Last night I attended and spoke at a public meeting organised by Action on X, a lobbying and campaigning organisation established to pressurise the government into introducing legislation for the X Case (Attorney General v X [1992] 1 IR 1), which is now 20 years old. As readers are likely to know, there is currently (yet another) Expert Committee considering options in light of X and of the ECtHR decision in A, B & C v Ireland and they are expected to report in four months’ time. In the meantime, the technical group in the Dáil made up of ULA and independent deputies will today initiate a bill to legislate for X, which will be debated in private members time on April 18 and 19. In this post I want to outline briefly the case for legislation and highlight the unconscionability of a 20-year legislative vacuum in light of the decision of the Supreme Court.

The Constitutional Position

Article 40.3.3 provides, inter alia,

The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.

The precise meaning of this provision—introduced by referendum largely because of fears of Roe v Wade-like jurisprudential developments here—came into dispute in the X Case in 1992. The facts of this case are rehearsed elsewhere; for our purposes the relevant point is the finding by the Supreme Court that

the proper test to be applied is that if it is established as a matter of probability that there is a real and substantial risk to the life, as distinct from the health, of the mother, which can only be avoided by the termination of her pregnancy, such termination is permissible, having regard to the true interpretation of Article 40, s.3, sub-s. 3 of the Constitution (Finlay CJ, [37])

The court went on to hold that the threat of suicide was a threat to the life of the mother that could give rise to a constitutional right to abortion. Indeed, that is the vital point about X: it confirms that there is a constitutional right to abortion where the life of the mother is at risk. This is not a matter of dispute in constitutional or legal terms. It is settled law. In the wake of X the People were twice invited to further narrow the constitutional allowance by removing the threat of suicide from threats to the life of a woman that might permit abortion, and on both occasions the People declined to do so. The constitutional right is settled and unimpeachable in the absence of constitutional change.

If there is a constitutional right, then what is the problem?

The problem—and the reason why legislation is required—is that the operationalisation of this right is unclear. The Court in X (and subsequent cases) quite rightly confined itself to identifying the right by interpretation of the Constitution; it did not outline the processes by which the right could be exercised. That is a legislative function. In the absence of such legislation numerous questions persist: is there a time limit on the constitutional right? What constitutes the unborn? What processes are to be undertaken to establish whether the test is fulfilled as a legal and medical matter? What legal implications arise for medical professionals who might believe a case falls into the test but who are subsequently found to be mistaken? How can a woman secure and exercise her constitutional right if she does fall within the test? What allowances must or should be made for conscientious objection by medical professionals? None of these matters are clear from the constitutional test.

The illusion of constitutionalism

The lack of clarity is compounded by the failure to legislate. Indeed, so dark a shadow does the uncertainty cast that the failure to legislate effectively empties the constitutional right out of its content; it renders it illusory. The failure by successive governments to legislate for X is quite simply an astonishing state of affairs in a constitutional democracy such as Ireland. We are talking here about a constitutional right that has practically no exercisability as a result of the persistent abdication of constitutional and political duties by Irish governments and parliamentarians. A woman who wants to exercise it seems to be in a position where, astonishingly she may need a court order to confirm that she may. An analogous situation in relation to other constitutional rights would rightly be condemned as intolerable. Not only does it show little respect for women’s constitutional rights, but it also shows little respect for the Constitution and the Supreme Court. It exposes the illusion of constitutionalism when it comes to this issue, for there is nothing of respect for the Constitution in a failure of this kind.

Successive reports have recommended legislation; the Supreme Court has chided governments for their failure to legislate; and the European Court of Human Rights has found that failing to put in place processes for the certain and clear exercise of this right breaches the Convention. There is nothing whatsoever to suggest the current expert committee will reach a different conclusion. Furthermore, in the General Election the Labour Party said it wanted to legislate not only for X but also for abortion where the health of the mother was at risk, i.e. to a broader degree than permitted by the Constitution at present. The right exists; it is not in question and has twice been reinforced by the People in referenda. There is no legally defensible reason for further prevarication.

Twenty years of an empty constitutional right is a frankly astonishing position for women to endure in this country. Over the next few months parliamentarians will have the opportunity to show respect for women, for the Constitution and for the people who elected them by finally closing this gap and ‘filling in’ this empty right. That they will most likely fail to do so displays something that increasingly looks like contempt for our constitutional order.

Powered By DT Author Box

Written by Fiona de Londras

Fiona de Londras is a Professor of Law in Durham University. Her third book, Detention in the War on Terrorism: Can Human Rights Fight Back?, was published by Cambridge University Press in 2011. She specialises in terrorism and counter-terrorism, human rights protection in Ireland and more generally, and international criminal law. You can contact Fiona at fiona.de-londras[@]durham.ac.uk