New Paper on Constitutionalising Foetal Rights

BunreachtHeadI have posted a working version of my new paper, ‘Constitutionalizing Fetal Rights: A Salutary Tale from Ireland’ on SSRN for free download. The final version will be published this winter in the Michigan Journal of Gender and the Law.

The paper considers how the idea of ‘foetal rights’ made its way into the Irish Constitution in 1983. With the 8th Amendment, Ireland became the first country to explicitly recognise the foetus as a constitutional rights bearer, and the repercussions of that for law, medicine and politics–not to mention for pregnant women–have been immense. In the paper, I outline those developments and argue that, by constitutionalising foetal rights, a system blocks out the space forpersonal moral judgement in reproductive decisions, medical judgement in clinical decisions, and political judgement in policy decisions. This has particularly been the case in Ireland, where an über conservative interpretation has been applied to the 8th Amendment, not only in the earlier cases that foreclosed information provision, for example, but also in very recent cases appearing to establish a constitutional concept of foetal best interests.

There is still time for me to make revisions to this paper, and comments are most welcome. You can download the paper for free here, and it is also attached to this post here. The formal abstract states:

In 1983, Ireland became the first country in the world to constitutionalize fetal rights. The 8th Amendment to the Constitution, passed by a referendum of the People, resulted in constitutional protection for “the right to life of the unborn”, which was deemed “equal” to the right to life of the “mother”. Since then, enshrining fetal rights in constitutions and in legislation has emerged as a key part of anti-abortion campaigning. This article traces the constitutionalization of fetal rights in Ireland and its implications for law, politics and women. In so doing, it provides a salutary tale of such an approach.

More than thirty years after the 8th Amendment it has become clear that Ireland now has an abortion law regime that is essentially ‘unliveable’. Not only that, but it has a body of jurisprudence so deeply determined by a constitutionalized fetal rights orientation that law, politics and medical practice are deeply impacted and strikingly constrained. This is notwithstanding the clear hardship women in Ireland experience as a result of constitutionalized fetal rights and the resultant almost-total prohibition on accessing abortion in Ireland.

This article argues that, wherever one stands on the question of whether legal abortion ought to be broadly available in a particular jurisdiction, constitutionalizing fetal rights leaves no meaningful space for judgement at either political or personal levels. Rather, the outcome of all arguments for a more liberal abortion law regime is effectively pre-determined in the negative. Furthermore, constitutionalizing fetal rights can have unforeseen implications across jurisprudence and medical practice, creating a situation in which there is essentially no space for more liberal interpretations that respect women’s reproductive autonomy. While this may be desirable from an ideological perspective for those who hold a firm anti-abortion position, it is distinctively problematic for women and for politics.

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New article on Irish abortion law (Enright & de Londras)

B4kdwNXCAAAWc3jUpdate I have now attached pre-print version of the article to this post.

My latest article, co-authored with Màiréad Enright (Kent), has just been published. Part of a special issue of the Medico-Legal Journal of Ireland to reflect on the first year of the Protection of Life During Pregnancy Act 2013, the conclusion of the paper presents a summarised version of the argument thus:

The cases of Miss Y and Savita Halappanavar demonstrate that the Eighth Amendment has been reduced, over the years, to a catalogue of anomalies, unexplained readings, missed opportunities and speculative silences. Although the constitutional text might be applied in a manner that more appropriately recognises women’s autonomy as well as their rights to health, bodily integrity and privacy, this would require a fundamental shift in the interpretation of Art.40.3.3°, led either by the judiciary or the Oireachtas. This is a highly unlikely prospect owing to a likely reluctance by the judiciary to engage in such activism in the field of abortion jurisprudence, given the political fallout from the X case, probable political resistance to grasping the nettle of abortion law reform and cross-party disagreement on the appropriate legal regime in Ireland. In this sort of instance, constitutional reform by means of a referendum is clearly required. The shape of such reform might be decided following a period of consultation, perhaps by means of a specially-convened constitutional convention. However, before that can happen, we must agree, in principle, that the status quo is unsustainable. The cases of Miss Y and Savita Halappanavar, which frame this article, bring the hardship caused by the Eighth Amendment into stark relief.

The full citation is Mairead Enright & Fiona de Londras, “‘Empty Without and Empty Within’: the Unworkability of the Eighth Amendment after Savita Halappanavar & Miss Y” (2014) 20 Medico-Legal Journal of Ireland 85

Latest Publication: (2013) 3(3) IJLS 54

My latest article has just been published in a special issue of the Irish Journal of Legal Studies. The piece, co-authored with my Durham colleague Laura Graham, can be accessed here and is entitled “Impossible Floodgates and Unworkable Analogies in the Irish Abortion Debate”. The abstract is as follows:

Twenty years after the Supreme Court’s decision in Attorney General v X. [1992] 1 I.R. 1 confirmed that there is a limited constitutional right to access abortion in Ireland under Article 40.3.3˚ of Bunreacht na hÉireann, the Irish government has passed the first piece of legislation that would regulate its availability. The debate about the introduction and form of this legislation is rife with floodgate arguments, suggesting (either implicitly or expressly) that the introduction of abortion legislation within current constitutional boundaries would only be a starting point, following which so-called “abortion on demand” would flow. In this article we address three of the core legally-grounded floodgates arguments that are made, outlining how these fears are unfounded, disingenuous, and, more particularly, how comparisons to the British abortion regime are unhelpful, by reference to the constitutional position in Ireland. These arguments relate to: the lack of a time limit on the availability of abortion; suicidal ideation; and the possibility of patient-doctor collusion. This article aims to show that these arguments have no current legal purchase within the Irish context. Rather, the fears and concerns represented by these floodgates arguments are already managed by the very limited constitutional availability of abortion in Ireland. As such, we argue, these arguments ought not to be given undue weight in the debates, which should instead focus on introducing a clear, workable and effective legislative framework for women in Ireland to exercise their right to access an abortion where they wish to do so in a manner that reflects the constitutional position.

The IJLS is an open access journal published fully online by my former colleagues in University College Cork Faculty of Law.