Máiréad Enright – Repealing the Eighth Seeks to Strike a Healthier Balance between Constitutional Principles and Practicable Laws

The Citizens’ Assembly meets this weekend, and may recommend changing Ireland’s abortion laws. The only viable recommendation is to repeal the Eighth Amendment.

Legal experts agree that the Constitution is not the place to regulate healthcare.

Nevertheless, technical constitutional arguments have a peculiar ability to fill available public space whenever abortion is raised.

For example, last month, the Citizens’ Assembly heard that repeal of the Eighth Amendment could have unintended consequences: the Supreme Court might find the foetus has a right to life despite repeal. The Court might have to explain why a woman is entitled to an abortion.  Some argued that, without the Eighth or a similar clause, there would be no telling what the Supreme Court might do.

This would be an exaggeration even if the Supreme Court were as dangerously activist as some people imagine.

It is the Supreme Court – our highest judicial authority – that ensures compliance with the Constitution.

The Supreme Court, post-repeal, would not encounter abortion in a vacuum, however.  It would most likely be asked to decide if legislation passed by the Oireachtas is constitutional, whether that be new legislation or the existing Protection of Life During Pregnancy Act, which has been in force since 2013 – and which will remain in force, after repeal, until such time as the Government chooses to introduce new laws.

In a post-repeal Ireland, then, the arguments put to the Supreme Court would be about the balance to be struck between the constitutional rights of a pregnant woman and a foetus.

Ordinarily, where the Supreme Court is dealing with a morally controversial issue, it defers to the balance struck in legislation by the Oireachtas.  Of course, the judicial language in which that balance is expressed would change after repeal.

The Eighth Amendment provides that a pregnant woman’s right to life and that of her foetus are equal, while none of the woman’s other rights matter, at any stage of her pregnancy.

After repeal, the Supreme Court would likely find that the State is entitled to protect foetal life, but that this entitlement must now be balanced against the pregnant woman’s rights – not only to life, but to health and to autonomy.

This is the approach taken by superior courts elsewhere, whether in liberal jurisdictions like Canada, the US and Germany, or in those with a more pronounced Catholic heritage, like Spain, Colombia and Brazil.

Worldwide, this sort of constitutional balancing is normal: complex social issues like abortion don’t belong within the confines of constitutions, so it falls to governments to legislate; to flesh out the balance between constitutional principles and practicable laws.

In Ireland, we are told that abortion is unique among all moral issues, and that the Constitution must determine once and for all ‘what is to be done’.  In that, we are an international legal oddity.

Only 18 countries globally deal with abortion in their Constitution.  Only two – Ireland and the Philippines – provide that the right to life of a pregnant woman and a foetus shall be weighed equally.

Irish people would find something all too familiar in stories from the other 17 countries: of raped girls compelled to give birth in Paraguay; refusal of terminations in cases of fatal foetal abnormality in El Salvador; criminalisation of abortion-seeking women in Ecuador; and women’s journeys from Swaziland to abortion clinics over the border in South Africa.

The Eighth Amendment, like its counterparts elsewhere, is the product of successful and opportunistic lobbying of government by religious and conservative groups at times of political and social upheaval.

Conservatives see in constitutional law a chance to solidify their gains amidst rapid social change. Politicians see a chance to dodge a bullet – to let the Constitution deal with issues that they don’t want to address.

An interesting court case is coming up in Kenya – one of the 17 countries mentioned above – where Article 26 of the new Constitution sets out the grounds for abortion. The Government there has failed to provide guidance on how the Constitution is to be interpreted, so doctors are unclear on when abortions can be provided, and women’s access to abortion is inhibited.  Doesn’t that sound familiar? We did it for 30 years in Ireland.

The Citizens’ Assembly must break with this pattern of rotten constitutionalism, and push to repeal the Eighth.

Máiréad Enright is Senior Lecturer in Law at the University of Birmingham.