Replace v Repeal and the Politics of Legal Certainty

Mairead Enright @maireadenright

The Oireachtas Committee on Repeal of the 8th Amendment met publicly yesterday for the first time. Ms. Justice Laffoy presented the report of the Citizens’ Assembly, and took questions on its content. The media, in reporting on the Committee’s proceedings, have focused on Laffoy’s efforts to defend the legitimacy of the Assembly process. In doing so, they have missed a crucial aspect of yesterday’s exchanges: the focus on ‘legal certainty’. As is well known by now, the Assembly recommended replacement of the 8th Amendment, rather than simple repeal. They explicitly voted against replacing the 8th Amendment with another clause expressly dealing with abortion or with the balance to be struck between the rights of the pregnant person and the foetus they are carrying. They recommended a different kind of replacement. Yesterday was an opportunity to clarify why the Assembly had departed from the clear and readily-comprehensible legal and political demand articulated by the Repeal campaign, and to discuss the substance of what they had proposed instead.

The Report of the Citizens’ Assembly is ambiguous on this point. It explains that the Citizens were concerned that Repeal simpliciter would generate an unacceptable measure of constitutional uncertainty, around the rights of ‘the unborn’ in particular. Brian Murray SC, in a perhaps uniquely influential presentation to the Assembly, had set out three possible consequences of Repeal. A future Supreme Court, dealing with a challenge to post-repeal abortion legislation could come to one of 3 broad positions:

  1. The Oireachtas would have total freedom to legislate on abortion as it chooses.
  2. The Oireachtas would be constrained in some way by the implied rights of the unborn, which pre-existed the passage of the 8th Amendment, and which would survive repeal.[1]
  3. The Oireachtas would be constrained in some way by the implied rights of the pregnant person (not only to life, but to bodily integrity, privacy, freedom of conscience and so on) which pre-existed the passage of the 8th Amendment, and which would survive repeal.[2]

In Questions and Answers later, Brian Murray confirmed that he thought that Option 1 was the most likely outcome of repeal. In view of the deference which the courts habitually show to the legislature, especially on ‘contested moral issues’, this was sound advice. However, the Assembly process did not stop at ‘most likely’. Yesterday, Laffoy J confirmed that, in voting for Replace, the Assembly effectively voted to copper-fasten Option 1 as the only possible outcome of removing the 8th Amendment. They were concerned that the consequences for future abortion legislation of Options 2 and 3 (which could be understood as reverting to the pre-1983 position) were too unpredictable. It was not possible to say with precision which constraints the implied rights of the woman and the unborn might place on legislation.

Neither Option 2 nor Option 3, in principle, precludes more liberal abortion legislation, because protection of foetal life, whatever form it takes in the constitution after repeal, will not be absolute. In addition, as is hinted at in Brian Murray’s paper, Options 2 and 3 are not really separate options. A Supreme Court would not have to choose between either the rights of the unborn or those of the mother. These rights should be read harmoniously, and ideally relationally, together. The Supreme Court (and indeed, every other body charged with interpreting the Constitution, including the Oireachtas itself) would have to decide on the appropriate balance to strike between them. Courts in Portugal, Germany, Colombia, Canada and the United States have all engaged in similar balancing acts. It is not possible, of course, to say with precision how the Irish Supreme Court would evaluate abortion legislation under Option 2, Option 3, or some combination of the two. We don’t yet know what post-repeal abortion legislation would say. We don’t yet know who, if anyone, would bring the case to challenge it, or whether it would be examined in an Article 26 reference. So we don’t know what fact pattern the Court would have before it. However, that level of uncertainty is quite ordinary in a constitutional context. The difficulty it creates has been over-stated. For the purposes of legislative reform, we can still make judgment calls about likely outcomes, based on prevailing jurisprudence, precedent and working knowledge of judicial reasoning and conventions. It would have been possible for the Assembly’s experts to give the members time to think about what possible ‘balances of rights’ look like, and to establish the sort of working tolerance of uncertainty that characterises the working lives of constitutional lawyers and the judiciary. However, at no stage was the Assembly given detailed information on how courts in other jurisdictions have engaged in such ‘balancing acts’, or given the opportunity to apply the outlines of a post-repeal constitution to real-life problems or case studies. No such steps were taken to empower the Assembly by grounding abstract constitutional questions in concrete cases. All of these questions were black-boxed, and the black box labelled ‘Legal Uncertainty’.

It is worth pointing out at this stage that Options 2 and 3 can be read as returns to the pre-1983 position (although we could expect, of course, that a Supreme Court deciding a case in 2018 would take account of the enormous social changes that have taken place in Ireland since 1983, and interpret and balance the competing constitutional rights accordingly.) Options 2 and 3, or some combination thereof, represent the post-McGee constitutional position which PLAC, William Binchy and other supporters of the 8th sought to de-commission when they agitated for constitutional reform in 1983. In 1983, some combination of Options 2 and 3 was the anti-amendment, pro-choice status quo. Of course, in seeking to close off Options 2 and 3, the Assembly was not aligning itself with those movements. Rather, as we can deduce from its later, liberal, legislative recommendations, the Assembly wanted to preserve space for pro-choice law-making in line with European norms. Replace is intended to defend that space in ways that, as the majority of Assembly members saw it, Repeal could not.

Yesterday Ms Justice Laffoy was asked five times, in various ways, to justify the recommendation to Replace rather than Repeal, and to explain what additional advantages Replace might confer on our constitutional structures. Was Replace simply, as Ailbhe Smyth has observed, “the Irish for Repeal”: a replacement which removed the 8th Amendment and confirmed the Oireachtas’ existing ordinary power to pass legislation which attracts a presumption of constitutionality? Or did Replace promise another level of security? The Assembly report, rather confusingly, suggested that replace would confer ‘exclusive’ authority on the Oireachtas to legislate for abortion, and to exert ‘total control’ over its regulation. Similar language was used during the Assembly proceedings to reassure members of the Assembly who were uncertain about what they had voted for. ‘Exclusive’ and ‘total’ might have suggested that Replace would somehow (in an unprecedented move) immunize any new abortion legislation from constitutional challenge in the courts (perhaps a fine outcome if you ignore the potential for unintended consequences and imagine that the Oireachtas will pass workable legislation…but a less enticing one if you imagine that it will produce something along the lines of the PLDPA 2013, replete with opportunities for exposing pregnant people to inhuman and degrading treatment).[3] Yesterday Ms Justice Laffoy confirmed that the Assembly in voting Replace was not suggesting that the constitution should be amended to exclude the courts from law-making around abortion. The rights of pregnant people seeking to terminate a pregnancy should not be cast out of the sphere of constitutional interpretation.

So what does Replace do to achieve additional certainty? Ms Justice Laffoy was asked five times. Besides saying that it was important that the Oireachtas do its utmost to create legislation which would pass constitutional muster and not be struck down within ‘weeks’, she could not offer further clarity. She encouraged the Committee to get legal advice on the issue, and expressed her hope that their deliberations would confer ‘legal certainty’ on the abortion problem. I am not suggesting that the Assembly’s role was to draft a replacement for the 8th Amendment, but at the very least its Chair should have been able to explain what the constitutional amendment it proposed means in broad constitutional terms. At the end of yesterday’s questioning, it seemed clear that there was no material legal difference between Replace and Repeal, and no justification for adding new text to the constitution. It may be, certainly, that additional text in the constitution re-affirming the Oireachtas’ ordinary legislative power could help to block any judicial attempt to strike down new legislation, but it is hard to quantify the strategic value of that additional text over and above simple repeal. It is also telling that this form of Replace was offered to the Assembly – Brian Murray also suggested a possible substantive amendment removing the right to life of the unborn from the Constitution.Time could have been given to pro-choice substantive amendments, but instead, consistent with the Assembly’s official aspiration to neutrality, a technical substitute was chosen.

Now, we can read Replace differently, not as a message from the Assembly to the courts, but as a message from the Assembly to the Oireachtas. Arguably one of the chief chilling influences on abortion law reform in Ireland has been governments’, and successive AGs’, own interpretations of the constitution – we have seen this most clearly in the Oireachtas’ repeated refusal to legislate to open up access to abortion in cases of fatal foetal abnormality. The Assembly wanted to send a clear message to the Oireachtas that it should not seek to hide behind restrictive constitutional interpretation; using it as an excuse to reject passing legislation along the lines the Assembly had recommended. But there is no constitutional formula that can compel the Oireachtas to legislate in any particular way. Abortion law reform is now, as always, at the Oireachtas’ door, and technocratic and alienating discussion of ‘legal certainty’ and silver bullet constitutional devices, however entertaining it is for constitutional scholars, only serves to distract from that political issue.

I think Replace – a white elephant with magical affective powers but no particular legal contribution to make – is a symptom of a broader deficiency in Irish legal discourse around abortion. ‘Legal certainty’ has become a motivating idea in Irish abortion law reform because it neatly combines a framing of women’s bodies as uniquely chaotic, with a promise that the right formula of words can bring that chaos under control. In this sense, it is no accident that a judge was considered the ‘appropriate woman’ to lead ‘us’ through the abortion law reform process. We have relied on her, and on other judges – notably Yvonne Murphy and Maureen Harding-Clarke – to bring ‘closure’ to other disputes around women’s bodies in historical cases of abuse and bodily harm. It may be, in the end, that the primary function of Replace was to provide symbolic closure, and in particular, to suggest a level of careful contemplation of constitutional technicalities which distinguishes the ‘reasoned’, balanced, ‘informed’ and ‘civil’ deliberations of the Assembly from stereotypes of the pro-choice movement.

For the Assembly members, ‘legal certainty’ is a pro-choice idea – a brake on the Oireachtas’ historical and embedded cowardice. However, their Replace proposal is too vulnerable to an impossible politics of legal certainty. It is at risk of co-option – of becoming, as it did during the PLDPA debates, a proxy for more conservative desires. When a TD says ‘legal certainty’ he may be expressing solidarity with doctors who profess themselves to be afraid of criminalisation. He may be expressing a weary desire to ‘future proof’ the constitution so that he will never to have to talk about abortion again between now and retirement. He may be expressing a refusal to ‘trust women’; a horror of ‘abortion on demand’. If these inarticulate desires, gathered under the rubric of ‘legal certainty’ become the golden thread connecting the Committee’s constitutional and legislative discussions then the Oireachtas will struggle to produce decent, workable legislation. Instead, it must do as the Assembly’s hard-working and sincere members tried to do despite the shortcomings of its process; to come down out of the realm of constitutional abstraction and think about ‘legal certainty’ as concomitant with legislative freedom and responsibility. Unlike the Assembly, the Oireachtas Committee is willing to hear testimony from expert reproductive rights lawyers. There is finally space to think about ‘legal certainty’ as a feminist value; one affirming pregnant people’s rights to access abortion and other medical treatment in pregnancy in a transparent, secure manner, using processes supportive of their decisional autonomy. There is a chance to avoid subjecting pregnant people to the sort of opaque, incoherent and unsettling governing legislation we passed last time out. We can only hope the Oireachtas is ready to take it.

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[1] No consideration was given to the locus standii of the unborn, which presents a real danger to liberal abortion legislation.

[2] This option could, of course, have leant persuasive, if not determinative weight, if the 8th were replaced with a positive right to self-determination in pregnancy. This possibility was not discussed with Assembly members. Instead discussion of bodily autonomy was relegated to the Assembly report’s ancillary recommendations.

[3] We could find an analogy for this sort of effort in the failed Twenty-Fifth Amendment to the Constitution in 2002, which would have enshrined abortion legislation in the Constitution and made it impossible to change without a new referendum – indeed Ms. Justice Laffoy mentioned this briefly yesterday.

Replace v Repeal and the Politics of Legal Certainty

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