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.
Is repeal and replace necessary?
There is an arguable legal case that repeal and replace is necessary if we want to ensure that the Oireachtas has the power to legislate for abortion unrestricted by any constitutional rights of the foetus. This is because (a) there are some (non-binding) suggestions from early case law that the foetus had constitutional rights before the insertion of the 8th Amendment in 1983, (b) there are some (conflicting) suggestions from contemporary case law that the foetus may have a larger suite of constitutional rights than ‘only’ the right to life enshrined in Article 40.3.3. So there is some cause for concern.
However, it is reasonable to expect that should the electorate vote to remove the 8th Amendment in the context of the current repeal debates and discourse—i.e. clearly to allow for a substantial legislative space for the Oireachtas—that any court faced with an argument of foetal constitutional rights would most likely interpret the deletion of Article 40.3.3 as removing constitutional rights from ‘the unborn’.
This would not mean that there would be an absolute right to access abortion: the rights on which access to abortion would then rely (e.g. privacy, and bodily integrity) can be limited by the pursuit of a legitimate social aim provided those limitations are proportionate. So, as in other countries, time limits or procedural requirements could be imposed on access to abortion, but those limitations could not diminish the ‘heart’ of a pregnant person’s right to access lawful abortion.
In all likelihood, then, a simple repeal would ensure the Oireachtas could legislate for access to abortion and that unenumerated foetal rights would not exist to undermine or frustrate that. But of course such an outcome cannot be guaranteed, and it seems to be this—this quest for absolute legal certainty—that is driving much of the argument in favour of a replacement provision. To some extent it seems as if politicians want to be absolutely sure of what they can do so that no claims of unconstitutionality would emerge. But legal certainty of that kind just doesn’t exist; not in any field of policy. Instead, we seek a reasonable level of legal certainty within which the Oireachtas can operate and accept that from time to time a challenge in court might reveal that it overstepped its constitutional bounds. There appears to be a political nervousness, though, in accepting such a level of certainty as sufficient in the context of abortion (on which see this excellent analysis from Máiréad Enright). This might well be where the suggestions that abortion law could even be immune from judicial review come from, notwithstanding the extraordinary and (to my mind at least) unjustifiable nature of such a proposition.
So, while there may be a technical legal argument in favour of repeal and replace (indeed, this is an argument that I myself subscribed to for some time—see p. 11 and following here), what underpins it may well be a deep desire for some absolute and final determination of the constitutional position on abortion, absolving the Oireachtas of its usual role of making a judgement about whether proposals are or are not constitutional, and removing the possibility of constitutional judicial oversight.
Options for Replace
If the proposal to repeal and replace is pursued, then the replacement provision must be carefully considered. There does not seem to be any realistic argument being made that a replacement provision would try to enunciate the situations in which abortion would lawfully be available in Ireland; the mention in Micheál Martin’s speech of an ‘enabling’ provision, for example, indicates clearly that such a detailed provision is not in mind. Nor should it be. As agreed almost universally by experts at the Joint Committee, such a complex provision would create unacceptable levels of uncertainty and a cumbersome and unworkable constitutional landscape. Instead, if what is sought is a simple enabling provision, then it should be designed by reference to its objectives:
- To clearly establish that the Oireachtas may legislate for abortion
- To clearly establish that no unenumerated constitutional rights remain for the foetus that would undermine that legislative capacity
- That abortion is otherwise to be regularised as a matter of politics, policy and law and thus subject to the ordinary oversight of the courts
As I have previously argued, doing that can be achieved by a simple provision such as ‘Nothing in this Constitution prohibits abortion as provided for by law’. Should one prefer a more positive wording, something like ‘The Oireachtas is hereby empowered to regulate the termination of pregnancy by law’ might be considered, but the latter wording does not clearly indicate that (if they exist) unenumerated foetal rights have been repealed.
What is of fundamental importance, however, is that any proposed replacement should not attempt to reinsert ‘the unborn’ as a constitutional rights bearer, or to ‘balance’ the rights of the pregnant person and the foetus in its text. To do this would simply muddy the waters of the scope and nature of the Oireachtas’ legislative authority and pregnant people’s constitutional rights, and in doing so utterly undermine the decisional security that pregnant people need to make decisions that are right for them about whether to continue with a pregnancy.
The protection and preservation of foetal life is a legitimate and valuable societal goal. However, when that is pursued by endowing the foetus with constitutional rights it sets up a legal contest of rights between a pregnant woman her foetus that inevitably results in the practical reduction of women’s enjoyment of constitutional rights. It is far better to pursue the preservation of foetal life through the promotion of voluntary and consensual pregnancy by providing appropriate sex education, contraception, health care, effective and adequate social and socio-economic supports for parenting, and a well-designed law regulating abortion in which proportionate limitations on or procedural requirements for access to abortion are laid down in law. Such a law much be accompanied by rights-based guidelines and medical training, and must place at its centre the wishes, well being, health and empowerment of pregnant women.
A replacement constitutional provision cannot hope to achieve that, and if it is to be pursued at all, must be a simple enabling provision that enhances clarity around the legislative power of the Oireachtas by ensuring that residual foetal constitutional rights cannot be invoked to prevent access to lawful abortion.
This draws to some extent on arguments made in Fiona de Londras & Máiréad Enright, Repealing the 8th: Reforming Abortion Law in Ireland in which we argue in favour of repeal simpliciter. The book will be published on 7 February 2018 and will be made available for free online.