Professor Fiona de Londras (Durham Law School)
This week an Irish parliamentary committee—the Joint Committee on Health and Children—is taking submissions on what shape proposed new legislation governing access to abortion in Ireland should take. These hearings, which are the first concrete step in the process of introducing such legislation, will almost certainly be contentious and fraught. Abortion is a political bomb in Ireland and has been for decades. This explains why, in spite of the fact that there is a clear right to access an abortion in Ireland, no legislation governing how this right can be exercised has been introduced since it was first clearly established in 1983. The purpose of this post is to outline how we got here, and to identify a few of the main sticking points likely to be raised at the hearings and in the course of drafting the legislation.
1. The 8th Amendment to the Constitution
The Irish Constitution can only be amended by referendum of the People. It was thought that there was no possibility that abortion could be made available in Ireland under the Constitution as introduced in 1937. However, the development of the right to access abortion in the United States (in Roe v Wade 410 U.S. 113 (1973)) and the right to access contraception in Ireland (McGee v Attorney General  1 IR 284)—both deriving from privacy rights—caused concern in some quarters, which successfully lobbied to have a proposal put to the People for the 8th Amendment to the Constitution. The proposed wording, which was approved by the people and now exists as part of Article 40.3.3 of Bunreacht na hÉireann, was almost always sure to be problematic in some ways. Indeed, state papers released under the 30 year rule just this month reveal that successive Attornies General expressed concern about the wording. Notwithstanding those concerns, however, the wording was put to the People and approved and it reads:
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.
It is quite clear from this wording that the Constitution balances the rights to life of pregnant women and foetuses so that, while abortion is generally impermissible, it would be permissible where there is an irreconcilable conflict between the rights. This can be derived by the fact that the unborn’s right to life is acknowledged “with due regard” to pregnant women’s rights and is to be vindicated “as far as practicable”. Even though it was clear from the outset that this wording meant that abortion would be constitutionally permissible in extremely limited circumstances, no legislation was introduced to govern how those circumstances might be identified or how medical practitioners are to proceed in such cases. Indeed, under the Offences against the Person Act 1861 (still in force), it is a criminal offence punishable by life imprisonment to give a woman an abortion outside of the constitutionally permissible situations.
2. Attorney General v X
The situation came to a dramatic and tragic head in AG v X  1 IR 1. X was a 14-year old girl who had been raped and was pregnant as a result. She openly declared that she would kill herself if she had to continue with the pregnancy and her parents decided to take her to the UK for an abortion. They contacted the DPP to see whether there might be evidence from the abortion to be used in criminal proceedings, and the DPP made the AG aware of their intention to travel. At the time, it was not clear that women had a constitutional right to travel to procure an abortion and the AG—acting in his role as guardian of the constitution—sought an injunction to prevent her from travelling. Of course, he was roundly criticised for this, but the nature of his role is such that it would almost certainly have been a dereliction of constitutional duty to do otherwise. Although the High Court issued an injunction preventing her from travelling to the UK, the Supreme Court lifted this. In the course of doing so, the Supreme Court had to consider the meaning of Article 40.3.3 and found that
[T]he proper test to be applied is that if it is established as a matter of probability that there is a real and substantial risk to the life, as distinct from the health, of the mother, which can only be avoided by the termination of her pregnancy, such termination is permissible, having regard to the true interpretation of Article 40, s. 3, sub-s. 3 of the Constitution. (per Finlay CJ).
The Court also found that the risk to life need not be immediate or inevitable and that it could include a risk emanating from suicidal ideation. Following X, the People approved constitutional amendments to confirm the right to travel abroad for an abortion and the right to access information about abortion. Furthermore, the People have twice since rejected proposed amendments to remove suicidal ideation from the bases for accessing an abortion.
It is difficult to express just how contentious X was and remains in Ireland. Anti-abortion advocates who championed the 8th Amendment claim that it undoes the intention behind the amendment and some even claim (quite disingenuously) that—because it does not lay down any time limits and allows for abortion in cases of suicidal ideation—it has ushered in one of the most liberal abortion regimes in Europe. In X and in subsequent cases, the Irish courts have criticised the government for failing to introduce legislation making it clear how the constitutional right operates, but in spite of this—and largely because of the contentious nature of the issue and the capacity of anti-abortion advocates to make their voices loudly heard—no legislation was introduced between 1992 (when X took place) and today
3. A, B & C v Ireland
The turning point was A, B & C v Ireland  ECHR 2032 in which the European Court of Human Rights found consistent with its previous jurisprudence – that while the extent to which abortion is available is a matter within every state’s margin of appreciation (or discretion), where such a right exists, it must be exercisable. Because of the lack of guidance in Ireland and the chilling effect of the severity of punishment for performing an abortion outside of the limited constitutional right, the Court found that there was a violation of Article 8 in the case of C. C fell into the category of someone who may have qualified under Article 40.3.3 (because her life may have been at risk) yet there was no way to determine that as a matter of legality in Irish law (beyond getting a High Court order) and so she travelled for an abortion.
Following this case, it was clear that there were only two viable options for Ireland: either have a referendum to remove the right to an abortion (which no political party wanted to do); or introduce legislation to give effect to the Constitution as it currently stands. A third option – to do nothing – was simply not realistic; as a matter of practice and policy, Ireland does not persist when a law/practice has been deemed incompatible with the Convention by the ECtHR (although it sometimes takes quite some time before a change is introduced!)
The government established an Expert Committee to report on legislation options and opted to introduce a mixture of primary legislation and regulations to give effect to the right.
4. Contentious Issues
There is no question that the passage of this legislation will be difficult. First of all, the government is a somewhat uncomfortable coalition of Fine Gael (which pledged in the election not to legislate for X) and Labour (which pledged to try to introduce a more liberal abortion regime), and the issue of abortion was surely one they would have hoped to avoid if possible. Furthermore, some members of the Fine Gael back bench and cabinet members have called for a ‘free vote’ on the legislation; a call which has been rejected by the Taoiseach (Prime Minister). There is, thus, some internal politics to be negotiated along with the terms of the legislation itself.
When it comes to the terms of the legislation, it seems clear that time limits and suicidal ideation will be the most contentious issues.
Provided the requirements of the test are fulfilled, there is a right to have a pregnancy terminated at any time during the pregnancy. Contrary to the claims of anti-abortion advocates, however, this does not mean that there is a right to an abortion up to 9 months where the foetus is viable. This is because the Supreme Court’s interpretation of Article 40.3.3 – as well as the wording of the provision itself – is restrictive in nature. As noted above, the right arises only where, as a matter of probability, (i) there is a real and substantial risk to the life of the woman, and (ii) that risk can only be avoided by termination of the pregnancy. Thus, the lack of such a time limit is mitigated by the strictness of the test itself. The Constitution and the test from X make it very clear that the life of the unborn child must be vindicated where possible and where such vindication would not compromise the woman’s right to life. Thus, where a pregnancy is sufficiently advanced and a clinical decision is made that the foetus may be viable and that delivering the child would not compromise the right to life of the woman, there may be a right to have the pregnancy terminated by means of an early delivery, but there would not appear to be a right to have an abortion.
As noted above, where the risk to life of the woman emanates from suicidal ideation, the first limb of the test for accessing an abortion is fulfilled. This element of the decision in X has been subject to enormous amounts of criticism by anti-abortion advocates who are anxious that any legislation introduced would deal with suicide in a particular manner. However, there is no reason to put in place different or more stringent processes for determining whether or not any particular woman has a right to access an abortion where the risk to her life emanates from suicidal ideation. It must be borne in mind that in these cases – as well as cases where the risk emanates from physical health concerns – whether or not there is a risk to the life of the woman that can only be averted by termination of the pregnancy is a clinical decision. In my view, introducing different – and almost inevitably more burdensome – procedures to determine whether or not a woman has a right to access an abortion where the risk to her life arises from a matter of mental, rather than physical, health would appear not to appreciate the challenges often encountered by people with mental illness in seeking medical assistance. Furthermore, it may stigmatise mental illness by implicitly suggesting that women can and would ‘fake’ being suicidal for the purposes of accessing an abortion. In addition, differentiation in the context of suicidal ideation is not mandated by the legal test, which makes no distinction between mental and physical illness in this context.
5. Next Steps
For a number of political reasons, it seems likely that the legislative process will be completed by the summer. It is to be hoped that the legislation will in fact give proper effect to the existing right so that Ireland will not once more have to go through this process. However, it is inevitable that a broader debate about abortion will have to take place at some point in Ireland. The existing right is so limited as to result in situations approaching cruelty where women whose unborn children are not viable outside the womb must carry them to full term or go abroad for an abortion and women whose health – as opposed to lives – are at risk from their pregnancy cannot elect for an abortion in their own country. Article 40.3.3 has often been described as a peculiarly ‘Irish solution to an Irish problem’, but that problem is not going away and abortion is unlikely to be demoted from its status as the most taboo political subject in Ireland for quite some time yet.