Referendum should take abortion out of the courts

Even as Repeal has been the slogan of the campaign for our next abortion referendum, there is a good chance that the referendum proposed will not in fact be a Repeal of the Eighth Amendment.

The Eighth Amendment was approved by referendum by 65% in 1983 and added subsection 40.3.3º to the Constitution. Two further clauses were added to this subsection in 1992 by the Thirteenth and Fourteenth Amendments, such that it now reads:

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.

This subsection shall not limit freedom to travel between the State and another state.

This subsection shall not limit freedom to obtain or make available, in the State, subject to such conditions as may be laid down by law, information relating to services lawfully available in another state.

A simple proposal to repeal would then be a vote to remove this subsection from the Constitution. However, of six proposals under consideration by the Joint Committee on the Eighth Amendment of the Constitution and for which Nuala Butler SC has provided a legal opinion, only two would be a repeal in this sense. These options are:

1. Repeal simpliciter, i.e. simply removal of Article 40.3.3º.
2. Repeal based on legislation entrenched in the Constitution.
3. Repeal based on legislation published in tandem with the referendum.
4. Amend 40.3.3º to add specific exceptions.
5. Amend 40.3.3º to alter the weight between the woman and the unborn.
6. Repeal and replace with provision conferring exclusive power to legislate on the Oireachtas to regulate.

Since the Eighth Amendment was passed in 1983, and more particularly since the X Case in 1992, the question of abortion has come before our courts, as well as international human rights courts on numerous occasions. The referendum next year should turn this question from a judicial one to a legislative one. The courts should of course act as a venue where we can vindicate our constitutional rights; however, if it can achieve this in individual cases, it is not appropriate for something like abortion, which affects different people in different ways. This was illustrated in A, B & C v Ireland (2010), where the European Court of Human Rights criticised Ireland for not providing clarity in the years since the X Case in 1992 on when specifically a risk to life allowed an abortion.

This naturally leads me to favour Option 1, a plain repeal, and with legislation to follow. However, some fear that returning our constitutional law to the status quo ante would give life to pre-1983 judicial statements which found against abortion based on the general provisions of the constitution. Conor O’Mahony has outlined a number of these cases, none of which actually related to abortion itself, where Supreme Court judges went out of their way to state or imply that there was a right to life of the unborn: McGee v AG (on contraception), G v An Bord Uchtála (on the rights of a child born outside of marriage), and Norris v AG (on laws prohibiting sex between men).

This does not mean we should assume that in the face of positive law allowing abortion that the Supreme Court would strike down this law, reviving this line of judicial reasoning. Remember that Walsh and McCarthy JJ in the above cases were likely to have had in mind the arguments advanced in Roe v Wade that a constitutional right to privacy led to a right to an abortion, and that legislation prohibiting abortion should be struck down. They were not writing when there was the prospect of law allowing abortion. Indeed, McCarthy J himself in the X Case (1992) would go on to excoriate the Oireachtas for failing to provide legislation in the years after 1983.

There’s sufficient legal disagreement about the likely attitude of the courts however to consider Option 6. This would replace the current provision, and most likely only the first paragraph, with a clause allowing the Oireachtas to legislate. In principle, this should have the same effect as removing the current provisions. Conor O’Mahony has proposed a number of possible wordings, the most neutral of which is:

The circumstances in which it shall be permissible to terminate a pregnancy shall be specified by law.

In case of either Option 1 or Option 6, on the passage of such a referendum, the Protection of Life During Pregnancy Act 2013 would continue as law, allowing abortion only where there is a threat to the life of a woman.

This would actually also be the case under Option 3, where proposed legislation is published ahead of the referendum. Without a specific prohibition, regardless of pledges before the vote, the terms of legislation become a political matter, and there would be guarantee that the legislation proposed would in fact pass at all, or pass in the form published.

Option 2 would get around this, by inserting reference to specific proposed legislation into the Constitution itself. This was proposed in the failed Twenty-fifth Amendment in 2002, which would have overturned the X Case by specifically excluding a risk of suicide as a ground for abortion. It proposed to do this by adding a new subsection:

4° In particular the life of the unborn in the womb shall be protected in accordance with the provisions of the Protection of Human Life in Pregnancy Act 2002.

The text of this legislation was included as a Schedule to the Amendment to the Constitution Bill, and it would in effect have been given constitutional status, immune to even minor amendment without further referendum. This inflexibility is not suited to our current debate. The legislation proposed is likely to be relatively constrained. Do we want a fresh referendum in ten years’ time when the limitations of the legislation become apparent? There are good reasons we distinguish in our hierarchy of laws between the principles and structure provided by our Constitution and the detail provided by legislation.

A similar criticism rests with Option 4, which would add new clauses to 40.3.3º specifying the circumstances where an abortion would be permitted, such as within certain weeks of pregnancy, or if the health of the woman is at risk, or the foetus will not live beyond birth, or if it occurred as a result of a sexual crime. We were are now considering amending the waiting period for divorce after the 1995 amendment prescribed a period of four years, so this approach for abortion is likely to lead in time to yet another referendum. Again, the Constitution is not suited to the detailed prescriptions and definitions that would be required under this proposal (I particularly wonder how allowing abortion in the case of sexual offences can carefully be worded in the Constitution, aside from other difficulties I have with this exception). The Constitution is not the place to deal with medical care, and such limitations should not be included within the text itself.

And Option 5 would simply not provide the requisite legal clarity. A re-balancing of the right of the mother and of the unborn, such as to consider the woman’s health or general well-being would very likely lead to further litigation on the margins of judicial understanding of this balance. The courts would be considering a different text to what has been before them since 1983, but it would remain a recurring matter for the judiciary.

Therefore, I would like to see either Option 1 or Option 6, depending on where the consensus legal view rests. After such a vote, it might be advisable for the president to refer the ensuing legislation to the Supreme Court under Article 26 to determine its constitutionality. Mary Robinson did so when asked to sign the Regulation of Information (Services outside the State for Termination of Pregnancies) Bill 1995, which had been passed. The Supreme Court upheld affirmed its constitutionality, and further that it relied on law and legislation as written, rather than natural law outside the text of the Constitution.

I should add, finally, my observations here have consciously been directed on the legal effects and outcomes. There may be political grounds for various options, which I will consider as the Committee reaches a decision on its prefered approach.