The Submissions I would read if I were a member of the Citizens Assembly

The Citizens Assembly has announced the 17 groups that have been invited to address the Assembly members at the March meeting. This follows relatively hot on the heels of its selection of 300 ‘random’ submissions to be brought to members’ attention, as well as the (continuing) uploading of the 13,000+ submissions that were sent to the Assembly either online or by post.

The selection of the sample and of groups to present to the Assembly has attracted some criticism, including from me. It would appear that the Assembly has taken an extremely limited approach to the concept of balance, understanding it as meaning one side ‘balancing out’ another, without regard to points of extremity, the fact that contestation is complex, the possibility of multiple points of disagreement along a scale and so on. In addition, the selection of the random sample of 300 submissions was undertaken without even the barest methodological rigour one would expect of, say, an undergraduate student by, for example, determining first the volume of submissions that were ‘template’ or repeat submissions, the broad proportions of submissions calling for repeal or retention, and then sampling from a ‘proper’ sample (with one of each template, for example) in a manner proportionate to the overall submission rates. Furthermore, in inviting people to address the Assembly it would appear that any lawyers who had ever written specifically on the issue of abortion law reform in Ireland were excluded (although not practising lawyers who had acted in abortion law cases), and the submissions of those lawyers (disclosure: this includes me) were not identified as being in any way potentially more useful or more likely to propose solutions than those of anyone else. This is in spite of the fact that at every meeting members of the Assembly have repeatedly asked for solution-oriented/forward-facing and comparative approaches to be presented to them. Continue reading The Submissions I would read if I were a member of the Citizens Assembly

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ABC Documentary on Abortion Law in Ireland

The Australian Broadcasting Company (ABC) has produced and played a radio documentary on abortion law reform in Ireland as part of its Rear Vision series. The programme, aired on November 20th, features a very long interview with me, as well as interviews with the excellent Ruth Fletcher (QMUL) and Éidín ní Shé (UCD). The programme explores both the genesis and the impacts of the 8th Amendment to the Irish Constitution, and the potential for constitutional reform. The transcript for the documentary, as well as the audio itself, are available here.

The Legal Impact of Repealing the 8th Amendment

I have a letter in today’s Irish Times on the potential constitutional impacts of a ‘simple’ repeal of the 8th Amendment. It is a response to Gerry Whyte’s (TCD) opinion editorial in the same paper yesterday, in which he presents what I think a highly unlikely scenario as a near certainty. My letter goes as follows:

Sir, – Prof Gerry Whyte argues that removing the Eighth Amendment from the Constitution may well be interpreted as being intended to remove all constitutional protection from the foetus so that any limitations on abortion in future law would be unconstitutional.

There is another possible outcome from a “simple” repeal – that the foetus might be said to have some constitutional rights that existed before, and go beyond, the right to life inserted in Article 40.3.3 so that these are not disturbed by removal of the Eighth Amendment. However, while both outcomes are possible, realistically speaking neither seems especially probable. One is an extreme interpretation of the removal of Article 40.3.3 and the other would seem to fly in the face of the sovereign will of the people expressed in a vote to remove it.

Furthermore, neither would be consistent with comparative and international best practice. Even in countries where there is no constitutional protection of the foetus, the law recognises a state interest in the preservation of foetal life that allows for regulation of abortion provided any limits that are implemented (such as time limits or “grounds”) do not unduly or disproportionately interfere with the rights of pregnant women. That is consistent with a rights-based approach to the regulation of healthcare in general, and the availability of abortion in particular.

It so happens that it is also consistent with the model abortion law that was drafted and published by a group of 10 feminist lawyers (including me) in 2015 and in respect of which, among other things, we recommended that it might be wise to include a positively worded right in the Constitution to bodily integrity and the right to self-determination in medical matters, making clear that nothing in the Constitution would preclude access to abortion as regulated by law.

That model law and an accompanying short explanation are available for all to read online (“Abortion Law Reform in Ireland: A Model for Change”).

What Prof Whyte’s article, our 2015 proposal, and this response really illustrate is that the question of how we go about reforming the Constitution on the matter of abortion is a complicated one.

What seems vital is that we do not let political expediency override the need for care and attention to be paid to the constitutional text. We did that in 1983, and we all know where that got us. – Yours, etc,

Prof FIONA de LONDRAS,

Birmingham Law School,

University of Birmingham

Edgbaston, Birmingham.

I have written about a potential replacement provision both in the piece linked in the letter and with Mairead Enright in this piece here which was published as Máiréad Enright & Fiona de Londras, “‘Empty Without and Empty Within’: The Unworkability of the Eighth Amendment after Savita Halappanavar and Miss Y” (2014) 20(2) Medico-Legal Journal of Ireland 85

New comment: on the end of TRAP laws

This morning I·CONnect (the blog of the International Journal of Constitutional Law) published a new commentary from me on Whole Women’s Health v Hellerstedt, the US Supreme Court’s recent decision striking down HB2, a Texan TRAP law. TRAP laws are Targeted Regulation of Abortion Provider laws, and have become a substantial part of anti-abortion and anti-choice efforts to restrict abortion in the United States. In this short commentary, I argue that Whole Women’s Health and particularly the contribution to the judgment by Ruth Bader Ginsburg, sharply constraints the possibilities that TRAP laws offered to undercut the constitutional right to access abortion in that jurisdiction. The whole post, which is around 1200 words, is here, and the core argument can be discerned from this passage: Continue reading New comment: on the end of TRAP laws