Repeal or Replace?

Fiona de Londras | @fdelond

There is going to be a referendum on the 8th Amendment in 2018. That much is clear. What we don’t yet know is what proposition will be put to the people. In part, this is because the Citizens Assembly recommended that Article 40.3.3 “should be replaced with a constitutional provision that explicitly authorises the Oireachtas to legislate to address termination of pregnancy, any rights of the unborn and any rights of the pregnant woman”. In doing this, it is very clear that the Assembly was concerned to ensure that the Oireachtas would have the power to introduce wide-ranging abortion law reform should it wish to do so; this is evident from the legislative recommendations it then went on to make. Whether the Assembly meant that the Oireachtas should be given an express power to legislate, or whether it meant that the Oireachtas should have the power to create law that would be immune from constitutional challenge is unclear: I discussed this here. What is clear, though, is that the Assembly wanted there to be no dispute about the power of the Parliament to make law for abortion. Why, then, did it recommend repeal rather than replace?

The concern about repeal

A simple ‘repeal’ would simply delete Article 40.3.3 from the Constitution, leaving constitutional silence about abortion. This is, actually, the most common scenario when we look at constitutions around the world. As Máiréad Enright noted here, it is quite rare explicitly to govern abortion through the constitutional text. Why, then, is there some doubt about whether or not to simply embrace constitutional silence in Ireland?

The main reason is that it is not entirely clear whether the foetus had constitutional rights before the 8th Amendment was inserted in 1983, if so how extensive those rights were, and whether they would still exist even if the text in Article 40.3.3 were removed. In other words, there is an arguable case that simple repeal would not make sufficiently clear that the Oireachtas can legislate for abortion, even to what many would consider a fairly extensive degree (as recommended by the Assembly), and that any law that might be passed would be struck down by the Courts for unconstitutionally interfering with foetal constitutional rights. It is very clear—and widely acknowledged—that this is an unlikely scenario, but it is a possible one. It is also possible, but unlikely, that a Court would say that removing Article 40.3.3 would create an unlimited right to access abortion so that no restrictions on abortion would be permitted (e.g. term limits, or grounds).

By far the most likely outcome is that abortion could simply be regulated in the same way as we regulate most things. That is: the Constitution would require that laws for abortion respect recognised constitutional rights, such as pregnant persons’ rights to privacy and bodily autonomy. However, in doing that the Oireachtas could interfere with these rights (or limit them, let’s say) provided (i) they did so in pursuit of a legitimate aim, and (ii) they did so in a manner that was proportionate.

In other words, the Oireachtas could limit abortion access in order to pursue the societal value of preserving foetal life, but would have to ensure that limitations did not disproportionately interfere with women’s constitutional rights. It would have to strike a balance, just as the Citizens Assembly recommendation suggests.

The options for replace

The argument for replace is, in broad terms, that a replacement provision might make it clearer to both the Courts and the Oireachtas how the balance is to be struck. There are a couple of ways this could be achieved:

  • By expressly striking the balance by specifying grounds in the Constitution
  • By clearly establishing that foetal constitutional rights do not exist or act such to prohibit the regulation of abortion
  • By providing for an express, positive right to reproductive autonomy or health, or to self-determination in medical decision-making

Let me address each of these separately.

Expressly striking the balance by specifying grounds in the Constitution

This approach would involve saying that abortion was only permitted in specified cases. We might reasonably expect these to be at least rape, incest, ‘fatal foetal abnormality’, risk to life, and perhaps (serious) risk to health. The provision might say either that the Oireachtas may or that the Oireachtas must make abortion available in these cases; the latter of course would exclude any realistic possibility of foot-dragging.

However, specifying grounds has a number of significant disadvantages. First, it requires the terms themselves to be defined in a way that makes them usable. Given that we have not managed properly to define “unborn” in 34 years of jurisprudence on the 8th Amendment one wonders whether this is possible. Second, it is not clear how one would access abortion under these grounds—would you have to report a rape, for example—and there would be a possibility that legislation providing access to abortion would be struck down for making it practically impossible to access abortion even in these cases (by, for example, placing undue obstacles in the path of trying to exercise these rights). Third, it would tie the hands of the Oireachtas, which would not be able to respond to political, scientific, medical or other developments in order to make abortion more (or less) widely available in the future; that would require a referendum. Fourthly, it would simply not meet the needs of thousands of pregnant persons in Ireland who cannot access legal abortion in this country now. In other words, it would not solve the problem. It also would not enable the kind of legislative change clearly envisaged by the Citizens Assembly.

Clearly establishing that foetal constitutional rights do not exist or act such to prohibit the regulation of abortion

There are a few ways that a new constitutional text might make clear that the Oireachtas can legislate for abortion without being curtailed by legally enforceable, constitutional rights. The simplest is probably to insert a phrase such as ‘Nothing in this Constitution shall prohibit abortion as provided for by law’. Such a phrase makes it clear that the Oireachtas is permitted to legislate for abortion, although it does not compel it. It also clarifies the situation vis-à-vis foetal rights, so that when legislating for abortion the Oireachtas has to simply take into account whether any legislation it is proposing properly vindicates the rights of pregnant persons. As already mentioned, it could pursue a societal aim of preserving foetal life, but in doing so it could not interfere disproportionately with women’s rights. This provision very simply, in other words, places abortion into the realm of ordinary decision making for the legislature: it makes it clear that it can be approached as an object of law-making in the same way as any other issue, while clarifying that the Oireachtas is not constitutionally constrained from providing for abortion access.

What this proposed provision does not do is expressly to mention or address the broader implications of the 8th amendment. The 8th amendment is part of a socio-legal tapestry of norms, practices and behaviours in medical and legal practice that means that, when pregnant, women often experience a broad disregard for their consent, autonomy, and self-determination, including in labour. There is an understandable concern to try to ensure that addressing the 8th Amendment also addresses these broader implications. However, the negative wording I have suggested above would allow that to happen. First, removing the 8th Amendment would remove the constitutional ‘nudge’ towards an approach to maternal medical care that means that so many women experience disempowering and disempowered pregnancies. Second, removing the 8th Amendment would return pregnancy to the realm of ordinary constitutional rights protection, so that pregnant persons would reach for and seek to assert constitutional rights (such as privacy or bodily autonomy) in order to resist repressive approaches to medical and health care relating to a pregnancy. Whether this would be sufficient materially to change practice would depend on the broader approach to implementing constitutional change: it will require not only legislation on abortion, but possibly also legislation on autonomy and pregnancy rights, and certainly practicing protocols and guidance for the medical profession, as well as training and engagement in rights-based approaches to maternal medical care. However, that would likely be the case regardless of the choice of words inserted into the Constitution.

Providing for an express, positive right to reproductive autonomy or health, or to self-determination in medical decision-making

One possible approach that has received remarkably little attention is to insert a positive right to reproductive autonomy or reproductive health in the Constitution. This was never proposed to the Citizens Assembly, even though it exists in numerous constitutional orders around the world. Such a right would positively compel legislative change to ensure that autonomy was guaranteed during pregnancy (including labour) and, indeed, in relation to questions of becoming and staying pregnant. Such a right would ensure, thus, that the constitutional change ‘reaches’ the broader socio-legal implications of the 8th Amendment. It would also allow for the limitation of abortion access again provided that was done in pursuit of a legitimate aim (such as the preservation of foetal life) and in doing so only interfered proportionately with the right to reproductive autonomy/health as protected by the Constitution. In many ways, this option is both the least considered and the neatest approach to remedying the perceived difficulties with the 8th Amendment.

Repeal or replace?

Whether one favours repeal or replace very much depends (a) on how concerned one is about the uncertainty that might arise in the case of repeal, (b) what the wording of the proposed replacement is, and (c) how one interprets the political situation in which a referendum is likely to take place. If one is sufficiently concerned about the uncertainty that might arise, wants to propose something that they consider is likely to garner the support of much of the political class (which would then campaign for it, one assumes), would provide reasonably certain parameters for legislative action, and would enable the assertion of rights during pregnancy beyond abortion, then replacement with something like the ‘Nothing in this Constitution…’ provision would seem most likely to fit the bill. However, the gains are somewhat marginal when compared with a simple ‘repeal’ provision. The only question is whether the political establishment will (a) take a hyper-literal approach to the Assembly’s recommendation, and (b) be prepared to make the positive argument that express regulation of abortion law does not belong in the Constitution. As the Committee on the 8th Amendment prepares to finish its first module—on matters of constitutional design—tomorrow, the preliminary answers to these questions should begin to become clear.

Repeal or Replace?

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