’s own services and recognition of society creating disabling barriers. Continue reading “What Ireland can gain from international guidance on Article 19 UNCRPD”

What Ireland can gain from international guidance on Article 19 UNCRPD