Along with almost 8,000 other individuals and organisations, I made a written submission to the Citizens Assembly considering Article 40.3.3 of the Irish Constitution, which recognises a right to life of “the unborn” and the equal right to life of pregnant women. The Citizens Assembly was established to bring together 99 randomly selected ‘citizens’ under the chairmanship of Ms Justice Laffoy, to consider numerous potential changes to the Irish Constitution, the first of which is ‘the 8th Amendment’. The terms of reference of the Assembly are here. Continue reading “Submission to the Citizens Assembly on Abortion Law Reform 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.
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
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
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”