Reforming Abortion Law in Ireland: A Model

feminists_at_law_logo_0In the second half of 2014 Labour Women established a Commission on Repeal of the 8th Amendment, i.e. the provision of the Irish Constitution that protects “the right to life of the unborn” and has been used to sharply restrict the availability of abortion in Ireland. I was one of the legal experts in the Commission and, in that role, I worked with nine other feminist lawyers: Mairead EnrightVicky ConwayMary DonnellyRuth FletcherNatalie McDonnellSheelagh McGuinnessClaire MurraySinead Ring and Sorcha Ui Chonnachtaigh. We produced a draft structure and content for legislation that aimed to take into account the constraints within which we were working, political realities, and standards outlined in international human rights law.

The model draft legislation is the Access to Abortion Bill 2015, which has now been published with an introductory paper by the open-access journal feminists@law. The Bill is not Labour Party or Labour Women policy.

Here is the abstract of the introductory paper:

Ireland has some of the most restrictive abortion laws in the world. Abortion has been criminalised since 1861, and the passage of the 8th Amendment in 1983 introduced ‘the right to life of the unborn’ into the Constitution. The effects of the 8th Amendment are felt on a daily basis by women leaving Ireland for abortion, by pregnant women receiving maternal care, by doctors caring for pregnant women, and by lawyers working for the health service. As predicted by the then-Attorney General Peter Sutherland at the time of the referendum, the 8th Amendment has introduced an uncertain and practically unusable position to Irish law. It has, simply put, become “unliveable”.

In late 2014 Labour Women, a branch of the Irish Labour Party, established a Commission for Repeal of the 8th Amendment. That Commission comprised three groups: a political group, a medical group, and a group of legal experts. The authors of this paper are those legal experts. In this paper, we first outline the legal status quo as regards abortion in Ireland before making a case for constitutional reform. Having established the desirability of, and need for, constitutional reform we then outline the working principles that informed our drafting of the accompanying Access to Abortion Bill 2015, bearing in mind our intention to craft a model for reform that would be workable from the perspective of women’s lives, medical practice, and politics. Although drafted as part of the Labour Women Commission, and with some (limited) input from the other Commission groups, the proposed draft is that of the authors of this paper (working within the confines of our remit as ‘legal experts’ to the Commission) and not of the Labour Party or of Labour Women. It is made available here for discussion, debate and development by all interested parties.

In designing the draft legislation we were guided by a number of core principles, which are elaborated on in the introductory paper. These were

  1. A commitment to designing a framework for regulating abortion in Ireland by primary reference to the bodily integrity, welfare, agency, autonomy and self-determination of pregnant women, while still recognising a public interest in preserving foetal life where possible, with the pregnant woman’s consent.
  2. Proposing grounds for access to abortion that go beyond the current mainstream political consensus
  3. Replacing the current pro-natalist approach with a welfare-based approach that recognises pregnant women as patients and abortion as a medical procedure
  4. Ensuring effective availability of abortion in practice

We have published this draft bill and the accompanying paper in an open-access journal in order to encourage and invite discussion and debate, as well as its development by any and all interested parties.

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