Cross posted from Human Rights in Ireland; reprinted in the Irish Times
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.
Professor Fiona de Londras 