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Reforming Irish abortion law

Available Open Access under CC-BY licence.

Irish law currently permits abortion only where the life of the pregnant woman is at risk. Since 1983, the 8th Amendment to the Constitution has recognised the “unborn” as having a right to life equal to that of the “mother”. Consequently, most people in Ireland who wish to bring their pregnancies to an end either import the abortion pill illegally, travel abroad to access abortion, or continue with the pregnancy against their will.

Now, however, there are signs of change. A constitutional referendum will be held in 2018, after which it will be possible to reimagine, redesign, and reform the law on abortion. Written by experts in the field, this book draws on experience from other countries, as well as experiences of maternal medical care in Ireland, to call for a feminist, woman-centered, and rights-based radical new approach to abortion law in Ireland.

Directly challenging grounds-based abortion law, this accessible guide brings together feminist analysis, comparative research, human rights law, and political awareness to propose a new constitutional and legislative settlement on reproductive autonomy in Ireland. It offers practical proposals for policymakers and advocates, including model legislation, making it an essential campaigning tool leading up to the referendum.

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The 8th Amendment to the Irish Constitution was ratified in 1983,1 and provides—in the form of Article 40.3.3—that:

The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.

At first glance, the 8th Amendment may seem innocuous or merely aspirational. However, over time this provision, which could have been read in dozens of ways, has come to ground a near-absolute prohibition on abortion in Irish law.2

The 8th Amendment treats the foetus as a constitutional person, separate from the pregnant person to the extent that it is entitled to its own legal representation, and with a right to life exactly equivalent to hers.3 The constitutional concept of ‘life’ has been interpreted restrictively. Rather than recognise the 8th Amendment as protecting life in all its richness and depth, successive courts and governments have been content to assume that it only protects the bare condition of being alive.4 Those other rights that confer dignity and meaning on life—rights to privacy, equality, bodily autonomy and so on—have been excised from the law on abortion by prevailing interpretations of the 8th Amendment. The moment we become pregnant, our constitutional rights are subordinated to the right to life of the unborn and circumscribed by the constitutional status of ‘mother’.5 There are two points here. First, the Amendment’s concentration on life as mere survival has stripped the ‘as far as practicable’ clause of the 8th Amendment of its potential to rationalise abortion law and policy in Ireland.

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As we saw in Chapter 1, the 8th Amendment was and is a deliberate and extraordinary attempt to defend a conservative idea of the Constitution against the anticipated effects of social change. It was inserted to prevent the ordinary development of constitutional rights, specifically reproductive rights, within a ‘living’ constitutional text. Over time, this rot has taken hold at all levels of the constitutional law on abortion, producing a body of abortion law that is obstinately resistant to change. The stability of this constitutional order has meant the steady oppression of pregnant people. It is crucial that, in reforming that law, we abandon the damaging urge to seek ‘legal certainty’, essentially inherited from the Pro-Life Amendment Campaign, and reopen abortion law to our ordinary, if flawed, processes of constitutional interpretation. In this chapter, we set out an agenda for how that might be achieved.

The Joint Oireachtas Committee on the Eighth Amendment was established to consider the recommendations of the Citizens’ Assembly, and to advise the Oireachtas on constitutional and legislative abortion law reform. Like the Assembly, the Committee accepts that constitutional space must be made to liberalise abortion law. The only way to do that is through a referendum,1 and voters must be presented with a simple proposition to which they can vote ‘yes’ or ‘no’.2 The Committee has considered six options for constitutional reform. These are as follows:

  1. Simple repeal of the 8th Amendment.

  2. Simple repeal of the 8th Amendment, and publication of draft or outline legislation liberalising abortion access before the referendum.

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If the 8th Amendment were no longer part of our constitutional order, we would have the opportunity to redesign our approach to abortion law in Ireland. In this chapter, we address the possible shape and nature of a rights-based approach to abortion. Drawing on international human rights law, as well as on constitutional reproductive rights law in other countries, we consider the ways in which the constitutional rights ordinarily enjoyed by all persons in Ireland might be developed in the context of pregnancy. We also consider the state’s powers to regulate abortion while respecting those rights.

Repealing the 8th Amendment would not automatically create an unlimited constitutional right to access abortion.1, it would generate opportunities to develop existing constitutional rights by recognising that the protection of constitutional rights requires access to lawful abortion in a range of circumstances. Since 1983, all questions about reproductive justice have been routed via the 8th Amendment and, therefore, folded into a concern with bare biological life; with keeping women and foetuses alive.2 Under the 8th Amendment, once a woman becomes pregnant, the rights she can usually assert under the Constitution—to privacy, to bodily integrity, to equality—are subordinated to the right to life of the foetus. It is not that she no longer holds these rights, but that they are weakened by the foetus’ right to life; she cannot assert a right to do anything that might endanger that life. In practice, this means that, at least in the context of abortion, those constitutional rights are held in abeyance: they have not been developed or interpreted by the courts in the context of pregnancy.

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Chapter 3 outlined possible routes to developing pregnant people’s constitutional rights in Ireland after removal of the 8th Amendment. This chapter sketches how those rights could be implemented in legislation. We explain why abortion-specific legislation would be needed even if the 8th Amendment were to be removed from the Constitution. The bulk of this chapter outlines the kind of legislation that should replace the Protection of Life During Pregnancy Act 2013 (PLDPA). The Citizens’ Assembly recommendations1 form the backbone for our proposed replacement, but we amend and adapt them where necessary to give better effect to the rights that we have set out in Chapter 3. We begin with discussion of legislative provisions that ensure access to abortion, before considering the circumstances in which the Assembly recommended that pregnant people should be able to access abortions in Ireland. We depart from the punitive and stigmatising legal frameworks developed under the 8th Amendment, learning from other jurisdictions2 and from the failures of the PLDPA.

Achieving our goals requires a clean break with the PLDPA. Even if repeal were to be endorsed in a referendum, pregnant people’s ability to actually access abortion care would not be transformed on the day that the constitutional change became law. As we showed in Chapter 3, it is quite possible that the PLDPA would be found unconstitutional following repeal of the 8th Amendment. It remains in place until and unless it is replaced or amended by the Oireachtas, or struck down by the courts in constitutional litigation. However, it will require replacement after repeal, and the sooner the better.

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In this chapter, we outline draft legislation, inspired by the Citizens’ Assembly recommendations, but adjusting them where necessary to give effect to pregnant people’s rights. The explanatory notes are light; our decisions are explained in more detail in Chapter 4, and we strongly advise that Chapters 4 and 5 are read together. The draft legislation shows that it is possible to design workable legislation that gives meaningful effect to the rights of pregnant people. We build here on previous model drafts that we have worked on with feminist academic colleagues,1 benefiting from the advice of activists and civil society actors in the process. Of course, as we argued in Chapter 4, legislation alone cannot achieve effective access to abortion care. That requires guidance, principles and an ethic of care that places pregnant women, their views, their opinions and their judgements about what is right for them at its centre. So, any legislation must be supported by rights-supporting interpretative aides and appropriate training. We think that legislation of this kind would make a real difference to pregnant people’s lives. To illustrate this, we include case studies, drawing on some stories offered in submissions to the Citizens’ Assembly. Although space does not allow for discussion of a comprehensive range of case studies, this selection shows how difficult cases would be addressed both under the current law and under our proposed legislation.

Our proposal broadly mirrors the legislative recommendations of the Citizens’ Assembly. We adopt the same time limits it proposed: 12 weeks, 22 weeks, and no time limit.

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For more than 30 years, women in Ireland have made and been denied reproductive choices under the shadow of the 8th Amendment. In this book, we have shown that this provision was designed precisely to deny reproductive autonomy and to freeze at a particular, illiberal time in Irish politics the ability of women to exercise control over their reproductive lives, of legislators to make law and policy on abortion, and of doctors to provide abortion care in accordance with their consciences, ethics and perceptions of patients’ best interests.

In the intervening 34 years, much has changed. The 8th Amendment now looks a relic when read against the backdrop of international human rights law, international best medical practice, and societal attitudes to sexuality, reproduction and choice in Ireland.

In this book, we have shown how a rights-based, agency-centred approach to the Constitution, to legislation, and to the relationship between doctors and patients can help to reinscribe constitutional rights and reproductive autonomy on experiences of pregnancy in Ireland. We have shown not only that making such law is possible and practicable, but also that it will be transformative only if it is accompanied by a shift in practical, political and legal disposition. This requires a rights-based approach to interpretation and application by medical practitioners, lawyers and courts, and a willingness by parliamentarians and courts to approach the regulation of abortion with a commitment to constitutionalism that recognises societal change, takes comparative experience and evidence seriously, and abandons the futile and potentially dangerous search for unattainable legal certainty.

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