#repealthe8th – Page 2 – Professor Fiona de Londras

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

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.

Mellet v Ireland and the need to comply

In yesterday’s Irish Times a group of 61 lawyers and others (including me) co-authored a letter outlining six reasons why Ireland should comply with Mellet v Ireland, the UNHRC’s recent decision. We put these reasons thus:

1) In 1989, Ireland voluntarily ratified the ICCPR. Under international law, it must now comply with the treaty in good faith. It cannot invoke its Constitution, or any other domestic law as rationale for failure to comply (Articles 26 and 27 of the Vienna Convention on the Law of Treaties).

2. Although the UN Human Rights Committee does not have the status of an international court, Ireland has accepted its competence to hear individual complaints and to give authoritative interpretations of the ICCPR. Its members are impartial and independent. Ireland recognised the committee’s competence to issue determinative interpretations of the convention when it ratified the ICCPR and its optional protocol.

3) When Ireland subjected Ms Mellet to cruel, inhuman or degrading treatment, it committed an internationally wrongful act. International law, including the ICCPR, requires it to remedy this wrongful act, provide reparations and guarantee non-repetition. Ireland cannot invoke provisions of its domestic law as rationale for a failure to do so (Article 2 of the International Covenant on Civil and Political Rights; Articles 1, 3, 30-32 of the Principles on Responsibility of States for Internationally Wrongful Acts).

4. It is immaterial to Ireland’s responsibility under international law that the relevant treaties have not been incorporated into domestic law or that as such the decisions of the committee are not necessarily enforceable in Irish courts. Under international law a lack of enforcement options under domestic law, or the fact that under domestic law the committee’s decision is not binding, can never be used as justification for non-compliance.

5) If Ireland does not remedy the harm suffered by Ms Mellet and guarantee non-repetition it will place Irish medical professionals in profoundly difficult ethical situations and place them at risk of complicity in cruel, inhuman or degrading treatment.

6) If Ireland does not remedy the harm suffered and guarantee non-repetition it will leave itself open to repeated future litigation against the State before the UN committee or other international bodies, including the European Court of Human Rights.

In response Rev. Patrick G Burke–a prolific letter writer to the Irish Times—argues today:

However, as the signatories note, the UN committee is not a court of law. Its function is to assess Ireland’s compliance with the covenant as it is written, not to interpret the covenant in such as way as to apply a particular article of it to a situation for which it was not intended. When it attempts to do so it acts outside its authority and its findings are not and can not be binding.

This is the opinion of our Taoiseach, based on the legal advice taken from those whose primary concern is the best interests of this nation rather than advancing some particular agenda or another. These legal experts, I would suggest, should see the bigger picture here – the importance of asserting Ireland’s sovereignty and our right as a people to make our own decisions democratically.

In his response Rev Burke both misses the point of our argument (i.e. that the question of ‘bindingness’ is not determinative of the question of whether Ireland ought to comply) and the ‘point’ of being part of international legal institutions, i.e. that sovereignty is not all that matters. Rather, sovereignty can result in rights violations and, where that happens, international institutions can helpfully step in and illustrate the rights-related damage that our “sovereignty” has done, as was the case for Amanda Mellet. If what is needed to respond effectively to the rights violations that result from the Irish abortion law regime is a referendum (and it is), and if a referendum is the expression of sovereign will (which in Irish constitutional doctrine it is construed to be), then what is the problem, in any case, with holding another referendum?

Rev. Burke also suggests that the Committee has applied the ICCPR to a situation to which it was never intended to apply. One wonders how he reaches such a conclusion. The rights protected in the ICCPR apply to all situations. We cannot carve out exclusionary zones in which the Covenant somehow does not apply (there are no relevant reservations or derogations in place here). Rev. Burke may not like the Committee’s findings, but it is in no way illegitimate for the Committee to apply the standards of the ICCPR to a situation such as that of Ms. Mellet. Under international human rights law, after all, she is a rights-bearer when pregnant, just as she is when she is not.

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.