A Modest Proposal on Abortion Reform in Ireland

Yesterday the UN Human Rights Committee released its Concluding Observations on Ireland’s compliance with the ICCPR, following hearings in Geneva on which Máiréad Enright blogged here and here. Those Concluding Observations made difficult reading, especially—although not exclusively—as regards the (historical and contemporary) treatment of women in Ireland. One of the main loci for the Committee’s attention was abortion.

It is now just over a year since the Protection of Life During Pregnancy Act 2013 was introduced, and regulations for how the Act is to work are more recent still. That Act, as is well known, took a cautious and conservative approach to ‘legislating for X’, unjustifiably differentiating between processes for abortion in cases of risk of suicide and other risks to life, excluding abortion in cases of fatal foetal abnormality, and instigating an especially cumbersome process for assessing whether a woman is entitled to elect for an abortion in Ireland in any given circumstance. The Government’s position was that this was as much as the Constitution would permit, and the Act starkly reveals the political reality of trying to achieve legislative consensus between coalition parties that have divided views on the issue and in a climate of political caution, if not fear, about addressing the issue at all.

However, as the Concluding Observations show, even with this Act in place Ireland’s treatment of abortion is unduly restrictive when measured against international human rights standards; so much so, indeed, that Ireland has recently been characterised as a ‘cultural relativist’ in the context of abortion by Rosa Freedman—a claim that is difficult to dispute. Of course, that ‘cultural relativism’ flows from the constitutional position.

As it stands, it is not possible for Ireland to legalise abortion in cases of rape or incest, for example, and is arguably not possible to do so in respect of fatal foetal abnormality. The equal regard with which the Constitution treats the life of the pregnant woman and the foetus means that accessing an abortion in Ireland must be cumbersome to some extent, as the state has an obligation to protect unborn life. And so, as Minister Frances Fitzgerald said yesterday, Ireland has a distinct constitutional and legal position on abortion. That does not, however, mean that abortion law reform in Ireland is not possible. It simply means that meaningful reform requires constitutional change, and constitutional change can only come about in one of two ways: judicial activism or referendum.

Judicial activism to further liberalise Ireland’s abortion law is effectively unimaginable at this point for two reasons: (i) the text of the Constitution is so clear that the only space in which interpretation seems possible is in respect of fatal foetal abnormality where there is an argument that the constitutional text permits of abortion; and (ii) the strength of feeling on abortion is such that the judiciary will be understandably reluctant to stretch its interpretive muscle, not least given the capacity of cases on abortion to become political footballs for decades (such as X has done in Ireland and Roe continues to do in the United States). Judicial activism on abortion law can, then, be more or less discounted. This leaves just one option: constitutional amendment.

The key weakness in the Irish government’s claim that the current constitutional position reflects a deep seated moral position on abortion held by the people of Ireland is that there has never been a referendum that offered the People the opportunity to truly liberalise abortion law in this jurisdiction. Abortion referenda have inserted the express right to life of the unborn in the Constitution, inserted the right to travel for and receive information on abortion, and failed (twice) to prohibit abortion where the risk to life to the pregnant woman permitting of an abortion emanates from a risk of suicide. Never once have we been asked, for example, to permit abortion in cases of rape or incest, not to mention to simply remove abortion from the Constitution and allow the political process to determine the limits of abortion availability as it does in so many other jurisdictions.

The reasons why such a referendum has not occurred are, of course, deeply political: politicians are terrified of touching the issue of abortion, abortion-related lobbying and discourse in Ireland are unedifying in the extreme, and a number of political parties support the status quo and do not want constitutional change. However, the longer we deny the People the opportunity to determine whether we support the current constitutional position, the thinner the justification for Ireland’s culturally relativist position becomes.

A referendum on repealing the 8th Amendment or on introducing constitutional permissions for abortion in cases of rape, incest, fatal foetal abnormality and (expressly) suicidal ideation would seem to be the appropriate way forward. However, the political risk for any one party to put its head above the parapet and commit to such a referendum is not insignificant.

Thus, my modest proposal is that all of the major parties would reach a pre-election pact that regardless of who wins the General Election in 2016 and subsequently forms a government—whether in coalition or alone—the next government will hold a referendum on abortion early in its term. Such cross-party consensus would achieve three important things:

(i)            It would neutralise the political risks of committing to holding a referendum

(ii)          It would allow each party to maintain its own position on whether it would campaign for ‘tá’ or ‘níl’ in the referendum

(iii)         It would create sufficient time for the referendum question to be designed, drafted and prepared without being overly influenced by the political position of any particular party.

Such a pact would buck the orthodox approach to constitutional referenda in Ireland, but in this context that may not be such a bad thing, for what is certain is that we cannot continue to avoid the inevitable ugly and difficult debate on abortion that such a referendum would bring while continuing to claim that Ireland’s position on abortion is based on a domestic moral consensus reflected in the constitutional text.

A Modest Proposal on Abortion Reform in Ireland

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