Abortion on demand the legal outcome of repeal of Eighth Amendment

Just as one cannot step into the same river twice, a simple repeal of the Eighth Amendment will not take us back to the constitutional position on abortion that was obtained in 1983. In particular, the act of repeal will not give the Oireachtas a free hand to legislate in relation to abortion as the Constitution will remain an important factor shaping abortion policy.

What was the constitutional situation on October 6th, 1983, the day before the amendment came into effect? While the Constitution contained no explicit provision in relation to abortion, it was clear it had the potential to shape the development of national policy on this question. On the one hand, the courts had identified a right of marital privacy that, according to supporters of the amendment, might at some point be interpreted by the courts to encompass the right of a woman to terminate her pregnancy.

On the other hand, in a number of cases, some members of the judiciary had made non-binding statements to the effect that the Constitution implicitly protected the right to life of the unborn. Had the Eighth Amendment not been passed in 1983, the courts might have shaped abortion policy by ruling definitively, in an appropriate case, as to how these competing rights were to be balanced.

Liberalise

The possibility of this happening – that the courts might liberalise the law on abortion – was arguably a key factor leading to the campaign for the amendment.

An alternative possibility, at least in theory, was that the Oireachtas might have legislated on this issue. Had that happened, the likelihood is that such legislation would have been upheld by the courts unless it was “so contrary to reason and fairness as to constitute an unjust attack on some individual’s constitutional rights”.

However, as we all know, the people voted for the amendment, thereby asserting their role as the ultimate arbiter of constitutional policy on abortion and precluding the Oireachtas and the courts from developing the law in this area other than in accordance with the terms of article 40.3.3.

The current constitutional position is that both the right to life of the mother and the unborn are protected and that the former prevails wherever continuation of the pregnancy poses a real and substantial risk to the mother’s life. Nothing that does not poise such a risk, such as, for example, the mother’s undoubted right to privacy or bodily integrity, can be relied on to justify an abortion in this jurisdiction.

The most obvious interpretation of any decision to delete article 40.3.3 is that the people will have decided to completely withdraw constitutional protection from the unborn. In this situation, the only constitutional factor at play will be the constitutional rights of the mother and clearly these would support a much more liberal regime of abortion.

Now of course constitutional rights are not absolute. The courts have made it clear that the Oireachtas has a role in balancing people’s rights with the common good. However the Oireachtas must demonstrate that there is a “reasonable proportion between the benefits which the legislation will confer on the citizens or a substantial body of them and the interference with the personal rights of the citizen”.

Common good

This test, set down by in 1965, does not address is a situation in which the people have directly expressed their view on what they might consider is required by the common good.

It seems to me that a simple deletion of article 40.3.3 would have to be interpreted by the courts as a statement by the people that the common good no longer required any protection for the right to life of the unborn.

This, of course, logically implies that any restriction on the mother’s constitutional rights in relation to her decision to terminate her pregnancy would be unconstitutional and that we would have arrived at a situation of abortion on demand.

The only way it would seem possible to impose some limits on the right to abortion would be to read the decision of the people to remove constitutional protection for the unborn as somehow still subject to some implicit limitation.

However, the argument that the power of the people to amend the Constitution was subject to the natural law rights of the unborn was rejected by the Supreme Court in the abortion information Bill reference in 1995.

In the course of its judgment, the court said: “The people were entitled to amend the Constitution in accordance with the provisions of article 46 of the Constitution and the Constitution as so amended by the Fourteenth Amendment is the fundamental and supreme law of the State representing as it does the will of the people.”

Unless one can draw a relevant distinction in this context between natural law and some other possible restriction on the people’s power to amend the Constitution, it seems to me that this decision means that the simple deletion of the Eighth Amendment will have to be interpreted as an unqualified decision to remove constitutional protection from the unborn, resulting in abortion on demand.

Gerry Whyte lectures in law in Trinity College. In 2005, he dissented from the majority report of the Commission on Assisted Human Reproduction on the specific question of the legal protection that should be afforded to the embryo.