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.