In the run-up to the Citizens’ Assembly deliberations on abortion, there was a lot of discussion on the possibility of a ‘compromise’ or ‘moderate’ solution. Many envisaged (and feared) that instead of recommending outright repeal of the Eighth amendment, the assembly would instead recommend inserting a replacement clause that would permit slightly less restrictive abortion laws, but still enshrine specific, limited grounds for abortion. Indeed, such a supposedly moderate position was probably contemplated by the government as something that a mythical ‘middle Ireland’ might accept. Along with many others, I was adamant that it was a terrible idea to enshrine abortion restrictions of any kind at the constitutional level. This would have the effect of copperfastening a potentially oppressive regime for another generation.
And so the early debate was dominated by the question of ‘repeal versus replace’. Ultimately many of us were surprised that the Assembly deliberations unfolded along very different lines. In the first place, the Assembly clearly rejected the idea of inserting any revised abortion restrictions within the Constitution itself, partly because the majority rejected such restrictions, bar time limits, full stop. However, it also declined to recommend straightforward deletion of the Eighth amendment, which has essentially been the demand of the prochoice movement to date. Instead, it seems to have been influenced by the view that the revised text of the Constitution, minus the ‘eighth’, could still be interpreted as including residual rights for the ‘unborn’, and that this could be used to challenge liberalizing legislation of the kind it recommended. Therefore, it recommended inserting a new constitutional clause which, in the working of the Assembly report, would clarify that it is ‘solely’ within the power of the Oireachtas to legislate on ‘any rights of the unborn’ and ‘any rights of the pregnant woman’.
It seems this was intended to remove any lingering uncertainty over the constitutionality of liberalizing legislation. It isn’t quite clear, however, whether or not it would categorically rule out any constitutional challenges against such legislation, or simply reaffirm (and possibly strengthen) a sphere of discretion that the Oireachtas already has. That will depend on the ultimate wording of the amendment as decided by the Oireachtas.
What I want to address here is whether or not the prochoice movement should support this step, as against straightforward repeal. There is a risk, at the outset, that the Assembly recommendation might be interpreted as a ‘compromise’ on the repeal demand, and that going along with this is some kind of capitulation to the narrative of ‘moderation’, and so on. The risk of confusion is heightened because of the language of ‘replace’ – we always thought ‘replace’ would be a disastrous attempt at triangulation and leave us with something only slightly less oppressive than the existing regime. But we should be clear that what is proposed is still effectively ‘repeal’. It does not acknowledge or mandate any specific restrictions on abortion whatsoever.
Instead, it seems that the proposed new clause was intended as helping to secure or safeguard the substantial aims of the repeal movement –that is, of ultimately ensuring that legislation respecting bodily autonomy is put in place and sustainably maintained. The question worth addressing here is whether such a move is a necessary and effective way of achieving this.
My HRinI colleague, Mairead Enright, recently expressed a sceptical view on this move. In particular, she argues the following (this is my summary of her article):
- The risk of constitutional uncertainty after straightforward repeal is overstated.
- The suggested clause might prevent ‘prolife’ constitutional challenges to liberalizing legislation, but equally it may prevent prochoice challenges against any oppressive legislation as well.
- Therefore, exceptionalising abortion law in this way – taking it out of the domain of constitutional law – is unjustified in general and is motivated by a misguided concern for ‘legal certainty’ .
I agree with some of this, and disagree with other parts. I agree that the risk of residual uncertainty in the Constitution, minus the eighth, is probably overstated by contributions such as Brian Murray’s presentation to the Assembly (which appears to have been particularly influential). It’s hard to overstate the degree of deference the Courts have, in recent decades, shown to the Oireachtas when it comes to controversial or ‘sensitive’ social issues. Various senior judges have said that it is up to the Oireachtas in the first instance to decide how constitutional rights are protected and how they are balanced against each other, and that the courts’ function is only to intervene where the balance is disproportionate – not to impose its own view. Also, the post-repeal Constitution would more than likely be read in light of the assumed ‘intention’ of the voters (an approach taken in Roche v Roche), meaning that the Courts would accept the people had intended to constitutionally permit abortion. In other words, notwithstanding the identical nature of the (relevant) text, the post-2018 Constitution would differ in meaning form the pre-1983 version because of that changed historical-political context.
However, on the remaining points I disagree. The fact that Brian Murray might be wrong, or that he overstated the uncertainty involved, is besides the point. His paper is probably a close reflection of what most lawyers and judges might think and say on the topic, and that is ultimately what will determine the constitutional narrative post-repeal. The problem is this: we may still face a situation where continuing constitutional arguments are overhanging the legislative process post-repeal, and we need to anticipate the likely political effects of that. Various narratives about what the Constitution means or might mean will have the capacity to affect or influence the shape of any eventual legislation, whether immediately in the aftermath of repeal of further in the future. Constitutional argument may well have a ‘chilling effect’, if you will excuse the terrible cliché. And crucially, the wording of any replacement text might control or limit the extent of that chilling effect. And it’s in those terms, I think, that we should be debating the merits of any possible wording.
When people consider the likely effects of constitutional principles, they tend to think in terms of what courts might do – whether or not they are likely to actually strike down legislation based on particular readings of constitutional law. But that is a very limited way of understanding constitutional law. The danger isn’t necessarily that judges will curtail progressive abortion laws – although it’s possible – instead, it lies in the various ways in which constitutional arguments are weaponised completely outside of the judicial process.
The authoritiatve constitutional narrative – that is, authoritative narratives about what the Constitution means and what it requires, are not only shaped by judges and lawyers arguing in courts. They are also made, sometimes to great effect, within the political and legislative process itself, and particularly by the office of the Attorney General. In essence, the Attorney General has the ability to influence the legislative process through readings and interpretations of constitutional law which although not theoretically binding, carry a certain authority in a real sense.
And this has a stultifying, conservative effect. We very often encounter situations in Irish politics where very contestable readings of constitutional law are invoked, usually by the Government, to resist modestly progressive legislative reforms. We see this effect in areas like equality law, which is constitutionally limited by religious freedom, in housing reform, which is constitutionally limited by property rights, and in school admissions law, which is limited by the constitutional rights of religious denominations – and so on. Many people understand that constitutional case law can have both negative and positive effects, that is, it can overturn both good laws or bad laws. Constitutional-rights law is not intrinsically a good thing; it is only good insofar as it procures good outcomes, whatever that might mean. But the negative effects of constitutional law are not confined to bad judgments. Instead, we must account for the various ways in which constitutional law structures and disciplines political argument and determines the range of legitimate inputs – and particularly how it empowers experts, disarms the ‘lay’ interlocutor, and leads to a kind of mystification by framing politically issues in esoteric legal terms. It generally entails a kind of expert mystification of political conflict. A vast plethora of social issues can be framed as something like a ‘conflict of constitutional rights’, at which point the issue purports to pass from the political into the legal domain, and the social and political authority of lawyers is enhanced.
That style of legal argument is, in my view, intellectually bogus. There isn’t really any legally ‘correct’ answer as to what the Constitution means in many instances – there are multiple possible interpretations that are potentially authoritative or persuasive depending on context and so on. There is no scientific truth in the matter, accessible to trained experts, which is how law is often depicted. But the fact that this is true is besides the point, because what matters is that this style of constitutional argumentation is weaponised very effectively in our politics. It carries a very definite institutional and social authority – we should take this effect seriously
If we have the chance, then, should we not try to take such issues outside the mystifying, esoteric world of constitutional discourse – a strange world where experts conduct an intellectual pleasing, but politically sterile exercise in exchanging rival interpretations that are deeply political and ideological but are supposed to carry some kind of special authority? I think that is what the recommendation of the Assembly is getting at – it’s an attempt to remove the issue of abortion rights out of the shadowy, obscure world of constitutional argumentation. My starting assumption is that that aim is a good one.
It might be objected that there is potentially a competing prochoice constitutional narrative, based on the privacy and autonomy rights of pregnant women, that could be invoked against restrictive or oppressive legislation, and that neutralizing the Constitution in the manner proposed squanders that opportunity. Why not accept the reality of constitutional ambiguity, but try to harness and instrumentalise it for prochoice ends? Unfortunately, I think, that kind of argument is attractive in the abstract but is unlikely to bear any fruit in the legal and political landscape that we actually inhabit. As much as liberal lawyers might relish the challenge, few people who are familiar with the workings and outlook of the Irish Supreme Court will realistically expect an Irish-style Roe v Wade any time soon. The legal and judicial world is a fairly conservative place. It is an unlikely source for radical social and political change, despite the limited phase of liberal activism that occurred in the 1960s and 1970s, and whose effects are romantically overstated. On the whole, judicial review tends to have a status quo bias and at best, only mitigates the worst elements of social justice while tending more fundamentally to shore up the legitimacy of the social order. Mairead Enright’s piece hints that there is something disturbing about excluding a particular category of legislation from constitutional challenge. I don’t agree with this, because I don’t believe that having access to a judge who can review the constitutionality of parliamentary legislation is an instrinsic hallmark of freedom or democracy or whatever. It can have good or bad effects depending on context – remember, the wealthy and powerful have constitutional rights too, and are good at enforcing them. Its overall net effects in any society are always a little unclear – I believe that in this society the net effect is a conservative one, for reasons I explain here.
For these reasons, the question of whether we exclude abortion laws from constitutional challenge should be approached on a purely tactical basis, not based on its intrinsic rightness or wrongness. I could be wrong about where the balance of risk lies, tactically speaking, but we should dispense with myths about the intrinsic importance of judicial review as such.
Having said that, it is still unclear whether the assemble recommendation actually intends to exclude constitutional challenge post-repeal, or simply reaffirm and possibly strengthen the sphere of discretion the Oireachtas would ordinarily enjoy in any event. For what it’s worth, I would be wary of the political effects of fully excluding judicial review, simply because this might create an appearance of giving politicians carte blanche or leaving them unchecked. It creates a political risk that is better off avoided. On the other hand, the wording of the assembly report is unfortunate in referring (unnecessarily) to ‘any rights of the unborn’, which (if used in the actual amendment), might have the (probably unintended) effect of indirectly re-enshrining foetal rights albeit in a lesser form. Instead, I think, we should aim at a wording that neither categorically excludes constitutional challenges to legislation, nor refers to foetal rights, but still stems any possible weaponsiation of constitutional doubts post-repeal. A wording along the following lines would probably achieve that effect: Nothing in this Constitution shall be interpreted as precluding termination of pregnancy as provided for by law.