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BYU Law Review BYU Law Review Volume 1984 | Issue 3 Article 4 9-1-1984 The Right to Life of the Unborn-An Assessment of the Eighth Amendment to the Irish Constitution John A. Quinlan Follow this and additional works at: https://digitalcommons.law.byu.edu/lawreview Part of the Constitutional Law Commons, and the Family Law Commons Recommended Citation John A. Quinlan, The Right to Life of the Unborn-An Assessment of the Eighth Amendment to the Irish Constitution, 1984 BYU L. Rev. 371 (1984). Available at: https://digitalcommons.law.byu.edu/lawreview/vol1984/iss3/4 This Comment is brought to you for free and open access by the Brigham Young University Law Review at BYU Law Digital Commons. It has been accepted for inclusion in BYU Law Review by an authorized editor of BYU Law Digital Commons. For more information, please contact [email protected]. The Right to Life of the Unborn-An Assessment of the Eighth Amendment to the Irish Constitution The late President of Ireland and former Chief Justice of the Irish Supreme Court, Cearbhall O'Dalaigh, once stated, "Constitutional rights are declared not alone because of bitter memories of the past but no less because of the improbable, but not-to-be-overlooked, perils of the future."' This statement de- scribes the rationale behind the eighth amendment to the Irish Constitution. Viewed in popular terms as a prolife amendment, its genesis lies in fear that the almost universal trend to liber- alize abortion legislation may creep into Ireland. The amend- ment attempts to strike the appropriate balance between the mother's constitutionally protected personal rights and the un- born's right to life. Although it was strongly supported by the people, the amendment contains some technical problems, as well as some broad language that may permit rather than pre- vent the introduction of abortion legislation in Ireland. How- ever, in light of the strong public opinion against any liberaliza- tion of abortion laws, and the legislative and judicial development of Irish family law, the more realistic view is that the amendment is a powerful endorsement of Ireland's prolife position. In order to understand the legal and political atmosphere in Ireland at the time the amendment was passed, it is necessary to understand (1) the historical development of the Irish Republic, (2) the effects of foreign legislation on Irish law, and (3) the de- velopment of Irish abortion law. Because English rule was imposed for several centuries, En- glish common law directly applied -in Ireland.2 Abortion was viewed by early English commentators as a serious crime. Black- stone stated: 1. McMahon v. Attorney Gen., 1972 Ir. R. 69, 111. 2. Henchy, Precedent in the Irish Supreme Court, 25 MOD.L. Rev. 544 (1962). 372 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [I984 Life is the immediate gift of God, a right inherent by nature in every individual; and it begins in contemplation of law as soon as an infant is able to stir in the mother's womb. For if a wo- man is quick with child, and by a potion or otherwise, killeth it in her womb; or if anyone beat her, whereby the child dieth in her body, and she is delivered of a dead child; this, though not murder, was by the ancient law homicide or manslaughter. But the modern law doth not look upon this offence in quite so atrocious a light, but merely as a heinous mi~demeanor.~ Ireland was incorporated into the United Kingdom of Great Britain and Ireland in 1800 by the Union with Ireland Act.4 The English Parliament became the sole legislator for both England and Ireland and thereafter all enactments specifically stated whether they were to apply to England, Ireland, or both.6 In the nineteenth century, the English Parliament codified the law governing abortion in the Offences Against the Person The Act specifically declared that it applied to Ireland.7 Sections 58 and 59 provided: 58. Every Woman, being with Child, who with Intent to pro- cure her own Miscarriage, shall unlawfully administer to herself any Poison or other noxious Thing, or shall unlaw- fully use any Instrument or other Means whatsoever with the like Intent, and whosoever, with Intent to procure the Miscarriage of any Woman, whether she be or be not with Child, shall unlawfully administer to her or cause to be taken by her any Poison or other noxious Thing, or shall unlawfully use any Instrument or other Means whatso- ever with the like Intent, shall be guilty of Felony, and being convicted thereof shall be liable, at the Discretion of the Court, to be kept in Penal Servitude for Life or for any Term not less than Three Years, or to be imprisoned 3. 1 W. BLACKSTONE,COMMENTARIES 129-30 (4th ed. 1771); see also E. COKE,THIRD INSTITUTE50 (1979) (1st ed. London 1628). 4. 39 & 40 Geo. 3, ch. 67 (1800), reprinted in 23 HALSBURY'SSTATUTES OF ENGLAND 832 (A. Yonge 3d ed. 1970). The union was codified by an identical Irish act, the Act of Union (Ireland) 1800. The Act abolished the separate Irish Parliament that had existed since the thirteenth century. The Act received the Royal Assent on August 1, 1800. 5. For example, The Abortion Act, 1967, ch. 87, 5 7(3) specifically provides that it does not apply to Northern Ireland. 6. 24 & 25 Vict., ch. 100 (1861). 7. Id. The preamble to the Act states, "Whereas it is expedient to consolidate and amend the Statute Law of England and Ireland in relation to offences against the person . ." (emphasis in original). 3711 RIGHT TO LIFE 373 for any Term not exceeding Two Years, with or without Hard Labour, and with or without Solitary Confinement. 59. Whosoever shall unlawfully supply or procure any Poison or other noxious Thing, or any Instrument or Thing whatsoever, knowing that the same is intended to be un- lawfully used or employed with Intent to procure the Miscarriage of any Woman, whether she be or be not with Child, shall be guilty of a Misdemeanor, and being con- victed thereof shall be liable, at the Discretion of the Court, to be kept in Penal Servitude for the Term of Three Years, or to be imprisoned for any Term not ex- ceeding Two Years, with or without Hard Labour. This Act continues to be the law concerning abortion in Ireland today.8 In 1921 a treaty was signed between Ireland and England forming the Irish Free State (Saorstat Eireann) out of twenty- six of the thirty-two Irish counties.' Although it remained a member of the British Commonwealth of Nations, the Irish Free State ceased to be part of the United Kingdom. In 1922 an Irish Constitution was established.1•‹ This constitution was amended twenty-seven times in the next fifteen years" and was finally superceded in 1937 when the present constitution was approved by plebiscite. The eighth amendment discussed in this comment has been incoporated into the 1937 con~titution.'~ The 1937 constitution virtually severed Ireland's ties to Great Britain.13 However, it provided (as did the 1922 constitu- tion) that all laws previously in force would continue to be of full force and effect so long as they were consistent with the 1937 constitution, or until they were repealed or amended by the Oireachtas (Irish Parliament).14 Thus, the "unlawful miscar- 8. Binchy, Abortion and the Law, in ABORTIONNOW 69 (1983) (published by Life Education and Research Network). 9. Codified in The Irish Free State (Agreement) Act, 1922, 12 & 13 Geo. 5, ch. 4, reprinted in 4 HALSBURY'SSTATUTES OF ENGLAND636 (A. Yonge 3d ed. 1968). The re- maining six counties now constitute Northern Ireland and remain under English rule. 10. Codified in The Irish Free State (Saorstat Eireann) Constitution Act, 1922, 13 Geo. 5, ch. 1, reprinted in 4 HALSBURY'SSTATUTES OF ENGLAND641 (A. Yonge 3d ed. 1968). 11. 4 HALSBURY'SSTATUTES OF ENGLAND642 (A. Yonge 3d ed. 1968). 12. IRISHCONST. art. 40.3.3. 13. The final step occurred in 1948 when the Irish Free State left the British Com- monwealth of Nations. It is now internationally recognized as the Republic of Ireland. See The Ireland Act, 1949, 12, 13 & 14 Geo. 6, ch. 41, reprinted in 4 HALSBURY'SSTAT- UTES OF ENGLAND670 (A. Yonge 3d ed. 1968). 14. IRISHCONST. art. 50.1. 374 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [I984 riages" provisions of the Offences Against the Person Act were carried over into Irish law by the new constitution. Although sections 58 and 59 of the Offences Against the Person Act specifically prohibit abortion in Ireland, there have been few prosecution^.'^ In 1945 William Henry Coleman was charged with two counts of attempting to perform an abortion.I6 He was found guilty and sentenced to fifteen years of penal ser- vitude on each count with the sentences to run concurrently. The most infamous Irish abortionist was a woman known as Nurse Cadden, who "was a well known figure . on the Dublin scene for 20 years."17 Her medical services came to an end in 1956, when she was convicted of murder after the body of a wo- man, who died following an abortion, was found on the public footpath outside her apartment.ls Nurse Cadden was sentenced to death, but the sentence was commuted to life imprisonment. In neither of these cases, nor in any other case to date, has an Irish court analyzed the scope of sections 58 and 59." How- ever, the English courts have analyzed these sections and an ex- amination of their analysis is instructive because of its poten- tially persuasive influence on Irish law.
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