This joint post by Máiréad Enright and Fiona de Londras draws heavily from Enright & de Londras, “’Empty Without and Empty Within’: The Unworkability of the Eighth Amendment after Savita Halappanavar and Miss Y” (2014) 20(2) Medico-Legal Journal of Ireland __ (forthcoming)
The current constitutional framework for abortion, stemming from the Eighth Amendment, inflicts significant harm on women. However, notwithstanding that, some argue that there is nothing to be done. An assortment of arguments about ‘political will’ assume that because the electorate has voted on ‘the abortion issue’ three times, there is no legitimate scope for a referendum to repeal the Eighth Amendment and reform the constitutional position. In this post, we argue that a referendum is required for the purposes of constitutional regeneration and then consider two options for constitutional reform, arguing that rather than simple repeal, repeal and replacement of the Eighth Amendment would be the appropriate approach.
Justifying a Fourth Referendum
In its submissions to international human rights treaty bodes and the European Court of Human Rights, as well as its responses to the pronouncements of these bodies on Ireland’s abortion law regime, the Government tends to claim that the current law in Ireland reflects the sovereign will of the people, basing this claim on the fact that it emanates from a series of constitutional referenda on abortion. It is possible to unpick this argument from a critical perspective: one could point to the dysfunctional political processes that generated the Eighth Amendment in the first place, to the limitations of the referendum questions put to the electorate, or to the expanse of time and cultural change that stands between us and 1983. However, even leaving these arguments to one side and accepting the Eighth Amendment and subsequent abortion referenda as legitimate expressions of political will, there are compelling reasons for holding a fourth referendum on abortion.
Our argument is a simple one of constitutional renewal: a ‘forward looking argument’. When we have faced positions like the current one before, in which stagnant processes of constitutional interpretation by the judiciary or other state agents, have produced an unworkable legal framework not in-keeping with the broader spirit of the Constitution, we have held referenda to begin again. This is how we added the rights to travel and the rights to information to the Constitution, for example. The Children’s Rights Referendum is one key recent example. The Citizenship Referendum in 2003 was, arguably, another. Furthermore, where a constitutional status quo seems considerably at odds with popular demands for a revised constitutional settlement, the principle of popular sovereignty upon which the Irish Constitution rests, and which was reflected in the Constitutional Convention held last year, militates towards reform.
It seems incongruous to accede to popular demands for referenda on minor changes to voting age and presidential term, for example, and to simultaneously continue to refuse the people an opportunity to vote in a liberalising abortion referendum.
Furthermore, the current operation of the Eighth Amendment is the product of suffocating trends in interpretation of the constitutional text, both in the courts and elsewhere. We appear to have developed a constitutional regime that allows women’s lives to be put at risk in ways that are very difficult to justify except outside a very restrictive reading of the Constitution: as Ruth Fletcher has argued, phrases such as ‘equal right to life’ and ‘as far as practicable’ could be interpreted in a more imaginative and liberal way to deal with, for example, fatal foetal abnormality and abortion in situations of clear unviability. However, interpretive interventions of this kind are highly unlikely, and mere adjustment of the PLDPA cannot adequately address the harm imposed on women by the constitutional status quo. Furthermore, the current law on abortion in Ireland is inconsistent with our international obligations, as noted by the UNHRC earlier this year.
Thus, there are compelling democratic, practical, and legal reasons for holding a constitutional referendum to reform Irish abortion law, however the question of the form that such a referendum might take remains an open one. There are two clear options for effective reform by means of constitutional referendum: ‘simple’ repeal of relevant constitutional provisions, and replacement of current provisions with new provisions expressly outlining the availability of abortion in Ireland. Both options raise some particular questions and challenges, and both would require legislation in order to give them proper effect should the referendum in question be successful.
Option 1: ‘Simple’ Repeal
Some pro-choice campaigners advocate a simple repeal of the Eighth Amendment, in the hopes that this would de-constitutionalise abortion, and return it to the legislative sphere. In effect, the argument goes that removal of Article 40.3.3 would leave the Constitution protecting a general right to life, without express reference to unborn life, and that in any subsequent litigation the Supreme Court would take the referendum result as indicating an intention to abolish the constitutional prohibition on abortion. Excising the constitutional provision would rid Article 40.3.3 of any further effect, ostensibly leaving the contours of abortion law for political settlement in the Oireachtas.
However, it is not necessarily clear that the effect of repeal would be quite as straightforward as this suggests. It may well the case that the Constitution contains loose threads, which might influence judges in a later case so that the Constitution may be said to contain a meaning not anticipated by the repeal campaign. Assuming that the effect of repeal is prospective only, there is an argument, based on dicta from a number of cases, that the foetus in utero enjoyed a constitutional right to life prior to the insertion of Article 40.3.3: this is certainly suggested in G v. An Bord Uchtala  IR 32, and the judgments of Walsh J in McGee, McCarthy J in Norris and Barrington J in Finn v. The Attorney General  I.R. 154.
Should Article 40.3.3 be removed from the Constitution there is a possibility that this jurisprudential conceptualisation of the right to life as include a right to be born might be revived to assert a constitutional right to life of the unborn, which would then have implications for the autonomy and bodily integrity of pregnant women and might well constitutionally constrain abortion law reform. Although unlikely, given that the express purpose of a repealing amendment would be to de-constitutionalise abortion, this nonetheless remains a possibility.
The X Case illustrates the practical, political and legal challenges that can flow from judicial interpretation of constitutional texts relating to abortion, and indeed the possibility of unanticipated consequences of seemingly straightforward constitutional amendments, so that a ‘simple’ repeal without the insertion of any clarifying provisions carries with it remote, but real, risks of the judicial re-constitutionalisation of abortion.
Option 2: Repeal and Replacement
The second option for constitutional reform is the repeal and replacement of Article 40.3.3 in order to make clear the constitutional position relating to abortion in a manner similar to the 15th Amendment (on divorce). Bearing in mind that an overly detailed constitutional provision can hamstring subsequent legislative efforts and make law reform burdensome, a relatively modest approach to a replacement provision would seem advisable.
This could be achieved by replacing the current text with an express right to bodily integrity together with the right to life, which the state would pledge to vindicate and protect, followed by a secondary provision employing the ‘Nothing in this constitution shall operate…’ formula to explicitly permit the introduction abortion.
A formulation of this kind should place beyond doubt the deconstitutionalisation of abortion per se while leaving the precise parameters for the provision of abortion to be determined through the political sphere and for subsequent revision and reform if appropriate and desired. It should also preclude the state from upholding a law which is inconsistent with international human rights law and comparative practice in the field of abortion law, on the basis that it represents the ‘will of the People’. It should ensure, accordingly, that governments must take full political responsibility in domestic and political spheres for their decisions as to the availability of abortion in Ireland.