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. Continue reading “Repeal and 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? Continue reading “Repeal or Replace?”
This morning three members of the High Court are hearing an application from the parents of a woman in her mid-20s who, following a brain trauma, lies clinically dead in a midlands hospital and whose doctors have declined to turn off life support as she is pregnant. For these doctors (and, it now emerges, two other sets of doctors in recent years) there is simply no certainty as to whether they are permitted to turn off life support given the right to life of the foetus. This case highlights the extent to which the 8th Amendment permeates all medical decision-making relating to the care of pregnant women.
By granting a constitutionally protected right to life to the unborn foetus, the Constitution has embedded a ‘two patient’ approach that, where the pregnant woman is effectively deceased but the foetus is not, inevitably morphs into a ‘one patient’ approach. This one patient, however, is dependent for life on the body of the deceased woman and thus questions of difficult and harrowing proportions arise.
At issue, in this case, is not a classical Article 40.3.3 ‘competition’ of the right to life of the pregnant woman versus the right to life of the foetus. Sadly, without constant intervention, the pregnant woman in this case cannot and will not continue to breath. Rather, the primary conflict of rights is between the pregnant woman’s right to die a natural death (recognised in Re A Ward of Court (No 2)), privacy and bodily integrity on the one hand, and the right to life of the unborn foetus on the other.
In that same case, Denham J. (as she then was) characterised the right to life as the pre-eminent personal right, but of course this does not mean that it always and inevitably acts as an absolute trump. Rather, the Court must decide whether sustaining the pregnant woman’s lie artificially is ‘practicable’; after all, what Article 40.3.3 provides is that the state “guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right” (emphasis added). One important question for the High Court today, then, will be whether or not sustaining life for the amount of time required to vindicate the right to life of the foetus is practicable. In this respect, medical evidence as to the point at which delivery would be safe will be important. Whether or not the Court takes into account the statistical likelihood of survival and statistical likelihood of severe disability to help to determine the point of appropriate intervention (barring any medical emergencies in the meantime) will be especially interesting, but these certainly seem to me to be important elements in determining practicability.
Questions of proportionality are also likely to arise and to be influenced by these considerations as to medical practice. Even if the right to life is a pre-eminient right, the Court will surely ask whether the interferences with the woman’s constitutional rights in order to vindicate the foetal right to life are proportionate. The question of proportionality will come down, in all likelihood, to a determination of the extent of the interference which implicates matters of how long her life will have to be sustained considered by reference to the likelihood of optimal health outcomes for the foetus.
In short, the High Court today (and, perhaps, the Supreme Court on appeal tomorrow) will have to make a decision as to just how long a hand the 8th Amendment reaches into medical care in this country. It is clear that this is not a case that is governed by the Protection of Life During Pregnancy Act 2013. That Act deals only with situations in which there is a risk to the life of a pregnant woman that might be averted through abortion. This is clearly not such a case. However, the 8th Amendment is far broader than abortion, whatever its original intended reach might have been. The fact that medical professionals have felt utterly unable to make a medical decision to cease life support, with the support of the patient’s family, because of the legal uncertainty that surrounds the life of a foetus which is at such an early point of gestation as to be far from viable sharply illustrates the consequences of having constitutionalised the ban of abortion through the use of such far-reaching language.
On this blog Máiréad Enright has previously cautioned against describing cases arising under the 8th Amendment as tragic. In her words,
‘Tragedy’ is often a word we use to signal detachment, from exceptional and rare suffering brought about by fate – events that we can only gawp at from a distance. But this particular set of circumstances is, in an important sense, the product of a constitutional amendment which was never fit even for its proponents’ purpose, and which has been punishing women for far too long.
This case is difficult. It is sad. It is harrowing. But it is not a tragedy. It is a product of a constitutional amendment that is unsustainable, unliveable and in urgent need of repeal.
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.
To join Lawyers for Choice, email email@example.com.
To write to your TD on the issue see here.
To sign the Repeal the 8th petition see here.
For details of the March for Choice see here.
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.
The following is the text of a letter written by a number of regular HRinI contributors and signed by over 100 academics, which was published in the Irish Times today (full list of signators only available online). Here we have added a number of additional signatures received after the letter went to press. Others who wish to express their desire for a referendum to repeal the 8th Amendment to the Constitution should sign the petition organised by the Abortion Rights Campaign here.
We are people in or from Ireland. We are under the age of 50. We could not vote in the 1983 abortion referendum which profoundly limited women’s autonomy. No subsequent referendum has provided an opportunity to undo that damage. Many of us have lived our whole lives under an abortion regime in which we have had no say. As a generation we have grown up knowing that the State would compel us to travel if we wished to exercise substantive control over our reproductive lives. Continue reading “Time for Our Referendum”