Repeal’s constitutional change would carry deep legal implications

On Friday, each of us will become lawmakers and as such, we will directly shape the fundamental law of the State. This important role prompts the question: what, as a matter of law, are we being asked to do? Obviously, in the first instance, we are being asked to remove the Eighth Amendment, and with it “the only constitutional right of the unborn” as the Referendum Commission succinctly puts it on its website. Second, in place of the existing acknowledgement of the right to life of mother and child, we are asked to give the Oireachtas power to provide for the regulation of abortion.

The Government has told us how it will use this power, if we give it to them. Its draft legislation repays careful reading. It provides for a wide-ranging right to an abortion not only up to 12 weeks but also up to viability, ie up to six months (head 4) on grounds which are analogous to the legislation in Great Britain. In certain circumstances, the unborn child’s life may be ended right up until he or she has been born (for example, head 6). Also, it is in the nature of legislation that it can be changed without consulting the people, so such limitations on access to abortion as might be set in legislation can be removed at any time by future governments or challenged. If taken out of the Constitution, for some (as in America), it will be an electoral issue in every election ahead.

Property rights comparison

The legislation illustrates the profound nature of the constitutional change we are being asked to make. Many will view it as too extreme, particularly when it was open to the Government to place before us a proposal which centred upon the harrowing “exceptional” cases that move us all. Others will be unconvinced by the argument that the interlocking rights of mother and child are “too complicated” an issue to deal with in the Constitution. If we were talking about any other right under the Constitution, rather than the right to life of the unborn child, no one would be convinced by such an argument.

That the Government's plans will usher in abortion on request has been the focus of people's attention – rightly so

For example, property rights have been litigated, legislated for and fought over by right and left for hundreds of years, but no one would be persuaded that such rights should be entrusted to the political system to deal with, without clear constitutional constraints or guidance.

What can Ireland learn from the UK on abortion?

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Legislating for abortion on grounds of rape alone is impossible

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Several factors complicate passing legislation in event of repeal

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Human beings are equal in their basic interests and their basic human rights

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That the Government’s plans will usher in abortion on request has been the focus of people’s attention – and rightly so. However, the effects of repeal will not stop there and the wider legal implications of repeal also deserve consideration.

The Eighth Amendment has been used by the mothers and fathers of stillborn children to hold careless third parties to account. One such couple was Lavinia Doyle and her Italian-born partner, Luca Chiussi. Doyle and her partner claimed the Health Service Executive (HSE) failed to detect or to respond appropriately to the onset of constant abdominal pain and failed to deliver their child in time to avoid his stillbirth.

In the event of repeal, a stillborn child will be deprived of that legal argument, no matter how careless the drink-driver, no matter how negligent the hospital, no matter how irresponsible the State has been

In response, the HSE argued that Doyle’s child was not a person within the meaning of the Civil Liability Act, 1961, which allows one to sue for wrongful death. Strikingly similar arguments were made by the State before the Supreme Court last February.

Unborn is person

In both Lavinia Doyle's case and in the Supreme Court, the Eighth Amendment was the bulwark against this line of argument. As long as it remains in the Constitution, the Eighth Amendment makes it clear that the unborn is a person, with a right that does not depend on him or her being born alive. In the Doyle case, it helped the couple achieve what The Irish Times described at the time as a "substantial" amount in settlement of their claims.

In the event of repeal, a stillborn child will be deprived of that legal argument, no matter how careless the drink-driver, no matter how negligent the hospital, no matter how irresponsible the State has been in causing his or her death. Our Constitution will no longer acknowledge the right to life of the unborn and instead will simply refer to the Oireachtas’s power to regulate, as the draft legislation puts it, procedures which “are intended to end the life” of the unborn. What were previously acknowledged as basic, human rights will be contingent on being wanted and being born. It may be that the courts will map an alternative route to justice in cases of stillbirth but, if they do, they will have to do so through the philosophical rubble left by a seismic shift in the legal order. Holding the powerful responsible for their actions and enforcing the highest standards of care for mothers and their unborn children may prove to be another very good reason for voting no.

Benedict Ó Floinn is a practising barrister, author of Practice and Procedure in the Superior Courts and was a member of the expert group on the Courts Act. He is a supporter of the LoveBoth campaign