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Fiona de Londras - Sat Jan 20, 2018 12:58
In the last week, while the members of the Oireachtas were making statements in response to the report of the Joint Committee on the 8th Amendment as well as the Citizens’ Assembly recommendations which it discussed, the spectre of repeal and replace has arisen again. The Citizens’ Assembly recommended the repeal of the 8th Amendment […]
In the last week, while the members of the Oireachtas were making statements in response to the report of the Joint Committee on the 8th Amendment as well as the Citizens’ Assembly recommendations which it discussed, the spectre of repeal and replace has arisen again. The Citizens’ Assembly recommended the repeal of the 8th Amendment and its replacement with a provision ?explicitly authorising the Oireachtas to address termination of pregnancy, any rights of the unborn and any rights of the pregnant woman?. It is broadly agreed that in doing so the Assembly was reflecting a concern with the possibility of residual constitutional foetal rights existing that might, through subsequent litigation, be found to frustrate or circumscribe the Oireachtas in legislating for abortion. The Joint Committee acknowledged that concern but, finding the risk of it materialising in ?real life? marginal, proposed instead a ?repeal simpliciter? that would delete Article 40.3.3 and not replace it with anything. We now hear that both the Taoiseach and, potentially, leader of Fianna Fáil Micheál Martin are concerned with the possible ramifications of repeal simpliciter, so that repeal and replace is firmly ?back on the table?. In this post I outline (a) whether this is necessary, and (b) if it were to be pursued what the options are.
Is repeal and replace necessary?
There is an arguable legal case that repeal and replace is necessary if we want to ensure that the Oireachtas has the power to legislate for abortion unrestricted by any constitutional rights of the foetus. This is because (a) there are some (non-binding) suggestions from early case law that the foetus had constitutional rights before the insertion of the 8th Amendment in 1983, (b) there are some (conflicting) suggestions from contemporary case law that the foetus may have a larger suite of constitutional rights than ?only? the right to life enshrined in Article 40.3.3. So there is some cause for concern.
However, it is reasonable to expect that should the electorate vote to remove the 8th Amendment in the context of the current repeal debates and discourse?i.e. clearly to allow for a substantial legislative space for the Oireachtas?that any court faced with an argument of foetal constitutional rights would most likely interpret the deletion of Article 40.3.3 as removing constitutional rights from ?the unborn?.
This would not mean that there would be an absolute right to access abortion: the rights on which access to abortion would then rely (e.g. privacy, and bodily integrity) can be limited by the pursuit of a legitimate social aim provided those limitations are proportionate. So, as in other countries, time limits or procedural requirements could be imposed on access to abortion, but those limitations could not diminish the ?heart? of a pregnant person?s right to access lawful abortion.
In all likelihood, then, a simple repeal would ensure the Oireachtas could legislate for access to abortion and that unenumerated foetal rights would not exist to undermine or frustrate that. But of course such an outcome cannot be guaranteed, and it seems to be this?this quest for absolute legal certainty?that is driving much of the argument in favour of a replacement provision. To some extent it seems as if politicians want to be absolutely sure of what they can do so that no claims of unconstitutionality would emerge. But legal certainty of that kind just doesn’t exist; not in any field of policy. Instead, we seek a reasonable level of legal certainty within which the Oireachtas can operate and accept that from time to time a challenge in court might reveal that it overstepped its constitutional bounds. There appears to be a political nervousness, though, in accepting such a level of certainty as sufficient in the context of abortion (on which see this excellent analysis from Máiréad Enright). This might well be where the suggestions that abortion law could even be immune from judicial review come from, notwithstanding the extraordinary and (to my mind at least) unjustifiable nature of such a proposition.
So, while there may be a technical legal argument in favour of repeal and replace (indeed, this is an argument that I myself subscribed to for some time?see p. 11 and following here), what underpins it may well be a deep desire for some absolute and final determination of the constitutional position on abortion, absolving the Oireachtas of its usual role of making a judgement about whether proposals are or are not constitutional, and removing the possibility of constitutional judicial oversight.
Options for Replace
If the proposal to repeal and replace is pursued, then the replacement provision must be carefully considered. There does not seem to be any realistic argument being made that a replacement provision would try to enunciate the situations in which abortion would lawfully be available in Ireland; the mention in Micheál Martin?s speech of an ?enabling? provision, for example, indicates clearly that such a detailed provision is not in mind. Nor should it be. As agreed almost universally by experts at the Joint Committee, such a complex provision would create unacceptable levels of uncertainty and a cumbersome and unworkable constitutional landscape. Instead, if what is sought is a simple enabling provision, then it should be designed by reference to its objectives:
As I have previously argued, doing that can be achieved by a simple provision such as ?Nothing in this Constitution prohibits abortion as provided for by law?. Should one prefer a more positive wording, something like ?The Oireachtas is hereby empowered to regulate the termination of pregnancy by law? might be considered, but the latter wording does not clearly indicate that (if they exist) unenumerated foetal rights have been repealed.
What is of fundamental importance, however, is that any proposed replacement should not attempt to reinsert ?the unborn? as a constitutional rights bearer, or to ?balance? the rights of the pregnant person and the foetus in its text. To do this would simply muddy the waters of the scope and nature of the Oireachtas’ legislative authority and pregnant people’s constitutional rights, and in doing so utterly undermine the decisional security that pregnant people need to make decisions that are right for them about whether to continue with a pregnancy.
The protection and preservation of foetal life is a legitimate and valuable societal goal. However, when that is pursued by endowing the foetus with constitutional rights it sets up a legal contest of rights between a pregnant woman her foetus that inevitably results in the practical reduction of women?s enjoyment of constitutional rights. It is far better to pursue the preservation of foetal life through the promotion of voluntary and consensual pregnancy by providing appropriate sex education, contraception, health care, effective and adequate social and socio-economic supports for parenting, and a well-designed law regulating abortion in which proportionate limitations on or procedural requirements for access to abortion are laid down in law. Such a law much be accompanied by rights-based guidelines and medical training, and must place at its centre the wishes, well being, health and empowerment of pregnant women.
A replacement constitutional provision cannot hope to achieve that, and if it is to be pursued at all, must be a simple enabling provision that enhances clarity around the legislative power of the Oireachtas by ensuring that residual foetal constitutional rights cannot be invoked to prevent access to lawful abortion.
This draws to some extent on arguments made in Fiona de Londras & Máiréad Enright, Repealing the 8th: Reforming Abortion Law in Ireland in which we argue in favour of repeal simpliciter. The book will be published on 7 February 2018 and will be made available for free online.
GuestPost - Mon Jan 15, 2018 09:30
This guest post is contributed by Donnchadh O’Conaill, a post-doctorate researcher at the Department of Philosophy in the University of Fribourg, Switzerland. It is written and contributed in a personal capacity. This week the Dail meets to discuss the Oireachtas Committee ‘s recommendation that abortion be allowed on request up to 12 weeks into a […]
This guest post is contributed by Donnchadh O’Conaill, a post-doctorate researcher at the Department of Philosophy in the University of Fribourg, Switzerland. It is written and contributed in a personal capacity.
This week the Dail meets to discuss the Oireachtas Committee ‘s recommendation that abortion be allowed on request up to 12 weeks into a pregnancy. This is likely, though by no means certain, to form the basis of a proposal to remove the Eighth Amendment from the Constitution. The committee’s recommendation was a politically momentous decision, but one which may have even greater significance in shaping the direction of the national debate to come.
Until recently much of the narrative around repealing the Eighth Amendment had focused on certain types of cases and on specific grounds on which abortion might be justified. These cases included fatal foetal abnormalities and pregnancies which occur as a result of rape or incest.[i] Stories describing these cases are undeniably powerful. They are by no means the only kinds of case which have been discussed, but they have been central to the growing movement for repeal.
The Oireachtas Committee’s recommendations are likely to shift the focus of the debate away from specific kinds of case and towards considering access to abortion regardless of the woman’s reasons (within a time limit). This change presents certain opportunities for the repeal side, but also for their opponents. For the repeal side, it allows for a much more workable law, should a referendum be held and carried; in contrast, it would be extremely difficult to craft a law allowing abortion on the specific grounds of rape or incest. A law based on time limits would bring Irish law into line with most other regimes in the EU, which tend to allow abortion on request up to a certain time limit, with exceptions on limited grounds after that point. And it may allow repeal campaigners to argue that the chances of further liberalisation would be slim, considering how little change there has been in the abortion regimes of most EU countries with comparable laws.
This proposal also offers opportunities for opponents of repeal. Most importantly, the recommendations would amount to abortion on demand, albeit within a strict time limit (one may not want to use this phrase, but allowing abortion regardless of the specific reasons the woman has for requesting it is what it means). A large section of the Irish public would have serious reservations about this prospect.
More generally, allowing abortion within a limited time frame in effect acknowledges that the moral status of the foetus changes as it develops. The foetus undergoes enormous physiological changes between conception and birth. One line of thinking is that these changes have moral significance ? bluntly put, the life of a zygote is less important than that of a foetus which is much closer to term. Implicit in this view is a certain picture of what the moral value of a foetus consists in. And this is where the really deep philosophical difference between pro-life and pro-choice views is found.
To make the point clearer, it helps to distinguish three different kinds of question one can ask about abortion: we can term these the moral, legal and meta-ethical questions, respectively. The moral question is whether abortion is ever permissable, morally speaking, and if so in which circumstances.[ii] The legal question is whether abortion should be legally available, and if so in which circumstances.
The meta-ethical question may be less familiar, at least under that description. Meta-ethics is, very roughly, the study of moral values, properties or concepts.[iii] Rather than asking what is good or what is morally permitted, we ask what is morally valuable, and why. The central meta-ethical question about abortion is as follows: what is it about the foetus which makes it morally important, to the extent that it is morally important? An opponent of abortion will often answer that its humanity, the fact that a foetus is a living human being, is enough to give it the same moral value as any other human. Someone who supports the widespread availability of abortion may propose that the foetus is valuable only when it can survive outside of the womb; or they may suggest that the foetus acquires a moral status comparable to an infant or an older person only when it becomes sentient, i.e., becomes capable of having conscious experiences. This is generally agreed to occur in the second trimester at the very earliest.
The meta-ethical question is a genuinely difficult one, and it is trecherous terrain for proponents of repeal. That abortion is the taking of an innocent human life, and that this is always a bad thing, is a clear line for opponents of abortion to take. It is trickier to argue that some human lives are not as important as others; taking this line requires clarifying what it is about human lives which makes some valuable and others not, and that is not an easy task.
Given the recommendations of the committe, it will be difficult for proponents of repeal to avoid the meta-ethical question. This is because the committee’s recommendations would, if enacted, in effest amount to adopting two different legal regimes concerning abortion: unrestricted access up to twelve weeks, restricted access thereafter. Supporters of repeal must not only be able to justify each regime separately, but must have some answer as to why the two should go together.[iv] By far the most obvious answer is that the law should take account of changes in the moral status of the foetus as it grows and develops.[v] The difficulty is how this change in moral status is best understood and most effectively defended.
[i] For instance, Amnesty International has made such cases a prominent part of its campaigning for repeal (https://www.amnesty.org.uk/ireland-abortion-laws-repeal-eighth-amendment?utm_... ).
[ii] A further question concerns the circumstances under which abortion would be, if morally permitted, the right choice. For an excellent disucssion see Rosalind Hursthouse, ‘Virtue Theory and Abortion’.
[iii] For an accessible introduction see http://www.iep.utm.edu/metaethi/?utm_source=rss&utm_medium=rss.
[iv] Nor would it help for proponents of repeal to argue that just one regime or the other should be enacted. There is little chance that the public would accept abortion on request without time limits , and legislating for abortion on the basis of specific grounds, e.g., rape or incest, would be inpracticable.
[v] Something like this was proposed, in passing, by John Crown (https://www.independent.ie/opinion/analysis/doctors-need-to-join-in-the-embry... ).
Liberty, the ICCL, and other NGO groups? landmark challenge against the UK Government?s mass surveillance
admin - Tue Nov 07, 2017 11:56
Today, 10 human rights organisations including the Irish Council of Civil Liberties (ICCL) brought a court challenge against the lawfulness of the UK Government?s mass digital surveillance regime. They argued at the European Court of Human Rights that the UK government?s ability to access people?s private communications, without their knowledge or consent, is unlawful. The […]
Today, 10 human rights organisations including the Irish Council of Civil Liberties (ICCL) brought a court challenge against the lawfulness of the UK Government?s mass digital surveillance regime. They argued at the European Court of Human Rights that the UK government?s ability to access people?s private communications, without their knowledge or consent, is unlawful. The case is founded on Articles 8 (the right to privacy), Article 10 (the right to freedom of expression and information), and Article 14 (against discrimination) of the European Convention on Human Rights.
This is not the first time ICCL has challenged the UK?s surveillance systems. In 1999, ICCL, Liberty and British-Irish Rights Watch brought another challenge to the Strasbourg Court in relation to the UK Ministry of Defence?s system of surveillance. In its 2008 judgment, the Court found that the UK system was in breach of the right to respect for private and family life under Article 8.
Almost ten years later, the present case concerns the existence of digital surveillance programs that are now far more extensive and powerful. Edward Snowden revealed through released documents in 2013 that governments across the world are using modern technology to collect our private communications in bulk. The UK has intercepted and stored all communications entering and leaving the UK via fibre-optic cables.
Here in Ireland, fibre-optic cables are also alleged by Snowden released documents to have been intercepted. The Snowden documents show specifically how the framework of cables connecting Ireland to digital information beyond its borders are being tapped by the UK government.
Apart from everyday citizens, the UK government is also watching human rights organisations aligned with the ICCL, giving rise to grave concerns about the impact of surveillance on democratic freedoms. In particular, we now know that they?ve spied on the South African Legal Resources Centre, a rights group connected with the ICCL through the International Network of Civil Law Organisations (INCLO). INCLO is 13 independent national human rights organizations in the global North and South.
This level of interference in our private activities via digital surveillance is unprecedented. Through access to our digital data, governments can now easily see where we?re going, who we?re talking to, and what interests we have. All without our knowledge or consent. The ICCL stands against these encroachments on our fundamental right to privacy.
Several INCLO members have also joined Tuesday’s court challenge against the UK?s international surveillance regime, including the Legal Resource Centre, Liberty, the American Civil Liberties Union, the Egyptian Initiative for Personal Rights, and the Canadian Civil Liberties Association.
As Martha Spurrier, Liberty?s Director has written of the mass surveillance: ?No democratic state has ever deployed it against its citizens and human rights advocates and remained a rights-respecting democracy?.
The Snowden files have shown the world the power and potential threat that modern mass surveillance poses to our privacy and to democratic freedoms. We at the ICCL and our international human rights colleagues understand that it is necessary to work together to safeguard privacy rights on a global scale. We will continue to fight, at the European Courts and elsewhere, against the erosion of our hard earned democratic rights via government programs of mass digital surveillance.
Elizabeth Farries is the Information Rights Program Manager for both the Irish Council of Civil Liberties and the International Network of Civil Law Organizations. She is also a PhD Candidate researching digital privacy rights and cybermisogyny at the Trinity College Dublin.
Eilionoir Flynn - Mon Oct 23, 2017 12:53
Human Rights in Ireland is delighted to welcome this guest post from Aine Sperrin. Aine is a PhD student at the Centre for Disability Law and Policy, NUI Galway, where her research focuses on achieving the right to independent living for people with intellectual disabilities in post-conflict states. This blog has been written by Aine in […]
Human Rights in Ireland is delighted to welcome this guest post from Aine Sperrin. Aine is a PhD student at the Centre for Disability Law and Policy, NUI Galway, where her research focuses on achieving the right to independent living for people with intellectual disabilities in post-conflict states. This blog has been written by Aine in a personal capacity and does not represent the opinions or positions of any organisation with which she is associated.
This year marks the tenth anniversary of Ireland signing the United Nations Convention on the Rights of Persons with Disabilities (CRPD). This landmark has been seized upon by disability advocates to highlight the delay in recognition of their rights. It has prompted a resurgence of rights awareness and reignited a public discussion on the standards of services and lack thereof for persons with disabilities.
Independent living is an activity which the majority of us perform every day. It is fundamentally based on utilising the resources and supports necessary to live our daily lives in the way which we see fit. The concept evolved when patriarchal, segregated medical models of disability services were rejected by persons with disabilities in the 1960s in the United States. The ethos of the Independent Living Movement demanded choice and control over one?s own services and recognition of society creating disabling barriers.
While all human rights apply non-discriminatorily to everyone, persons with disabilities do not enjoy their fundamental human rights on an equal basis with others. The recognition of these inequalities prompted the United Nations to draft a disability specific Convention. The CRPD does not create any new rights. It provides a framework for existing civil, political, social, economic and cultural rights to be implemented for persons with disabilities.
Article 19 of CRPD relates to independent living and community participation. It provides significant detail into what actions States should take to achieve independent living.
?States Parties to this Convention recognize the equal right of all persons with disabilities to live in the community, with choices equal to others, and shall take effective and appropriate measures to facilitate full enjoyment by persons with disabilities of this right and their full inclusion and participation in the community, including by ensuring that:
(a) Persons with disabilities have the opportunity to choose their place of residence and where and with whom they live on an equal basis with others and are not obliged to live in a particular living arrangement;
(b) Persons with disabilities have access to a range of in-home, residential and other community support services, including personal assistance necessary to support living and inclusion in the community, and to prevent isolation or segregation from the community;
(c) Community services and facilities for the general population are available on an equal basis to persons with disabilities and are responsive to their needs.’
Alongside the actual text of Article 19, there are numerous guidance documents from international human rights bodies. These include the 2017 annual thematic report on independent living from the Office of the High Commissioner for Human Rights, research by the European Union Agency for Fundamental Rights and most specifically to this discussion General Comment No 5 from the Committee on the Rights of Persons with Disabilities.
United Nations General Comments provides in-depth guidance by a Treaty Monitoring Body on a particular issue. CRPD General Comment No. 5 recognises the historic deprivation of choice and control in the lives of persons with disabilities. It reinforces persons with disabilities as rights holders but recognises the continuing social exclusion arising from disability. The interdependence of civil and political rights with economic, social and cultural rights enshrined in Article 19 is highlighted as well as the protection for the right to independent living and community participation by other human rights treaties. Article 19 can provide a supportive role to the international development agenda and Sustainable Development Goals by ensuring accessibility of sustainable cities and human settlements.
The Comment notes the progress made in realising Article 19 by numerous states to date but identifies the barriers which remain. These include denial of legal capacity which limit decision making about living arrangements, inadequacy of social support and protection to facilitate independent living. Likewise at a national level inadequate legal frameworks and budgets, the continuation of institutionalisation and lack of deinstitutionalisation strategies also contribute to preventing full participation in communities. At community levels attitudinal barriers, inaccessible public services, lack of monitoring of Article 19 initiatives, continued segregation of disability issues and inconsistencies in rural/urban experiences contribute to preventing enjoyment of Article 19 for persons with disabilities.
The General Comment focuses in detail on each aspect contained within Article 19. The discussion on Article 19 (a) suggests that the enjoyment of the right to independent living goes further than merely conducting daily activities. Independent living entails exercising choice and control in all aspects of daily life. The General Comment acknowledges that the physical building an individual occupies does not equate to independent living where there are restrictions imposed regarding living arrangements, segregation from the community and a disproportionate amount of persons with disabilities resident within a setting.
Personal assistance provided for by Article 19 (b) should be an option to avail of disability services in which the individual can act as an employer themselves. It is also possible to contract out the role of the employer. The elements required for CRPD compliant personal assistance are provision of funding based on individual criteria, control of the service by the individual and the maintenance of a one-to-one relationship with the assistant. Appropriate supports should be provided to facilitate communication of direction of personal assistance services.
Accessibility of non-disability specific facilities which are available to the general population is contained within Article 19 (c). These include facilities where commercial, educational, transport, and social activities occur. Community development must accompany deinstitutionalisation programmes in order to be successful. Residential properties which are accessible and adaptable should be made available in the community, must be of a variety to facilitate individuals and families and must also be affordable.
Arguments by States of the inability of some persons with disabilities to live independently due to high support needs are incompatible with Article 19. The enjoyment of the right to live independently across gender, age, sexuality, ethnicity, race, refugee and asylum status, religious belief and linguistic minority is highlighted. Economic considerations cannot take precedence over the human rights of the individual.
The provision of choice and access to information on choices are central elements to accessing independent living in a CRPD compliant manner. Connected to this is recognition of legal capacity to have choices and decisions respected as enshrined in Article 12 CRPD. The recognition of persons with disabilities as rights holders when accessing individualised support rejects the medical and charitable models of service provision.
The State is obliged to immediately implement the right to choose one?s place of residence as this is a civil-political right. The socio-economic rights to individualised support must be realised progressively. The state must not act in such a way to violate Article 19 and it must protect the individual from violations from families, third parties or entities. It must also promote the right to independent living through all of its statutory functions such as judicial, budgetary and administrative. The General Comment also highlights the interdependence of Article 19 on the fulfilment of other CRPD provisions such as the rights to non-discrimination, accessibility, education and awareness raising. Steps to be taken at a national level are clearly outlined. The provision of adequate resources for independent living, consultation with persons with disabilities on deinstitutionalisation strategies, tackling negative attitudes and monitoring deinstitutionalisation strategies are among the recommendations which Ireland could benefit from the most.
Independent living as outlined in the General Comment No. 5 is the gold standard for which Ireland should be aiming. There are worrying developments in relation to how alternative appropriate supports are not being devised and delivered alongside the process of deinstitutionalisation in Ireland today. At a Department of Health public consultation on personalised budgets which I attended on 11th October 2017 the importance of choice and control was high on the agenda. Self-advocates, families and representatives of the disability sector highlighted that when there are no services available, that choice remains theoretical. Assessments of need are provided with no guarantee of the needs being addressed. This is a reality in pre-CRPD ratification Ireland. The Taskforce on Personalised Budgets heard this. There is ample guidance from expert bodies. The State must capitalise on the wealth of international expertise on how to approach independent living for persons with disabilities.
Fiona de Londras - Tue Oct 03, 2017 06:31
Fiona de Londras | @fdelond There is going to be a referendum on the 8th Amendment in 2018. That much is clear. What we don?t yet know is what proposition will be put to the people. In part, this is because the Citizens Assembly recommended that Article 40.3.3 ?should be replaced with a constitutional provision […]
Fiona de Londras | @fdelond
There is going to be a referendum on the 8th Amendment in 2018. That much is clear. What we don?t yet know is what proposition will be put to the people. In part, this is because the Citizens Assembly recommended that Article 40.3.3 ?should be replaced with a constitutional provision that explicitly authorises the Oireachtas to legislate to address termination of pregnancy, any rights of the unborn and any rights of the pregnant woman?. In doing this, it is very clear that the Assembly was concerned to ensure that the Oireachtas would have the power to introduce wide-ranging abortion law reform should it wish to do so; this is evident from the legislative recommendations it then went on to make. Whether the Assembly meant that the Oireachtas should be given an express power to legislate, or whether it meant that the Oireachtas should have the power to create law that would be immune from constitutional challenge is unclear: I discussed this here. What is clear, though, is that the Assembly wanted there to be no dispute about the power of the Parliament to make law for abortion. Why, then, did it recommend repeal rather than replace?
The concern about repeal
A simple ?repeal? would simply delete Article 40.3.3 from the Constitution, leaving constitutional silence about abortion. This is, actually, the most common scenario when we look at constitutions around the world. As Máiréad Enright noted here, it is quite rare explicitly to govern abortion through the constitutional text. Why, then, is there some doubt about whether or not to simply embrace constitutional silence in Ireland?
The main reason is that it is not entirely clear whether the foetus had constitutional rights before the 8th Amendment was inserted in 1983, if so how extensive those rights were, and whether they would still exist even if the text in Article 40.3.3 were removed. In other words, there is an arguable case that simple repeal would not make sufficiently clear that the Oireachtas can legislate for abortion, even to what many would consider a fairly extensive degree (as recommended by the Assembly), and that any law that might be passed would be struck down by the Courts for unconstitutionally interfering with foetal constitutional rights. It is very clear?and widely acknowledged?that this is an unlikely scenario, but it is a possible one. It is also possible, but unlikely, that a Court would say that removing Article 40.3.3 would create an unlimited right to access abortion so that no restrictions on abortion would be permitted (e.g. term limits, or grounds).
By far the most likely outcome is that abortion could simply be regulated in the same way as we regulate most things. That is: the Constitution would require that laws for abortion respect recognised constitutional rights, such as pregnant persons’ rights to privacy and bodily autonomy. However, in doing that the Oireachtas could interfere with these rights (or limit them, let?s say) provided (i) they did so in pursuit of a legitimate aim, and (ii) they did so in a manner that was proportionate.
In other words, the Oireachtas could limit abortion access in order to pursue the societal value of preserving foetal life, but would have to ensure that limitations did not disproportionately interfere with women?s constitutional rights. It would have to strike a balance, just as the Citizens Assembly recommendation suggests.
The options for replace
The argument for replace is, in broad terms, that a replacement provision might make it clearer to both the Courts and the Oireachtas how the balance is to be struck. There are a couple of ways this could be achieved:
Let me address each of these separately.
Expressly striking the balance by specifying grounds in the Constitution
This approach would involve saying that abortion was only permitted in specified cases. We might reasonably expect these to be at least rape, incest, ?fatal foetal abnormality?, risk to life, and perhaps (serious) risk to health. The provision might say either that the Oireachtas may or that the Oireachtas must make abortion available in these cases; the latter of course would exclude any realistic possibility of foot-dragging.
However, specifying grounds has a number of significant disadvantages. First, it requires the terms themselves to be defined in a way that makes them usable. Given that we have not managed properly to define ?unborn? in 34 years of jurisprudence on the 8th Amendment one wonders whether this is possible. Second, it is not clear how one would access abortion under these grounds?would you have to report a rape, for example?and there would be a possibility that legislation providing access to abortion would be struck down for making it practically impossible to access abortion even in these cases (by, for example, placing undue obstacles in the path of trying to exercise these rights). Third, it would tie the hands of the Oireachtas, which would not be able to respond to political, scientific, medical or other developments in order to make abortion more (or less) widely available in the future; that would require a referendum. Fourthly, it would simply not meet the needs of thousands of pregnant persons in Ireland who cannot access legal abortion in this country now. In other words, it would not solve the problem. It also would not enable the kind of legislative change clearly envisaged by the Citizens Assembly.
Clearly establishing that foetal constitutional rights do not exist or act such to prohibit the regulation of abortion
There are a few ways that a new constitutional text might make clear that the Oireachtas can legislate for abortion without being curtailed by legally enforceable, constitutional rights. The simplest is probably to insert a phrase such as ?Nothing in this Constitution shall prohibit abortion as provided for by law?. Such a phrase makes it clear that the Oireachtas is permitted to legislate for abortion, although it does not compel it. It also clarifies the situation vis-à-vis foetal rights, so that when legislating for abortion the Oireachtas has to simply take into account whether any legislation it is proposing properly vindicates the rights of pregnant persons. As already mentioned, it could pursue a societal aim of preserving foetal life, but in doing so it could not interfere disproportionately with women?s rights. This provision very simply, in other words, places abortion into the realm of ordinary decision making for the legislature: it makes it clear that it can be approached as an object of law-making in the same way as any other issue, while clarifying that the Oireachtas is not constitutionally constrained from providing for abortion access.
What this proposed provision does not do is expressly to mention or address the broader implications of the 8th amendment. The 8th amendment is part of a socio-legal tapestry of norms, practices and behaviours in medical and legal practice that means that, when pregnant, women often experience a broad disregard for their consent, autonomy, and self-determination, including in labour. There is an understandable concern to try to ensure that addressing the 8th Amendment also addresses these broader implications. However, the negative wording I have suggested above would allow that to happen. First, removing the 8th Amendment would remove the constitutional ?nudge? towards an approach to maternal medical care that means that so many women experience disempowering and disempowered pregnancies. Second, removing the 8th Amendment would return pregnancy to the realm of ordinary constitutional rights protection, so that pregnant persons would reach for and seek to assert constitutional rights (such as privacy or bodily autonomy) in order to resist repressive approaches to medical and health care relating to a pregnancy. Whether this would be sufficient materially to change practice would depend on the broader approach to implementing constitutional change: it will require not only legislation on abortion, but possibly also legislation on autonomy and pregnancy rights, and certainly practicing protocols and guidance for the medical profession, as well as training and engagement in rights-based approaches to maternal medical care. However, that would likely be the case regardless of the choice of words inserted into the Constitution.
Providing for an express, positive right to reproductive autonomy or health, or to self-determination in medical decision-making
One possible approach that has received remarkably little attention is to insert a positive right to reproductive autonomy or reproductive health in the Constitution. This was never proposed to the Citizens Assembly, even though it exists in numerous constitutional orders around the world. Such a right would positively compel legislative change to ensure that autonomy was guaranteed during pregnancy (including labour) and, indeed, in relation to questions of becoming and staying pregnant. Such a right would ensure, thus, that the constitutional change ?reaches? the broader socio-legal implications of the 8th Amendment. It would also allow for the limitation of abortion access again provided that was done in pursuit of a legitimate aim (such as the preservation of foetal life) and in doing so only interfered proportionately with the right to reproductive autonomy/health as protected by the Constitution. In many ways, this option is both the least considered and the neatest approach to remedying the perceived difficulties with the 8th Amendment.
Repeal or replace?
Whether one favours repeal or replace very much depends (a) on how concerned one is about the uncertainty that might arise in the case of repeal, (b) what the wording of the proposed replacement is, and (c) how one interprets the political situation in which a referendum is likely to take place. If one is sufficiently concerned about the uncertainty that might arise, wants to propose something that they consider is likely to garner the support of much of the political class (which would then campaign for it, one assumes), would provide reasonably certain parameters for legislative action, and would enable the assertion of rights during pregnancy beyond abortion, then replacement with something like the ?Nothing in this Constitution?? provision would seem most likely to fit the bill. However, the gains are somewhat marginal when compared with a simple ?repeal? provision. The only question is whether the political establishment will (a) take a hyper-literal approach to the Assembly?s recommendation, and (b) be prepared to make the positive argument that express regulation of abortion law does not belong in the Constitution. As the Committee on the 8th Amendment prepares to finish its first module?on matters of constitutional design?tomorrow, the preliminary answers to these questions should begin to become clear.
Fiona de Londras - Thu Sep 28, 2017 20:14
Fiona de Londras @fdelond In yesterday?s hearing of the Committee on the 8th Amendment to the Constitution talk turned to the idea that a new constitutional provision might be crafted and introduced which would provide that any law on abortion would be immune from constitutional challenge. In his presentation to the Committee, David Kenny made it clear […]
Fiona de Londras @fdelond
In yesterday?s hearing of the Committee on the 8th Amendment to the Constitution talk turned to the idea that a new constitutional provision might be crafted and introduced which would provide that any law on abortion would be immune from constitutional challenge. In his presentation to the Committee, David Kenny made it clear that this was what he took the Citizens? Assembly to have meant by its recommendation. In my evidence I posited a different interpretation, namely ?as a proposal designed to make explicit the power to legislate for abortion to the extent recommended in the legislative proposals made by the Assembly?. On reflection, either understanding is probably sustainable. Reading the transcripts of the Assembly again, I still consider that the concern with ensuring the Oireachtas had ?exclusive? competence to make law for abortion was intended to ensure absolute clarity about the power to legislate for the issue, but it could also be interpreted as saying that in doing so the Oireachtas should be empowered to make a law that would be immune from constitutional review. If the latter interpretation were pursued, would this be desirable and what would be the implications?
What would it mean?
To immunise abortion law from constitutional review would mean, in practical terms, that the Oireachtas could make legislation through the ordinary political process and that this legislation could not be struck down by the Courts; they simply would not have the competence to consider questions of its constitutionality.
Were the Oireachtas so minded, it could change the legislation through the ordinary process in the future. In that way this is preferable to entrenching legislation in the Constitution (as was proposed in 2002) where even a technical change couldn?t be made without a referendum. However, it would mean that if a pregnant person considered that her constitutional rights to, for example, privacy or bodily integrity entitled her to access abortion in a situation not provided for in legislation she could not go to the courts to vindicate her rights. Similarly, someone who considered the legislation to violate foetal rights, or tried to establish foetal rights in respect of abortion, could not mount a constitutional challenge.
It would, in short, require us to put complete faith in the Oireachtas to legislate in a manner that balanced interests, vindicated women?s and pregnant persons? rights, and was rational and proportionate.
Why might this be considered a good idea?
The attractiveness of this approach is largely that it seems like a means of managing uncertainty.
Legal certainty has been a recurring theme in conversations on the 8th Amendment in recent weeks and months, and Máiréad Enright dissects the issue excellently here. The real issue is that nobody can say with absolute certainty whether foetal constitutional rights would survive a repeal of the 8th Amendment and, if so, what (if any) scope for legislating for abortion access the Oireachtas would have. In reality, even if constitutional foetal rights were recognised, there would still be scope for abortion legislation to be introduced. Even in Germany, where the Constitutional Court has recognised a prenatal right to life, abortion on request within the first trimester is constitutionally permissible, although pre-abortion counselling is mandatory. The Constitutional Court has found that the requirements imposed to access abortion, as well as the time limit, are sufficient to vindicate foetal constitutional rights. There is no reason why such an outcome might not also be possible in Ireland.
Similarly it might be considered that the foetus has no constitutional rights and the pregnant person has an unlimited right to access abortion so that no restrictions at all would be permissible. That is also unlikely, not least because the relevant rights (privacy, bodily integrity and so on) are not absolute; they can be limited in pursuit of a reasonable objective but the limitations cannot be irrational or disproportionate. This is more or less the approach taken in lots of states where the constitution is silent about abortion (e.g. the ?undue burden? approach in the USA) and even in some places where the Constitution acknowledges that prenatal life is worthy of protection (e.g. the Slovak Republic).
In spite of how unlikely these outcomes are, they are still a worry. The reason should be clear. Imagine a situation in which there is a referendum, the referendum is passed, the Oireachtas passes law (and there is little doubt that would be a very difficult and charged process), and then the Supreme Court strikes the law down. Where would that leave abortion availability in Ireland? Would the political process start again? Or would medics, public authorities, and pregnant persons in Ireland flounder in a sea of complete practical uncertainty? EDIT: Alternatively (and this is a point made to me in discussing this matter with Mairead Enright after my original posting) would medical regulators construct a system for the professional regulation of abortion care provision to fill the vacuum left by legislators, as happened in Canada?
The anxiety that these eventualities cause?particularly among politicians who experience intense pressure in respect of abortion?is understandable. While the possibility of undue uncertainty arising is fairly modest in real terms, this simply might not be a risk people (or politicians) are willing to take. The argument goes that immunising legislation from constitutional review would resolve that: the Courts would not have the competence to strike the law down no matter what it said, and so there would be certainty (or, maybe, stability is a better word) and politics alone would determine the content of abortion law.
Why might it be a poor idea?
David Kenny rightly noted that a small number of things are already immunised from constitutional review in Ireland so we know that such an approach is legally permissible. Bernard Durkan TD yesterday implied that it might not be politically possible, but that is a somewhat separate question. However, what is possible is not necessarily desirable. There are at least two reasons why this approach might be a poor idea.
First, as a matter of principle the ordinary or default position is that the legislature makes law, is required to make law that is constitutional, and is ?checked? in that by the judiciary. To depart from that general position must, it seems to me, have a compelling rationale. In the course in the evidence before the Committee yesterday Kenny noted that judicial intervention on abortion has caused great controversy elsewhere, and no doubt that is true. But judicial intervention in lots of areas causes controversy: consider findings that statutory rape was unconstitutionally defined, or that asylum seekers have a right to seek employment. These are hardly uncontroversial issues or interventions.
In some other areas we immunise for reasons of institutional self-organisation (e.g. some matters relating to process in parliament) or emergency management; here it is simply considered that there is a superior institutional capacity in the Oireachtas and/or the Executive because of either the nature of the issue or the context in which decisions are being taken. It is difficult to see why legislating for abortion should fall into this kind of category.
Of course, abortion is an emotive and difficult issue for many, and I have no doubt many law makers struggle to reconcile their personal views with their duty to represent their constituents, and to pursue the common good while fulfilling their constitutional duty to vindicate individual rights. ?Getting it wrong? on abortion also has serious potential consequences: either an abortion law regime that is much more extensive than was intended, or the enforcement of severe limitations on the autonomy on pregnant persons. However, every day legislators, ministers and regulators make decisions that have life and death implications, that increase or dramatically reduce people’s material well being: drug funding schemes for the HSE, housing budgets, child benefit, elder care, rules of asylum and so on. These are also serious and morally difficult questions: how do we balance out and prioritise multiple claims on limited means, all of which have to do with basic well being and may cause severe suffering if misjudged? To immunise abortion from constitutional review suggests that it is uniquely or particularly difficult so that the Oireachtas has a particular competence (institutional or topical), or that the context is such that judicial intervention ought not to be facilitated. In the very best of faith, I fail to see what that justification would be.
Second, it would cut out an important avenue for asserting legal rights. At the moment we accept that sometimes the Oireachtas might misjudge where the constitutional limits lie, although usually they don’t and we start from a presumption of constitutionality. However, if we think that the state is acting unconstitutionally we have a mechanism to assert that claim, get a definitive assessment, and then secure a remedy. That mechanism is constitutional review before the courts. Removing that mechanism means that there would be no way to assert a constitutional misjudgement at the national (i.e. ?domestic?) level except through politics. Rather than engage the courts, people would need to make their cases exclusively through lobbying, advocacy, voting, and the threat of removing politicians who we considered disregarded our rights and interests. This might succeed in bringing about legislative change, but it does nothing to recognise or remedy constitutional wrongs.
Should abortion legislation be immunised from judicial review following a referendum the Oireachtas could pass a law prohibiting abortion in all cases and it could not be challenged; nor could a law allowing abortion on request up to term. Neither of these is a realistic prospect, but they serve to illustrate the point I am making here: constitutional rights could be overridden, violated, and disproportionately limited and there would be nothing that a person could do about that.
Of course, it would mostly be women whose constitutional rights were placed in this kind of purdah. While they might be able to appeal to international human rights courts and institutions to assert their internationally protected rights, and to Irish courts under the ECHR Act 2003 to assert their Convention rights, their constitutional rights would be unenforceable. That is a rather extraordinary proposition.
Eoin Daly - Wed Sep 27, 2017 16:19
In the run-up to the Citizens? Assembly deliberations on abortion, there was a lot of discussion on the possibility of a ?compromise? or ?moderate? solution. Many envisaged (and feared) that instead of recommending outright repeal of the Eighth amendment, the assembly would instead recommend inserting a replacement clause that would permit slightly less restrictive abortion […]
In the run-up to the Citizens? Assembly deliberations on abortion, there was a lot of discussion on the possibility of a ?compromise? or ?moderate? solution. Many envisaged (and feared) that instead of recommending outright repeal of the Eighth amendment, the assembly would instead recommend inserting a replacement clause that would permit slightly less restrictive abortion laws, but still enshrine specific, limited grounds for abortion. Indeed, such a supposedly moderate position was probably contemplated by the government as something that a mythical ?middle Ireland? might accept. Along with many others, I was adamant that it was a terrible idea to enshrine abortion restrictions of any kind at the constitutional level. This would have the effect of copperfastening a potentially oppressive regime for another generation.
And so the early debate was dominated by the question of ?repeal versus replace?. Ultimately many of us were surprised that the Assembly deliberations unfolded along very different lines. In the first place, the Assembly clearly rejected the idea of inserting any revised abortion restrictions within the Constitution itself, partly because the majority rejected such restrictions, bar time limits, full stop. However, it also declined to recommend straightforward deletion of the Eighth amendment, which has essentially been the demand of the prochoice movement to date. Instead, it seems to have been influenced by the view that the revised text of the Constitution, minus the ?eighth?, could still be interpreted as including residual rights for the ?unborn?, and that this could be used to challenge liberalizing legislation of the kind it recommended. Therefore, it recommended inserting a new constitutional clause which, in the working of the Assembly report, would clarify that it is ?solely? within the power of the Oireachtas to legislate on ?any rights of the unborn? and ?any rights of the pregnant woman?.
It seems this was intended to remove any lingering uncertainty over the constitutionality of liberalizing legislation. It isn?t quite clear, however, whether or not it would categorically rule out any constitutional challenges against such legislation, or simply reaffirm (and possibly strengthen) a sphere of discretion that the Oireachtas already has. That will depend on the ultimate wording of the amendment as decided by the Oireachtas.
What I want to address here is whether or not the prochoice movement should support this step, as against straightforward repeal. There is a risk, at the outset, that the Assembly recommendation might be interpreted as a ?compromise? on the repeal demand, and that going along with this is some kind of capitulation to the narrative of ?moderation?, and so on. The risk of confusion is heightened because of the language of ?replace? ? we always thought ?replace? would be a disastrous attempt at triangulation and leave us with something only slightly less oppressive than the existing regime. But we should be clear that what is proposed is still effectively ?repeal?. It does not acknowledge or mandate any specific restrictions on abortion whatsoever.
Instead, it seems that the proposed new clause was intended as helping to secure or safeguard the substantial aims of the repeal movement ?that is, of ultimately ensuring that legislation respecting bodily autonomy is put in place and sustainably maintained. The question worth addressing here is whether such a move is a necessary and effective way of achieving this.
My HRinI colleague, Mairead Enright, recently expressed a sceptical view on this move. In particular, she argues the following (this is my summary of her article):
I agree with some of this, and disagree with other parts. I agree that the risk of residual uncertainty in the Constitution, minus the eighth, is probably overstated by contributions such as Brian Murray?s presentation to the Assembly (which appears to have been particularly influential). It?s hard to overstate the degree of deference the Courts have, in recent decades, shown to the Oireachtas when it comes to controversial or ?sensitive? social issues. Various senior judges have said that it is up to the Oireachtas in the first instance to decide how constitutional rights are protected and how they are balanced against each other, and that the courts? function is only to intervene where the balance is disproportionate ? not to impose its own view. Also, the post-repeal Constitution would more than likely be read in light of the assumed ?intention? of the voters (an approach taken in Roche v Roche), meaning that the Courts would accept the people had intended to constitutionally permit abortion. In other words, notwithstanding the identical nature of the (relevant) text, the post-2018 Constitution would differ in meaning form the pre-1983 version because of that changed historical-political context.
However, on the remaining points I disagree. The fact that Brian Murray might be wrong, or that he overstated the uncertainty involved, is besides the point. His paper is probably a close reflection of what most lawyers and judges might think and say on the topic, and that is ultimately what will determine the constitutional narrative post-repeal. The problem is this: we may still face a situation where continuing constitutional arguments are overhanging the legislative process post-repeal, and we need to anticipate the likely political effects of that. Various narratives about what the Constitution means or might mean will have the capacity to affect or influence the shape of any eventual legislation, whether immediately in the aftermath of repeal of further in the future. Constitutional argument may well have a ?chilling effect?, if you will excuse the terrible cliché. And crucially, the wording of any replacement text might control or limit the extent of that chilling effect. And it?s in those terms, I think, that we should be debating the merits of any possible wording.
When people consider the likely effects of constitutional principles, they tend to think in terms of what courts might do ? whether or not they are likely to actually strike down legislation based on particular readings of constitutional law. But that is a very limited way of understanding constitutional law. The danger isn?t necessarily that judges will curtail progressive abortion laws ? although it?s possible ? instead, it lies in the various ways in which constitutional arguments are weaponised completely outside of the judicial process.
The authoritiatve constitutional narrative ? that is, authoritative narratives about what the Constitution means and what it requires, are not only shaped by judges and lawyers arguing in courts. They are also made, sometimes to great effect, within the political and legislative process itself, and particularly by the office of the Attorney General. In essence, the Attorney General has the ability to influence the legislative process through readings and interpretations of constitutional law which although not theoretically binding, carry a certain authority in a real sense.
And this has a stultifying, conservative effect. We very often encounter situations in Irish politics where very contestable readings of constitutional law are invoked, usually by the Government, to resist modestly progressive legislative reforms. We see this effect in areas like equality law, which is constitutionally limited by religious freedom, in housing reform, which is constitutionally limited by property rights, and in school admissions law, which is limited by the constitutional rights of religious denominations ? and so on. Many people understand that constitutional case law can have both negative and positive effects, that is, it can overturn both good laws or bad laws. Constitutional-rights law is not intrinsically a good thing; it is only good insofar as it procures good outcomes, whatever that might mean. But the negative effects of constitutional law are not confined to bad judgments. Instead, we must account for the various ways in which constitutional law structures and disciplines political argument and determines the range of legitimate inputs ? and particularly how it empowers experts, disarms the ?lay? interlocutor, and leads to a kind of mystification by framing politically issues in esoteric legal terms. It generally entails a kind of expert mystification of political conflict. A vast plethora of social issues can be framed as something like a ?conflict of constitutional rights?, at which point the issue purports to pass from the political into the legal domain, and the social and political authority of lawyers is enhanced.
That style of legal argument is, in my view, intellectually bogus. There isn?t really any legally ?correct? answer as to what the Constitution means in many instances ? there are multiple possible interpretations that are potentially authoritative or persuasive depending on context and so on. There is no scientific truth in the matter, accessible to trained experts, which is how law is often depicted. But the fact that this is true is besides the point, because what matters is that this style of constitutional argumentation is weaponised very effectively in our politics. It carries a very definite institutional and social authority ? we should take this effect seriously
If we have the chance, then, should we not try to take such issues outside the mystifying, esoteric world of constitutional discourse – a strange world where experts conduct an intellectual pleasing, but politically sterile exercise in exchanging rival interpretations that are deeply political and ideological but are supposed to carry some kind of special authority? I think that is what the recommendation of the Assembly is getting at ? it?s an attempt to remove the issue of abortion rights out of the shadowy, obscure world of constitutional argumentation. My starting assumption is that that aim is a good one.
It might be objected that there is potentially a competing prochoice constitutional narrative, based on the privacy and autonomy rights of pregnant women, that could be invoked against restrictive or oppressive legislation, and that neutralizing the Constitution in the manner proposed squanders that opportunity. Why not accept the reality of constitutional ambiguity, but try to harness and instrumentalise it for prochoice ends? Unfortunately, I think, that kind of argument is attractive in the abstract but is unlikely to bear any fruit in the legal and political landscape that we actually inhabit. As much as liberal lawyers might relish the challenge, few people who are familiar with the workings and outlook of the Irish Supreme Court will realistically expect an Irish-style Roe v Wade any time soon. The legal and judicial world is a fairly conservative place. It is an unlikely source for radical social and political change, despite the limited phase of liberal activism that occurred in the 1960s and 1970s, and whose effects are romantically overstated. On the whole, judicial review tends to have a status quo bias and at best, only mitigates the worst elements of social justice while tending more fundamentally to shore up the legitimacy of the social order. Mairead Enright?s piece hints that there is something disturbing about excluding a particular category of legislation from constitutional challenge. I don’t agree with this, because I don?t believe that having access to a judge who can review the constitutionality of parliamentary legislation is an instrinsic hallmark of freedom or democracy or whatever. It can have good or bad effects depending on context – remember, the wealthy and powerful have constitutional rights too, and are good at enforcing them. Its overall net effects in any society are always a little unclear ? I believe that in this society the net effect is a conservative one, for reasons I explain here.
For these reasons, the question of whether we exclude abortion laws from constitutional challenge should be approached on a purely tactical basis, not based on its intrinsic rightness or wrongness. I could be wrong about where the balance of risk lies, tactically speaking, but we should dispense with myths about the intrinsic importance of judicial review as such.
Having said that, it is still unclear whether the assemble recommendation actually intends to exclude constitutional challenge post-repeal, or simply reaffirm and possibly strengthen the sphere of discretion the Oireachtas would ordinarily enjoy in any event. For what it?s worth, I would be wary of the political effects of fully excluding judicial review, simply because this might create an appearance of giving politicians carte blanche or leaving them unchecked. It creates a political risk that is better off avoided. On the other hand, the wording of the assembly report is unfortunate in referring (unnecessarily) to ?any rights of the unborn?, which (if used in the actual amendment), might have the (probably unintended) effect of indirectly re-enshrining foetal rights albeit in a lesser form. Instead, I think, we should aim at a wording that neither categorically excludes constitutional challenges to legislation, nor refers to foetal rights, but still stems any possible weaponsiation of constitutional doubts post-repeal. A wording along the following lines would probably achieve that effect: Nothing in this Constitution shall be interpreted as precluding termination of pregnancy as provided for by law.
Máiréad Enright - Thu Sep 21, 2017 10:57
Mairead Enright @maireadenright The Oireachtas Committee on Repeal of the 8th Amendment met publicly yesterday for the first time. Ms. Justice Laffoy presented the report of the Citizens’ Assembly, and took questions on its content. The media, in reporting on the Committee?s proceedings, have focused on Laffoy?s efforts to defend the legitimacy of the Assembly […]
Mairead Enright @maireadenright
The Oireachtas Committee on Repeal of the 8th Amendment met publicly yesterday for the first time. Ms. Justice Laffoy presented the report of the Citizens’ Assembly, and took questions on its content. The media, in reporting on the Committee?s proceedings, have focused on Laffoy?s efforts to defend the legitimacy of the Assembly process. In doing so, they have missed a crucial aspect of yesterday?s exchanges: the focus on ?legal certainty?. As is well known by now, the Assembly recommended replacement of the 8th Amendment, rather than simple repeal. They explicitly voted against replacing the 8th Amendment with another clause expressly dealing with abortion or with the balance to be struck between the rights of the pregnant person and the foetus they are carrying. They recommended a different kind of replacement. Yesterday was an opportunity to clarify why the Assembly had departed from the clear and readily-comprehensible legal and political demand articulated by the Repeal campaign, and to discuss the substance of what they had proposed instead.
The Report of the Citizens? Assembly is ambiguous on this point. It explains that the Citizens were concerned that Repeal simpliciter would generate an unacceptable measure of constitutional uncertainty, around the rights of ?the unborn? in particular. Brian Murray SC, in a perhaps uniquely influential presentation to the Assembly, had set out three possible consequences of Repeal. A future Supreme Court, dealing with a challenge to post-repeal abortion legislation could come to one of 3 broad positions:
In Questions and Answers later, Brian Murray confirmed that he thought that Option 1 was the most likely outcome of repeal. In view of the deference which the courts habitually show to the legislature, especially on ?contested moral issues?, this was sound advice. However, the Assembly process did not stop at ?most likely?. Yesterday, Laffoy J confirmed that, in voting for Replace, the Assembly effectively voted to copper-fasten Option 1 as the only possible outcome of removing the 8th Amendment. They were concerned that the consequences for future abortion legislation of Options 2 and 3 (which could be understood as reverting to the pre-1983 position) were too unpredictable. It was not possible to say with precision which constraints the implied rights of the woman and the unborn might place on legislation.
Neither Option 2 nor Option 3, in principle, precludes more liberal abortion legislation, because protection of foetal life, whatever form it takes in the constitution after repeal, will not be absolute. In addition, as is hinted at in Brian Murray?s paper, Options 2 and 3 are not really separate options. A Supreme Court would not have to choose between either the rights of the unborn or those of the mother. These rights should be read harmoniously, and ideally relationally, together. The Supreme Court (and indeed, every other body charged with interpreting the Constitution, including the Oireachtas itself) would have to decide on the appropriate balance to strike between them. Courts in Portugal, Germany, Colombia, Canada and the United States have all engaged in similar balancing acts. It is not possible, of course, to say with precision how the Irish Supreme Court would evaluate abortion legislation under Option 2, Option 3, or some combination of the two. We don?t yet know what post-repeal abortion legislation would say. We don?t yet know who, if anyone, would bring the case to challenge it, or whether it would be examined in an Article 26 reference. So we don?t know what fact pattern the Court would have before it. However, that level of uncertainty is quite ordinary in a constitutional context. The difficulty it creates has been over-stated. For the purposes of legislative reform, we can still make judgment calls about likely outcomes, based on prevailing jurisprudence, precedent and working knowledge of judicial reasoning and conventions. It would have been possible for the Assembly?s experts to give the members time to think about what possible ?balances of rights? look like, and to establish the sort of working tolerance of uncertainty that characterises the working lives of constitutional lawyers and the judiciary. However, at no stage was the Assembly given detailed information on how courts in other jurisdictions have engaged in such ?balancing acts?, or given the opportunity to apply the outlines of a post-repeal constitution to real-life problems or case studies. No such steps were taken to empower the Assembly by grounding abstract constitutional questions in concrete cases. All of these questions were black-boxed, and the black box labelled ?Legal Uncertainty?.
It is worth pointing out at this stage that Options 2 and 3 can be read as returns to the pre-1983 position (although we could expect, of course, that a Supreme Court deciding a case in 2018 would take account of the enormous social changes that have taken place in Ireland since 1983, and interpret and balance the competing constitutional rights accordingly.) Options 2 and 3, or some combination thereof, represent the post-McGee constitutional position which PLAC, William Binchy and other supporters of the 8th sought to de-commission when they agitated for constitutional reform in 1983. In 1983, some combination of Options 2 and 3 was the anti-amendment, pro-choice status quo. Of course, in seeking to close off Options 2 and 3, the Assembly was not aligning itself with those movements. Rather, as we can deduce from its later, liberal, legislative recommendations, the Assembly wanted to preserve space for pro-choice law-making in line with European norms. Replace is intended to defend that space in ways that, as the majority of Assembly members saw it, Repeal could not.
Yesterday Ms Justice Laffoy was asked five times, in various ways, to justify the recommendation to Replace rather than Repeal, and to explain what additional advantages Replace might confer on our constitutional structures. Was Replace simply, as Ailbhe Smyth has observed, ?the Irish for Repeal?: a replacement which removed the 8th Amendment and confirmed the Oireachtas? existing ordinary power to pass legislation which attracts a presumption of constitutionality? Or did Replace promise another level of security? The Assembly report, rather confusingly, suggested that replace would confer ?exclusive? authority on the Oireachtas to legislate for abortion, and to exert ?total control? over its regulation. Similar language was used during the Assembly proceedings to reassure members of the Assembly who were uncertain about what they had voted for. ?Exclusive? and ?total? might have suggested that Replace would somehow (in an unprecedented move) immunize any new abortion legislation from constitutional challenge in the courts (perhaps a fine outcome if you ignore the potential for unintended consequences and imagine that the Oireachtas will pass workable legislation?but a less enticing one if you imagine that it will produce something along the lines of the PLDPA 2013, replete with opportunities for exposing pregnant people to inhuman and degrading treatment). Yesterday Ms Justice Laffoy confirmed that the Assembly in voting Replace was not suggesting that the constitution should be amended to exclude the courts from law-making around abortion. The rights of pregnant people seeking to terminate a pregnancy should not be cast out of the sphere of constitutional interpretation.
So what does Replace do to achieve additional certainty? Ms Justice Laffoy was asked five times. Besides saying that it was important that the Oireachtas do its utmost to create legislation which would pass constitutional muster and not be struck down within ?weeks?, she could not offer further clarity. She encouraged the Committee to get legal advice on the issue, and expressed her hope that their deliberations would confer ‘legal certainty’ on the abortion problem. I am not suggesting that the Assembly?s role was to draft a replacement for the 8th Amendment, but at the very least its Chair should have been able to explain what the constitutional amendment it proposed means in broad constitutional terms. At the end of yesterday?s questioning, it seemed clear that there was no material legal difference between Replace and Repeal, and no justification for adding new text to the constitution. It may be, certainly, that additional text in the constitution re-affirming the Oireachtas’ ordinary legislative power could help to block any judicial attempt to strike down new legislation, but it is hard to quantify the strategic value of that additional text over and above simple repeal. It is also telling that this form of Replace was offered to the Assembly – Brian Murray also suggested a possible substantive amendment removing the right to life of the unborn from the Constitution.Time could have been given to pro-choice substantive amendments, but instead, consistent with the Assembly’s official aspiration to neutrality, a technical substitute was chosen.
Now, we can read Replace differently, not as a message from the Assembly to the courts, but as a message from the Assembly to the Oireachtas. Arguably one of the chief chilling influences on abortion law reform in Ireland has been governments?, and successive AGs?, own interpretations of the constitution ? we have seen this most clearly in the Oireachtas? repeated refusal to legislate to open up access to abortion in cases of fatal foetal abnormality. The Assembly wanted to send a clear message to the Oireachtas that it should not seek to hide behind restrictive constitutional interpretation; using it as an excuse to reject passing legislation along the lines the Assembly had recommended. But there is no constitutional formula that can compel the Oireachtas to legislate in any particular way. Abortion law reform is now, as always, at the Oireachtas? door, and technocratic and alienating discussion of ?legal certainty? and silver bullet constitutional devices, however entertaining it is for constitutional scholars, only serves to distract from that political issue.
I think Replace – a white elephant with magical affective powers but no particular legal contribution to make – is a symptom of a broader deficiency in Irish legal discourse around abortion. ?Legal certainty? has become a motivating idea in Irish abortion law reform because it neatly combines a framing of women?s bodies as uniquely chaotic, with a promise that the right formula of words can bring that chaos under control. In this sense, it is no accident that a judge was considered the ?appropriate woman? to lead ?us? through the abortion law reform process. We have relied on her, and on other judges ? notably Yvonne Murphy and Maureen Harding-Clarke ? to bring ?closure? to other disputes around women?s bodies in historical cases of abuse and bodily harm. It may be, in the end, that the primary function of Replace was to provide symbolic closure, and in particular, to suggest a level of careful contemplation of constitutional technicalities which distinguishes the ‘reasoned’, balanced, ‘informed’ and ‘civil’ deliberations of the Assembly from stereotypes of the pro-choice movement.
For the Assembly members, ?legal certainty? is a pro-choice idea ? a brake on the Oireachtas? historical and embedded cowardice. However, their Replace proposal is too vulnerable to an impossible politics of legal certainty. It is at risk of co-option ? of becoming, as it did during the PLDPA debates, a proxy for more conservative desires. When a TD says ?legal certainty? he may be expressing solidarity with doctors who profess themselves to be afraid of criminalisation. He may be expressing a weary desire to ?future proof? the constitution so that he will never to have to talk about abortion again between now and retirement. He may be expressing a refusal to ?trust women?; a horror of ?abortion on demand?. If these inarticulate desires, gathered under the rubric of ?legal certainty? become the golden thread connecting the Committee?s constitutional and legislative discussions then the Oireachtas will struggle to produce decent, workable legislation. Instead, it must do as the Assembly?s hard-working and sincere members tried to do despite the shortcomings of its process; to come down out of the realm of constitutional abstraction and think about ?legal certainty? as concomitant with legislative freedom and responsibility. Unlike the Assembly, the Oireachtas Committee is willing to hear testimony from expert reproductive rights lawyers. There is finally space to think about ?legal certainty? as a feminist value; one affirming pregnant people?s rights to access abortion and other medical treatment in pregnancy in a transparent, secure manner, using processes supportive of their decisional autonomy. There is a chance to avoid subjecting pregnant people to the sort of opaque, incoherent and unsettling governing legislation we passed last time out. We can only hope the Oireachtas is ready to take it.
 No consideration was given to the locus standii of the unborn, which presents a real danger to liberal abortion legislation.
 This option could, of course, have leant persuasive, if not determinative weight, if the 8th were replaced with a positive right to self-determination in pregnancy. This possibility was not discussed with Assembly members. Instead discussion of bodily autonomy was relegated to the Assembly report?s ancillary recommendations.
 We could find an analogy for this sort of effort in the failed Twenty-Fifth Amendment to the Constitution in 2002, which would have enshrined abortion legislation in the Constitution and made it impossible to change without a new referendum ? indeed Ms. Justice Laffoy mentioned this briefly yesterday.
admin - Sat Jul 29, 2017 18:49
We are pleased to welcome this guest post from Aisling McMahon and Brid Ni Ghrainne. Abortion is only permitted in Ireland when the life of the mother is in danger, making the Irish abortion framework one of the most restrictive in the world. This week, the Committee Against Torture questioned Ireland about its lack of progress […]
Abortion is only permitted in Ireland when the life of the mother is in danger, making the Irish abortion framework one of the most restrictive in the world. This week, the Committee Against Torture questioned Ireland about its lack of progress in reforming Irish abortion law and stated that it must explain its human rights obligations to the Irish public before any referendum on abortion. This comes as little surprise as the Irish framework has previously been criticised extensively by four other international human rights committees. The Human Rights Committee has twice found ? in Mellet v Ireland and Whelan v Ireland ? that Ireland violated Art 7 (right against torture, inhumane or degrading treatment), Art 17 (right to privacy) and Art 26 (right to non-discrimination) of the International Covenant on Civil and Political Rights (ICCPR) for not providing access to abortions to women whose pregnancies suffered fatal foetal abnormalities. The Committee on the Elimination of Discrimination against Women, the Committee on Economic, Social and Cultural Rights, and the Committee on the Rights of the Child have also urged Ireland to change its restrictive abortion framework.
However, no changes have yet occurred. Instead, in response to the decision in Mellet v Ireland the then-Taoiseach Enda Kenny dismissed the Human Rights Committees? views as not being ?binding? and ?not like the European court?. This exemplifies the confusion that exists regarding Ireland?s international law obligations relating to access to abortion. In response to these recent developments, this post considers: (1) why Ireland should adhere to the views of the respective Committees, and (2) how Ireland can bring its laws into conformity with international law.
Ireland should adhere to the views of the Committees.
The views of the Committees should not be ignored for a variety of reasons. First, although the respective Committees cannot issue binding judgments, they are made up of a group of experts in human rights law and are mandated to provide authoritative interpretations of the respective treaties. Under the international law rule of pacta sunt servanda, Ireland must comply with treaties that it is a party to in good faith.
Second, Article 27 of the Vienna Convention on the Law of Treaties provides that: ?A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty?. This position was reiterated by the Human Rights Committee in the decisions of Mellet and Whelan, and it promptly dismissed the constitutional protection of the life of the unborn as justifying Ireland?s treatment of the respective women.
Third, a state?s international reputation is undermined by non-compliance with international treaties. For example, a State Party?s failure to implement the Human Rights Committee?s views: ?becomes a matter of public record through the publication of the Committee?s decisions inter alia in its annual reports to the General Assembly of the United Nations.? Relatedly, ignoring the views of such Committees, could lead to subsequent complaints being brought and subsequent violations being found, which increases reputational damage to the State.
Ireland?s International Law Obligations
The various Committees have called on Ireland to ensure access to abortion in three specific circumstances: (i) in cases of fatal foetal abnormality, (ii) where pregnancy is the result of rape or incest, and (iii) where the woman?s health or life is in danger. In respect of the latter circumstance, Ireland?s present laws do not provide for a right to an abortion where the health as opposed to the life of the mother is at risk and this has been raised as a concern. It should be noted that in highlighting these categories, we are not arguing that these are the only circumstances where abortion should be provided, rather we are arguing that these are the minimum circumstances which have been specified by the relevant Committees where a right to an abortion arises under international law. States have discretion to provide abortion in broader circumstances, and many states already do.
Various committees have also recommended that abortion be decriminalised in all circumstances in Ireland. Finally, the Committees have requested Ireland to clarify the information which can be provided in Ireland on abortion services abroad. Individuals seeking terminations abroad are often faced with a dearth of information on such services as health professionals cannot ?advocate or promote? terminations under the Regulation of Information (Services outside the State for Termination of Pregnancies) Act 1995.
Until Ireland brings its laws in line with its international obligations it will continue to receive criticism from the international community. It is crucial that the Irish public are made aware of these international law obligations so that they can exercise their right to vote in an informed manner when a referendum on abortion finally occurs.
 See Irish Family Planning Association, ?United Nations Torture Committee poses tough questions on Ireland?s abortion laws? (Press Release, 27th July, 2017) https://www.ifpa.ie/UNCAT-2017-2?utm_source=rss&utm_medium=rss
 See, Ellen Coyne, ?UN challenges Ireland on human rights before abortion vote? (28th July, 2017) The Times (Irish Edition) p. 1.
 This includes, the Human Rights Committee (HRC), the Committee on the Elimination of Discrimination against Women (CEDAW), the Committee on the Rights of the Child (CRC), and the Committee on Economic, Social and Cultural Rights (CESCR).
 ICCPR Human Rights Committee, Amanda Mellet v Ireland, 9 June 2016, UN Doc CCPR/C/116/D/2324/2013.
 ICCPR Human Rights Committee, Siobhán Whelan v Ireland, 12 June 2017, UN Doc CCPR/C/119/D/2425/2014.
 Pat Leahy, ?UN abortion ruling is ?not binding?, Enda Kenny says,? (15 June 2016) Irish Times available at http://www.irishtimes.com/news/politics/un-abortion-ruling-is-not-binding-end...
 Article 26, 1969 Vienna Convention on the Law of Treaties.
 See discussion in Síobhán Mullally, ?Mellet v Ireland: Legal Status of the UN Human Rights Committee?s ?Views? CCJHR Blog (16th June, 2016) available at http://blogs.ucc.ie/wordpress/ccjhr/2016/06/16/mellet-v-ireland-legal-status-...
 See General Comment No 33, The Obligations of States Parties under the Optional Protocol to the International Covenant on Civil and Political Rights CCPR/C/GC/33.
 Para 17, General Comment 33.
 This includes: Human Rights Committee views in Mellet v Ireland, Whelan v Ireland. See also, Human Rights Committee, Concluding observations on the fourth periodic report of Ireland CCPR/C/IRL/CO/4 (19th August, 2014) para 9; Committee on the Elimination of Discrimination against Women, Concluding observations on the combined sixth and seventh periodic reports of Ireland CEDAW/C/IRL/CO/6-7 (9th March, 2017) para 43 which recommended that terminations be legalised in cases of severe as opposed to fatal impairment of the foetus;
 This includes, the Committee on the Elimination of Discrimination against Women, Concluding observations on the combined sixth and seventh periodic reports of Ireland CEDAW/C/IRL/CO/6-7 (9th March, 2017) para 43. Human Rights Committee, Concluding observations on the fourth periodic report of Ireland CCPR/C/IRL/CO/4 (19th August, 2014) para 9. See also, the Committee on the Elimination of Discrimination against Women, Concluding Observations on the 7th and 8th periodic reports of Peru CEDAW/C/PER/CO/7-8, 24 July 2014.
 This includes concerns raised by the Human Rights Committee, Concluding observations on the fourth periodic report of Ireland CCPR/C/IRL/CO/4 (19th August, 2014); Committee on Economic, Social and Cultural Rights, Concluding observations on the third periodic report of Ireland (2015) E/C.12/IRL/CO/3.
 This includes: Committee on the Rights of the Child, Concluding observations on the combined third
and fourth periodic reports of Ireland CRC/C/IRL/CO/3-4; Committee on the Elimination of Discrimination against Women, Concluding observations on the combined sixth and seventh periodic reports of Ireland CEDAW/C/IRL/CO/6-7 (9th March, 2017) para 43. The Committee on Economic, Social and Cultural Rights, Concluding observations on the third periodic report of Ireland (2015) E/C.12/IRL/CO/3 and the Human Rights Committee, Concluding observations on the fourth periodic report of Ireland CCPR/C/IRL/CO/4 (19th August, 2014) which expressed concern over the criminalisation of abortion.
Fiona de Londras - Thu Jul 20, 2017 10:54
The Irish Yearbook of International Law is now accepting submissions for the next Volume (Volume XIII (2018)). Edited by Professor Siobhán Mullaly (incoming at NUI Galway) and Professor Fiona de Londras (University of Birmingham) and published by Hart Publishing, the Yearbook is internationally peer reviewed and publishes longer and shorter articles on all areas of international law. The Irish Yearbook […]
The Irish Yearbook of International Law is now accepting submissions for the next Volume (Volume XIII (2018)). Edited by Professor Siobhán Mullaly (incoming at NUI Galway) and Professor Fiona de Londras (University of Birmingham) and published by Hart Publishing, the Yearbook is internationally peer reviewed and publishes longer and shorter articles on all areas of international law. The Irish Yearbook of International Law is committed to the publication of articles of general interest in international law as well as articles that have a particular connection to, or relevance for, Ireland. Articles are usually 10,000 to 12,000 words in length, although longer pieces will be considered. The Yearbook also publishes a small number of shorter articles and notes, which should not exceed 6,000 words.
Authors are asked to conform to the Hart Publishing house style. Submissions, comprising a brief 100-word abstract, article and confirmation of exclusive submission, should be sent to both Siobhán Mullally (email@example.com) and Fiona de Londras(firstname.lastname@example.org) by October 31 2017. Initial enquiries can be directed to either or both Editors.
People wishing to review a particular title in the Yearbook?s book review section are also invited to contact the book review editor Dr. Dug Cubie, email@example.com (University College Cork.)