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:
- 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,
- The foetus will still enjoy certain protections at common law and under statute and
- ‘[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, besides, of course a symbolic protection of the profound moral values of a subset of the population. 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.
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, even in instances where 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 they 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 is absolute, whether she is pregnant or not, and so the state would have to improve access to abortion where her life is at risk. She is entitled to more than survival. Her right to freedom from torture, although difficult to articulate in a medical context, is also 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, so as to protect the pressing and substantial public interest in ensuring respect for potential human life. 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 strong shared commitment to the continuation of voluntary pregnancy, as well as our 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.
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.