FIONA DE LONDRAS MMAIREADÁIRÉAD ENRIGHT REPEALINGREPEALING THE 8TH THE 8TH Reforming Irish abortion law WITH NEW POSTSCRIPT POLICY PRESSPOLICY & PRACT ICE FIONA DE LONDRAS MÁIRÉAD ENRIGHT REPEALING THE 8TH Reforming Irish abortion law POLICY PRESSPOLICY & PRACT ICE First published in Great Britain in 2018 by Policy Press North America office: University of Bristol Policy Press 1-9 Old Park Hill c/o The University of Chicago Press Bristol 1427 East 60th Street BS2 8BB Chicago, IL 60637, USA UK t: +1 773 702 7700 t: +44 (0)117 954 5940 f: +1 773 702 9756 [email protected] [email protected] www.policypress.co.uk www.press.uchicago.edu © Policy Press 2018 The digital PDF version of this title is available Open Access and distributed under the terms of the Creative Commons Attribution-NonCommercial 4.0 license (http://creativecommons. org/licenses/by-nc/4.0/) which permits adaptation, alteration, reproduction and distribution for non-commercial use, without further permission provided the original work is attributed. The derivative works do not need to be licensed on the same terms. British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library. Library of Congress Cataloging-in-Publication Data A catalog record for this book has been requested. ISBN 978-1-4473-4751-4 (hardback) ISBN 978-1-4473-4752-1 (ePub) ISBN 978-1-4473-4753-8 (Mobi) ISBN 978-1-4473-4754-5 (OA PDF) The right of Fiona de Londras and Máiréad Enright to be identified as authors of this work has been asserted by them in accordance with the Copyright, Designs and Patents Act 1988. All rights reserved: no part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise without the prior permission of Policy Press. The statements and opinions contained within this publication are solely those of the authors and not of the University of Bristol or Policy Press. The University of Bristol and Policy Press disclaim responsibility for any injury to persons or property resulting from any material published in this publication. Policy Press works to counter discrimination on grounds of gender, race, disability, age and sexuality. Cover design by Policy Press Front cover: image kindly supplied by Aoife Hamill Printed and bound in Great Britain by CMP, Poole Policy Press uses environmentally responsible print partners Contents Acknowledgements iv A note on terminology v 1 The case for repealing the 8th 1 2 The Constitution after the 8th 15 3 A rights-based approach to abortion 33 4 Accessing abortion care: principles for legislative design 61 5 Model legislation 105 6 Conclusion 127 Postscript 129 Bibliography 145 Index 153 III Acknowledgements We are grateful to the College of Arts and Law, University of Birmingham and Birmingham Law School, which supported us in making this book freely available to the public through Open Access publishing; particular thanks to Sheena Robertson, Professor Michael Whitby, Professor Joanna Gray and Dr Sophie Boyron for endorsing (and funding) the project. Our thanks go also to Magdalena Furgalska for her research assistance, Victoria Pittman and her team at Policy Press, and the many dozens of activists, academics, friends, abortion service providers, abortion care seekers and politicians with whom we have discussed the issues canvassed here over the years. Particular thanks to Bríd ní Ghráinne, Christine Ryan, Aisling McMahon, Sinead McEneaney, Laura Cahillane and Sandra Duffy for reading and commenting on parts of the manuscript despite the very short turnaround. All opinions, errors and omissions are ours. The draft legislation we propose in Chapter 5 is in many senses the result of a long process of collective feminist deliberation. It was informed by earlier drafting exercises and discussions with Vicky Conway, Mary Donnelly, Ruth Fletcher, Natalie McDonnell, Sheelagh McGuinness, Kathryn McNeilly, Claire Murray, Sinead Ring and Sorcha uí Chonnachtaigh. Leah Hoctor, Maeve Taylor, Sally Sheldon, Julie McCandless, Sheelagh McGuinness, Aoife Nolan, Deirdre Duffy, Joanna Erdman and Catherine O’Rourke provided helpful comments on previous such drafts. The manuscript was completed on 15 November 2017 and the law is accurate as of that date. IV A note on terminology Throughout this text we use the terms pregnant person/s, pregnant women, pregnant woman, pregnant people, woman, and women interchangeably. We recognise that many trans* and non-binary people can become pregnant and may need abortion care. In all instances, we include all those who may seek and need abortion care within these terms. V 1 The case for repealing the 8th 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 1 66.9% of voters voted in support of the 8th Amendment. The turnout was 53.6%. 2 We are indebted to Ruth Fletcher here. See generally Fletcher, Ruth, ‘Judgment: Attorney General v X’, in Enright, Máiréad et al (eds) Northern/ Irish Feminist Judgments: Judges’ Troubles and the Gendered Politics of Identity (2017, Hart/Bloomsbury Publishing). 1 REPEALING THE 8TH 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. If the state’s obligation is merely to keep both pregnant person and foetus alive, real questions of practicability—of how much pain, suffering or risk the pregnant person can be compelled to endure— carry no constitutional weight. Ordinary constitutional principles of proportionality do not apply. The only limit is that the state need not do what is ‘futile’ to preserve foetal life.6 So the 8th Amendment has provided cover for drastic intrusions into pregnant people’s private lives. For example, in the history of the 8th Amendment, people acting ‘on behalf of’ the unborn have taken cases to disrupt attempts to access abortion care,7 while state actors have tried to vindicate the right to life of the ‘unborn’ by attempting to prevent people from travelling for 3 Smyth, Lisa, ‘Feminism and Abortion Politics: Choice, Rights, and Reproductive Freedom’ (2002) 25(3) Women’s Studies International Forum 335. 4 Fletcher, Ruth (see note 2). See also McNeilly, Kathryn, ‘From the Right to Life to the Right to Livability: Radically Reapproaching “Life” in Human Rights Politics’ (2015) 41(1) Australian Feminist Law Journal 141. 5 Article 40.3.3, Constitution of Ireland. 6 Attorney General v X [1992] 1 IR 1; PP v HSE [2014] IEHC 622. 7 Attorney General (SPUC) v Open Door Counselling & Well Woman Centre Ltd [1988] IR 593; SPUC v Grogan [1989] IR 753. 2 THE CASE FOR REPEALING THE 8TH abortion,8 or imposing unwanted medical interventions on women.9 Second, concentration on mere biological life produces highly artificial legal reasoning. We do not treat two such different entities as a foetus and a grown woman equally when we treat them the same. The law can only achieve this sameness by ruling out all of the considerations that make the pregnant person’s life different from that of the foetus, so that a court is simply comparing each one’s chance of remaining alive. The Supreme Court has held that when a pregnant person proposes to terminate a pregnancy, the risk of loss of the foetus’ life is 100%. So, in order to be entitled to an abortion, the pregnant person must show that the risk that she will die, unless she obtains the abortion, is substantively as great.10 Of course, this will almost never be the case. This approach to the 8th Amendment was not inevitable, but it was intended.11 The 8th Amendment was not legally necessary; there was no discernible movement to legalise abortion (which was criminalised) in Ireland at the time, and the Supreme Court had made clear that even though there was a limited constitutional right to access contraception this did not extend to a right to access lawful abortion. However, the referendum that led to the 8th Amendment was the product of a potent mix of political turbulence, religious domination and conservative lobbying.12 It was at once a pre-emptive strike against any further liberation for woman, and a backlash against the limited liberation that had already occurred.