Category: Media

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

Defending academic freedom in Turkey

In the wake of last week’s failed coup, President Erdoğan of Turkey has been taking ‘decisive’ steps against those he claims or suspects were involved in the organisation of the coup or otherwise supported it. This has included people involved in the education sector: 21,000 teachers have had their licences revoked, over 1.5 thousand university deans have been instructed to resign, and a ban on international travel for professional purposes has been placed on all university academics.

There is, of course, concern that these activities are not only oriented towards removing ‘plotters’ from public life, but also quietening all opposition to the Erdoğan regime and, thus, greatly undermining critical democratic spaces represented by universities and other educational settings. I spoke about this yesterday on the Russia Today news channel and the interview and associated news story is available here.

I have also started a petition, which so far has over 600 signatures, directed specifically towards expressing solidarity to our academic colleagues in Turkey and asking President Erdoğan to rethink and revoke the travel ban. Please do consider signing it and share it widely.

There is also an open letter here, condemning the purge in Turkish universities, which I would also encourage people to sign.

The more support our colleagues in Turkey get from their international colleagues, the better.

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.

Some thoughts on the Citizens Assembly on the 8th Amendment

This afternoon Newstalk (an Irish radio station) asked me to write a short piece on the proposed Citizens Assembly, which the Taoiseach has announced will be convened next week to consider the 8th Amendment. My full column is available here, but in short I argue:

Little will be gained if the Citizens Assembly turns into a microcosm of the broader debate on abortion per se; if it is to be useful, rather than a mere stalling exercise, it seems clear that it should have a purpose that is oriented towards discussing in broad terms the options for reform.

The details of the proposed reform might then be discussed in an Oireachtas Committee, informed by the views of the Citizens Assembly, but in the design of the Citizens Assembly it seems important to remember this: It is the people, not the Assembly or the Oireachtas, that determines the content of the Irish Constitution.

Whatever option is put before the People should give voters a real choice between the current legal regime and one that is more permissive in a meaningful way. If it can figure out how to do this, the Citizens Assembly will be a useful forum indeed.