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?”
In a decision that will not have come as a surprise to those who are attentive to either international human rights law or abortion law in Ireland, the UN Human Rights Committee has found that the applicant, AM’s, rights under the International Covenant on Civil and Political Rights were violated by her having to travel for an abortion in a situation of fatal foetal abnormality. The decision itself merits analysis, and the concurrence of Prof Sarah Cleveland is especially powerful. However, in this short post I want to assess the implications of this decision for constitutional politics in Ireland.
The government argued (as it has done before) that the Constitution reflects the will of the People on a question of moral significance and disagreement. This is summarized in para 4.2 of the opinion:
The State party asserts that article 40.3.3 of the Constitution represents the profound moral choices of the Irish people. Yet, at the same time, the Irish people have acknowledged the entitlement of citizens to travel to other jurisdictions for the purposes of obtaining terminations of pregnancy. The legislative framework guarantees the citizens’ entitlement to information in relation to abortion services provided abroad. Thus, the constitutional and legislative framework reflects the nuanced and proportionate approach to the considered views of the Irish Electorate on the profound moral question of the extent to which the right to life of the foetus should be protected and balanced against the rights of the woman.
Whether one agrees with this representation of what the various referenda in question actually say about the will of the people (and this is subject to dispute), the key point here—and the Committee made this quite clear—is that lawfulness in domestic law does not excuse, nullify, or even mitigate unlawfulness in international law. In other words, from an international law perspective, the fact that this is a constitutional position does not make any real difference to its acceptability. A violation of international law still arises, and it is one that the state is required as a matter of international law to resolve.
Here, of course, is where the fact that this is a constitutional (rather than a merely legislative) position does pose a challenge. In Ireland, as is well known, the Constitution can only be formally amended by a referendum of the People. Thus, if the Constitution does prohibit abortion in cases of fatal foetal abnormalities, and if that puts Ireland in violation of its international obligations, then a referendum is the appropriate vehicle to resolving that dispute.
This is tricky. Governments cannot guarantee that the conflict between the constitutional standard and the international standard will be resolved; they cannot copper fasten the outcome of the referendum. Where a referendum to ensure compatibility with international standards is unsuccessful, the state remains in violation although it can at least claim that reasonable efforts to resolve that violation have been made. In the absence of a referendum, however, no such claim can be made.
In fact, a failure to hold a referendum both torpedoes the claimed justification for the incompatibility and reveals an unwillingness to resolve that incompatibility. That is, unless a referendum is held to ensure the availability of abortion in cases of fatal foetal abnormality the state can neither justifiably claim that it is the will of the people to maintain a ban on such abortions notwithstanding incompatibility with international human rights law, nor claim to be hand-tied in terms of resolving that incompatibility.
Thus, if it really is the case that the 8th Amendment prohibits such abortions a referendum is unavoidable from an international law perspective. That is not because international law can force a state to hold a referendum, but rather because (a) the incompatibility flows from a constitutional provision, and (b) the only means of constitutional change is by referendum.
It is worth noting that it is not at all clear that Article 40.3.3 really does require the criminalisation of abortion in cases of fatal foetal abnormality. We know that the provision does not require any activities that are futile, and that the foetal right to life is both to be balanced against the right to life of the pregnant woman and protected only as far as practicable. It is quite within the capacity of the Government to amendment the Protection of Life During Pregnancy Act 2013 to allow for abortions in these cases, and allow the Supreme Court to assess the strength of the arguments in favour thereof from a constitutional law perspectives. Certainly, there would be difficulties with this—the Government would have to reverse its long-standing position, the Court would be asked to revisit a deeply contentious judgment (AG v X) and assess the extent to which it is a conclusive statement of the meaning of Article 40.3.3, and arguably the common understanding of the provision in question is that it does prohibit such abortions so that there would be a clear concern about subverting the Constitution. A referendum might, thus, be preferable.
But one thing is sure, this decision reinforces the position long-held by many: Article 40.3.3 is unsustainable, unsuitable, and incompatible with human rights. A referendum is urgently required.
This post is by Professor Fiona de Londras, University of Birmingham School of Law. She can be contacted by email at f.delondras[at]bham.ac.uk
Today the Labour Party became the second party to outline its plans for repeal of the 8th amendment and the possible legislation that would follow constitutional change (the first was the Green Party, whose proposals I analysed here). The proposals seem to have temporarily disappeared from the Labour page, but the Heads are uploaded here.
I must start this post by saying that, together with nine others (Mairead Enright, Vicky Convway, Mary Donnelly, Ruth Fletcher, Natalie McDonnell, Claire Murray, Sheelagh McGuinness, and Sorcha uí Chonnachtaigh) I was involved as an independent expert in the Labour Women Commission on Repeal of the 8th Amendment. This Commission comprised a political group, a medical group, and a legal group. Our job, as the legal group, was to propose a piece of law that might act as a “model” for post-amendment legislating, listening to the views of the medical experts and feeding into the political decision-making processes of the political group.
Our involvement did not mean that the political group would automatically endorse our proposals, or that the Labour Party’s policy objectives would determine our proposals. Inevitably, the context in which we undertook the task of drafting such a law informed our approach to it, and we explain the thinking behind our draft law here. The draft law itself was published open access here. As is clear from the analysis that follows, the final proposals from the Labour Party adopt some, but not all, of what we proposed (just as the Green Party proposal did), and we all remain at the disposal of other political parties to discuss the proposals as they (we hope) formulate their policies on abortion coming up the general election. Continue reading “The Labour Party #repealthe8th Proposals: An Analysis”
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 firstname.lastname@example.org.
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.