Our regular contributor Mairead Enright spoke at the recent ‘Repeal the 8th’ conference in Dublin last Saturday. A video of her presentation is below. You can find other videos of the day (by Paula Geraghty) here.
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The effects of the 8th Amendment range far beyond abortion. The Amendment has come to have consequences for all cases of maternal-foetal conflict.
For example, it may be that prevailing interpretations of the constitution entail that:
- A living but unviable foetus (fatal foetal abnormality or inevitable miscarriage) can evidently assert the constitutional right to life against the mother, even at grave cost to the woman’s health.
- It may be that the unborn has a right to an opportunity to be born alive, such that doctors are required to
- attempt to sustain a second semester pregnancy until viability, even at grave cost to the mother’s mental and physical health.
- favour an attempted early live birth even where this is not in the best interests of woman or child.
- The mother’s consent to medical treatment – as an offshoot of her constitutional rights to privacy, dignity and bodily integrity – plays almost no constitutional role in cases of maternal/foetal conflict. Thus women can be subjected to treatment in the form of Caesarean section, induced labour and so on, without very much regard for their best interests, or their refusal of medical treatment. There is more than an echo of the past justification of symphysiotomy here.
There is no legislation or reported judgment, which adequately clarifies the law as it applies to any of these scenarios. Very little has been published to explain the ethical and legal underpinnings of likely treatment options. At the very least we should investigate opportunities for specific legislation on maternity care in cases of maternal-foetal conflict.
The presence of the 8th Amendment leads to the mischaracterization of certain medical issues which can occur during pregnancy as ‘abortion adjacent’, when they are nothing of the sort. The 8th Amendment requires us to misinterpret and misconstrue women’s valid treatment needs.
The 8th Amendment is poorly designed. It has strayed away from the people’s intention, and ground to a halt. When a constitutional provision becomes mechanically unworkable in this way, repeal and replacement are standard responses.
The 8th Amendment is an unusual constitutional provision because – through the Protection of Life During Pregnancy Act 2013 and practice guidelines for the medical professions – it is regularly interpreted and applied by agents other than the courts. Indeed, we might say that doctors are the primary interpreters of the 8th Amendment.
Over the course of thirty years, we would have expected the courts to flesh out the text of the Amendment much more than has already been done. However, the courts very rarely have the opportunity to consider the Amendment because it is often impossible for a pregnant woman – especially if she is ill or distressed – to bring her case to the superior courts in good time, and because it will be very difficult for her to assert standing before the courts if her pregnancy is already terminated. The criminalization of abortion poses another obstacle to the emergence of suitable litigation. Most of our constitutional jurisprudence on abortion derives from (i) cases brought by third parties such as S.P.U.C. and (ii) unusual cases of young women in the care of the state.
Because the courts so rarely have the chance to consider the 8th Amendment:
- Our abortion jurisprudence is very vague and very thin. The X case (which concerns a raped, suicidal, teenage girl in early pregnancy) has been stretched to apply to very different kinds of case.
- Doctors must guess at the application of the X case to a wide range of scenarios which have never been considered by any court.
- The 8th Amendment has fossilized. This is because doctors are not judges. They do not have the authority to develop new law. They have, naturally, been unduly cautious and the law has stagnated. The Supreme Court has repeatedly expressed that the Constitution should adapt to the developing needs of the people, but the 8th Amendment is no longer able to do so.
When a constitutional provision is placed beyond workable interpretation, we are entitled to remove that provision and start again. There are plenty of precedents for this course of action. For example:
- The 1992 referendum which secured the right to information and the right to travel was a response to judicial restriction of those rights by virtue of their interpretation of the 8th Amendment.
- The Citizenship referendum in 2003 was, in part, a response to judicial decision-making on the rights of Irish-born children whose parents were vulnerable to deportation.
- The recent children’s rights referendum was, in part, a response to judicial interpretations of the constitutional rights of the marital family.
- The forthcoming marriage equality referendum is designed to respond to difficulties with the interpretation of the constitutional provisions on marriage.
A Referendum on the 8th Amendment is an opportunity to bring the Constitution into line with prevailing social values around pregnant women’s medical care.
The Constitution is the place for broad statements of shared communal values, which guide the courts in their interpretation of the law, and in their development of constitutional rights. It is not the place for tests, rules and regulations.
If we remove the 8th Amendment, the right to life will remain, and it will be possible to maintain strong (but not unworkably absolute) standards of respect for unborn human life. In addition, it will be possible for certain of women’s constitutional rights, which have been limited by the 8th Amendment, to bloom in the gap it will leave. There is a strong argument for adding an expressly enumerated right to bodily integrity to the Constitution. The right already exists as an unenumerated right. Explicitly including it in the Constitution, in the context of a repeal of the 8th Amendment, would:
- Firmly guide the Courts in future cases of maternal-foetal conflict, and prevent the re-introduction of an 8th Amendment style interpretation ‘by the back door’.
- Incentivise the future development of human rights oriented medical practice in Ireland.