An Abortion Law Immune from Constitutional Review?

This is cross-posted from 

In yesterday’s hearing of the Committee on the 8th Amendment to the Constitution talk turned to the idea that a new constitutional provision might be crafted and introduced which would provide that any law on abortion would be immune from constitutional challenge. In his presentation to the Committee, David Kenny made it clear that this was what he took the Citizens’ Assembly to have meant by its recommendation. In my evidence I posited a different interpretation, namely “as a proposal designed to make explicit the power to legislate for abortion to the extent recommended in the legislative proposals made by the Assembly”. On reflection, either understanding is probably sustainable. Reading the transcripts of the Assembly again, I still consider that the concern with ensuring the Oireachtas had “exclusive” competence to make law for abortion was intended to ensure absolute clarity about the power to legislate for the issue, but it could also be interpreted as saying that in doing so the Oireachtas should be empowered to make a law that would be immune from constitutional review. If the latter interpretation were pursued, would this be desirable and what would be the implications?

What would it mean?

To immunise abortion law from constitutional review would mean, in practical terms, that the Oireachtas could make legislation through the ordinary political process and that this legislation could not be struck down by the Courts; they simply would not have the competence to consider questions of its constitutionality.

Were the Oireachtas so minded, it could change the legislation through the ordinary process in the future. In that way this is preferable to entrenching legislation in the Constitution (as was proposed in 2002) where even a technical change couldn’t be made without a referendum. However, it would mean that if a pregnant person considered that her constitutional rights to, for example, privacy or bodily integrity entitled her to access abortion in a situation not provided for in legislation she could not go to the courts to vindicate her rights. Similarly, someone who considered the legislation to violate foetal rights, or tried to establish foetal rights in respect of abortion, could not mount a constitutional challenge.

It would, in short, require us to put complete faith in the Oireachtas to legislate in a manner that balanced interests, vindicated women’s and pregnant persons’ rights, and was rational and proportionate.

Why might this be considered a good idea?

The attractiveness of this approach is largely that it seems like a means of managing uncertainty.

Legal certainty has been a recurring theme in conversations on the 8th Amendment in recent weeks and months, and Máiréad Enright dissects the issue excellently here. The real issue is that nobody can say with absolute certainty whether foetal constitutional rights would survive a repeal of the 8th Amendment and, if so, what (if any) scope for legislating for abortion access the Oireachtas would have. In reality, even if constitutional foetal rights were recognised, there would still be scope for abortion legislation to be introduced. Even in Germany, where the Constitutional Court has recognised a prenatal right to life, abortion on request within the first trimester is constitutionally permissible, although pre-abortion counselling is mandatory. The Constitutional Court has found that the requirements imposed to access abortion, as well as the time limit, are sufficient to vindicate foetal constitutional rights. There is no reason why such an outcome might not also be possible in Ireland.

Similarly it might be considered that the foetus has no constitutional rights and the pregnant person has an unlimited right to access abortion so that no restrictions at all would be permissible. That is also unlikely, not least because the relevant rights (privacy, bodily integrity and so on) are not absolute; they can be limited in pursuit of a reasonable objective but the limitations cannot be irrational or disproportionate. This is more or less the approach taken in lots of states where the constitution is silent about abortion (e.g. the ‘undue burden’ approach in the USA) and even in some places where the Constitution acknowledges that prenatal life is worthy of protection (e.g. the Slovak Republic).

In spite of how unlikely these outcomes are, they are still a worry. The reason should be clear. Imagine a situation in which there is a referendum, the referendum is passed, the Oireachtas passes law (and there is little doubt that would be a very difficult and charged process), and then the Supreme Court strikes the law down. Where would that leave abortion availability in Ireland? Would the political process start again? Or would medics, public authorities, and pregnant persons in Ireland flounder in a sea of complete practical uncertainty?

The anxiety that this eventuality causes—particularly among politicians who experience intense pressure in respect of abortion—is understandable. While the possibility of undue uncertainty arising is fairly modest in real terms, this simply might not be a risk people (or politicians) are willing to take. The argument goes that immunising legislation from constitutional review would resolve that: the Courts would not have the competence to strike the law down no matter what it said, and so there would be certainty (or, maybe, stability is a better word) and politics alone would determine the content of abortion law.

Why might it be a poor idea?

David Kenny rightly noted that a small number of things are already immunised from constitutional review in Ireland so we know that such an approach is legally permissible. Bernard Durkan TD yesterday implied that it might not be politically possible, but that is a somewhat separate question. However, what is possible is not necessarily desirable. There are at least two reasons why this approach might be a poor idea.

First, as a matter of principle the ordinary or default position is that the legislature makes law, is required to make law that is constitutional, and is ‘checked’ in that by the judiciary. To depart from that general position must, it seems to me, have a compelling rationale. In the course in the evidence before the Committee yesterday Kenny noted that judicial intervention on abortion has caused great controversy elsewhere, and no doubt that is true. But judicial intervention in lots of areas causes controversy: consider findings that statutory rape was unconstitutionally defined, or that asylum seekers have a right to seek employment. These are hardly uncontroversial issues or interventions.

In some other areas we immunise for reasons of institutional self-organisation (e.g. some matters relating to process in parliament) or emergency management; here it is simply considered that there is a superior institutional capacity in the Oireachtas and/or the Executive because of either the nature of the issue or the context in which decisions are being taken. It is difficult to see why legislating for abortion should fall into this kind of category.

Of course, abortion is an emotive and difficult issue for many, and I have no doubt many law makers struggle to reconcile their personal views with their duty to represent their constituents, and to pursue the common good while fulfilling their constitutional duty to vindicate individual rights. ‘Getting it wrong’ on abortion also has serious potential consequences: either an abortion law regime that is much more extensive than was intended, or the enforcement of severe limitations on the autonomy on pregnant persons. However, every day legislators, ministers and regulators make decisions that have life and death implications, that increase or dramatically reduce people’s material well being: drug funding schemes for the HSE, housing budgets, child benefit, elder care, rules of asylum and so on. These are also serious and morally difficult questions: how do we balance out and prioritise multiple claims on limited means, all of which have to do with basic well being and may cause severe suffering if misjudged? To immunise abortion from constitutional review suggests that it is uniquely or particularly difficult so that the Oireachtas has a particular competence (institutional or topical), or that the context is such that judicial intervention ought not to be facilitated. In the very best of faith, I fail to see what that justification would be.

Second, it would cut out an important avenue for asserting legal rights. At the moment we accept that sometimes the Oireachtas might misjudge where the constitutional limits lie, although usually they don’t and we start from a presumption of constitutionality. However, if we think that the state is acting unconstitutionally we have a mechanism to assert that claim, get a definitive assessment, and then secure a remedy. That mechanism is constitutional review before the courts. Removing that mechanism means that there would be no way to assert a constitutional misjudgement at the national (i.e. ‘domestic’) level except through politics. Rather than engage the courts, people would need to make their cases exclusively through lobbying, advocacy, voting, and the threat of removing politicians who we considered disregarded our rights and interests. This might succeed in bringing about legislative change, but it does nothing to recognise or remedy constitutional wrongs.

Should abortion legislation be immunised from judicial review following a referendum the Oireachtas could pass a law prohibiting abortion in all cases and it could not be challenged; nor could a law allowing abortion on request up to term. Neither of these is a realistic prospect, but they serve to illustrate the point I am making here: constitutional rights could be overridden, violated, and disproportionately limited and there would be nothing that a person could do about that.

Those persons would be almost exclusively women, of course. While they might be able to appeal to international human rights courts and institutions to assert their internationally protected rights, and to Irish courts under the ECHR Act 2003 to assert their Convention rights, their constitutional rights would be unenforceable. That is a rather extraordinary proposition.


In conclusion:

  • Immunisation from constitutional review is not the inevitable interpretation of the Citizens Assembly recommendation as to constitutional law reform
  • Immunisation from constitutional review would create absolute certainty as to the stability of legislation introduced following a referendum
  • Immunised legislation could be amended through the ordinary legislative process
  • There is nothing so particular about abortion from the perspective of institutional capacity that it should exclusively be the domain of the Oireachtas without the potential for constitutional review
  • There is nothing so substantively particular about abortion from the perspective of institutional capacity that it should exclusively be the domain of the Oireachtas without the potential for constitutional review
  • Immunisation from judicial review would remove the avenue to assert constitutional rights through legal processes
  • Immunisation from judicial review would eliminate the potential for breaches of constitutional rights to be remedied
  • This would have an almost exclusive impact on women’s capacity to assert their constitutional rights

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