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

Forthcoming paper: Mellet v Ireland & abortion law reform

I have a new paper forthcoming (either later this year or early next year) in the Medical Law Review: “Fatal Foetal Abnormality, Irish Constitutional Law, and Mellet v Ireland”.

The paper, which is really an extended case commentary, considers the UN Human Rights Committee’s decision in Amanda Jane Mellet v Ireland, handed down earlier this summer. The decision was ostensibly about the human rights implications of criminalising abortion in situations of ‘fatal foetal abnormality’, however in this paper I question whether the reasoning in the case is limited to that circumstance, and argue that the underpinning harms identified as constituting violations of the ICCPR (including inhuman and degrading treatment) actually arise across the spectrum of abortion criminalisation in Ireland. Read this way, Mellet illustrates the rights-based need for comprehensive abortion law reform, and not only for reform in respect of FFAs. Continue reading “Forthcoming paper: Mellet v Ireland & abortion law reform”

Proposed new surveillance laws in Ireland

Last Wednesday the Irish Times carried a long article by Elaine Edwards on the proposal to extend surveillance and intercept laws in Ireland to social media accounts and web-based text messages. I am quoted in the story, noting how important it is that effective safeguards and oversight would be built into any such proposed law to ensure its compliance with fundamental rights. The whole story can be accessed here.

New blog: Ireland’s Abortion Ban: Subjecting Women to Suffering and Discrimination

As an associate of the Oxford Human Rights Hub, I occasionally provide posts for the Hub’s excellent blog. Yesterday my latest contribution was published. In “Ireland’s Abortion Ban: Subjecting Women to Suffering and Discrimination“, I consider the challenges posed by Mellet v Ireland and how the government might respond to them. I also argue against taking a narrow approach of addressing access to abortion in cases of fatal foetal abnormality only, and leaving the remainder of the 8th Amendment regime changed. The full post can be accessed here, and closes thus:

The Irish people voted on abortion in 1983, 1992 and 2002, but no referendum has ever offered the opportunity to liberalise abortion law. The Taoiseach (Prime Minister) has committed to convening a ‘Citizens’ Assembly’ to consider inter alia revisiting the 8th Amendment, and the UNHRC’s decision is expected to expedite this. However, to take the UNHRC’s decision as outlining ‘all’ that has to be done to make Irish abortion law compliant with human rights law and basic conceptions of bodily integrity, autonomy and self-determination, would be to mitigate the cruelty of the 8th Amendment only in a very particular kind of circumstance (FFA) without addressing the overall dilemma for pregnant women in Ireland. Thus, it is imperative that the terms of reference for the Citizens’ Assembly are expansive and allow for every option to be considered, including placing a positive statement of the right to self-determination in all medical matters into the Constitution.

The likelihood of that happening, however, seems low as long as the Government seems unwilling to have ‘big’ and difficult conversations about the status of the foetus, autonomy and self-determination, choice, medical care and medico-legal culture, belief, and morality. While decisions like the UNHRC’s can prompt political action, they cannot compel this difficult, uncomfortable, but necessary national conversation. Only political leadership and courage can do that. We wait to see whether that will be the legacy of the promised Citizens’ Assembly.