The effect of the proposed amendment would be to reduce the legal status of the unborn to that of an unprotected species of animal. Indeed, wildlife legislation, backed by EU directives, would give the unborn of some species of wildlife a distinctly greater protection than that available to an unborn human being in Ireland.
Much attention has been given to the headline element in the current referendum proposal, the repeal of the Eighth Amendment. The repeal of the current Article 40.3.3⁰ is not the whole story, however. One way or another, Article 40.3.3⁰ will remain with us. The 36th Amendment proposal is to replace the current text —a product of the 8th, 13th and14th Amendments to the Constitution— with a short new text. This substitute text is really the “small print” of the referendum and it will determine what a Yes vote would really mean in practice.
Most advocates of repeal are quite careful to focus and sanitise their message with a broad appeal to our sympathy for women —“Yes to Compassion”, “Yes to Care” and such like. Other repeal advocates strike a more aggressive tone, “Stop Policing My Body, Vote Yes.” They are noticeably reluctant to engage with the substance or detail of the proposal; I have yet to see a poster advocating “Vote Yes for More Abortion.”
The opposition are somewhat less reticent about the substance of the debate, using slogans such as “No to Abortion on Demand”, “Love Both” and “Licence to kill?” Over 150 lawyers have signed a Statement saying that “what is being proposed is not simply abortion in exceptional cases but a wide-ranging right to abortion.”
The country is thus divided between those who continue to acknowledge the equal right to life of the mother and unborn child, those who wish to remove the right to life of the unborn child in its entirety from the Constitution, and those who simply do not know what to do.
The greater part of the population is uncertain about the full meaning of a ‘Yes’ vote in the Referendum and what would happen next. Asking their politicians will not help, since — as I will explain — for the most part, they either do not know or will not say. The Referendum Commission has limited itself to telling us that a Yes vote will amend the Constitution and that a No vote will leave matters as they stand. They explain that a Yes vote would allow the Oireachtas to legislate for abortion on wider grounds than at present. Beyond that, they offer no analysis of the implications of the proposed change.
I believe that it is now urgent to examine the “small print” of this proposal and contribute to this analysis. When regulated abortion was introduced in Britain in 1967, few commentators foresaw the wholesale destruction of unborn human life that would ensue in the past 50 years. That was, in part, a failure of critical journalism. It is the function of our profession to ask questions and to draw the attention of the public to salient facts in public affairs, which are often hiding in plain sight. We must now turn our attention to those unseen facts.
The current Article 40.3.3⁰ is to be replaced with a very brief text, which reads —“Provision may be made by law for the regulation of termination of pregnancy.” This short sentence will be the sole constitutional foundation for the future relationship between mothers and their unborn children. It will also serve for the regulation of those who have the responsibility to care for them.
What are we to make of this new wording? This, after all, is the only text on which we as legislators actually have to make a decision. So what does it mean? We cannot accept this proposal blindly and just hope for the best. There are strong reasons for suggesting that, in practice, provision might not be made by law, that regulation might not be possible and that the termination of pregnancy might go altogether unregulated. While this state of affairs may be the ambition of a segment of the Yes side, I do not suppose that it is the intention of the Government who proposed this formula.
The first and most obvious point about the wording is what it does not say. The proposed text makes no reference whatever to a time limit for abortion, whether at 12 weeks, viability or otherwise. It provides no assurance that any specific time limit will ever be enacted by the Oireachtas or upheld by the Courts. Voters will be signing a blank cheque.
Next, we should “mind the gap” between what the Government apparently intended and the actual words of the 36th Amendment. The public record shows clearly that the wording proposed for our approval has been adopted on the assumption that the unborn would continue to enjoy legal protection. The Citizens’ Assembly voted that Article 40.3.3⁰ should be replaced with a constitutional provision that explicitly authorizes the Oireachtas to legislate for “the termination of pregnancy, any rights of the unborn, and any rights of the woman.” Last January, the Attorney General advised the Government against a simple repeal of Article 40.3.3⁰. He thought it could be argued that the unborn have residual rights under other Articles of the Constitution that would continue to restrict the power to legislate for abortion. The Government, therefore, decided on a revised Article 40.3.3⁰ “to expressly affirm that laws may be enacted by the Oireachtas providing for the regulation of termination of pregnancy.”
Announcing the referendum last January, the Taoiseach said “for most of us, it’s not a black and white issue; it’s one that is grey. A balance between the rights of a pregnant woman and the foetus or unborn.” If this was the Taoiseach’s intention, why does the proposed text contain no reference whatever to any balancing right of the unborn child? The assumption that the unborn had other implicit constitutional rights, which did not need to be re-stated in Article 40.3.3⁰, has proved to be a fundamental error of judgment. The Government grievously compounded this error by failing to respond when it was brought to light, and by quickly burying it in the hope that no one would notice.
On 7 March 2018, the Supreme Court ruled that “the only right of the unborn child as the Constitution now stands which attracts the entitlement to protection and vindication is that enshrined by the amendments in Article 40.3.3⁰ namely the right to life, or in other words, the right to be born.” In particular, the Supreme Court decided that the “natural and imprescriptible rights” of “all children” acknowledged in Article 42A do not apply to the unborn child. This is worth repeating. There are simply no other implicit rights of the unborn in the Constitution. The Referendum Commission booklet confirms this, “the Supreme Court has recently held that this is the only constitutional right of the unborn.”
This has enormous implications, which should have been immediately obvious to the Attorney General and to the Government. The last remaining right of the unborn would be removed by the forthcoming referendum. The proposed wording would do nothing to correct this. The Constitution would no longer recognise any right of the unborn that could be taken into account by the Oireachtas or the Courts in adjudicating a balance of rights between mother and child in abortion legislation. The unborn child would count for nothing at all on the scales of Justicia.
Astonishingly, the new text of Article 40.3.3⁰ was approved by Cabinet on the morning after this lengthy and complex Supreme Court decision was delivered. It is an impossibility that the Cabinet could have read it, assessed it and made an informed collective judgment on it in that time. Although the judgement had radically altered the basis on which the amendment had been drafted, the text was passed on the nod. Such was the haste to meet a self-imposed political timetable that no one in Government seems to have thought: “Hang on a minute, what does this decision really mean for the referendum?”
Nor can we assume that ‘the experts’ in the Department of Health had studied all of this in depth. Do they even now realise what they are inviting us to approve? Recent events, to the dismay and horror of many of us, have shown how fallible is their administrative expertise and attention to detail, even in matters of life and death. They seem to have been too busy not studying a litany of other more pressing matters. Would you entrust a loaded gun to a child?
Worse horrors lie in the detail. It was originally intended that the new Article 40.3.3⁰ would ensure that the Oireachtas could legislate contrary to the right to life of the unborn and in the interest of the rights of the mother. With all rights of the unborn removed, the text takes on a very different aspect. I propose in what follows to examine this short text a bit more closely. The key issue is to consider, in any legislative proposal that might follow the referendum, what restrictions on abortion might actually pass scrutiny in the Courts.
The Court would interpret the new text in its constitutional context. It would be inserted in Article 40.3, which deals with personal rights. That article begins with a general affirmation of unspecified personal rights in 40.3.1° —“TheState guarantees in its laws to respect … the personal rights of the citizen.” Moving from general to more particular guarantees, it continues in 40.3.2° “TheState shall, in particular, by its laws protect … the life, person, good name, and property rights of every citizen.” The unique instance of the intertwining of the right to life of a mother and her unborn child is then further specified in the current 40.3.3°, the repeal and replacement of which is the subject of the referendum.
Among the guarantees listed in 40.3.2° is an undertaking to protect the “person” of every citizen from attack. This concept includes personal rights that go beyond the basic right to life, but which do not have a specifically social dimension. Examples would be the right to integrity, to autonomy and to privacy. Human dignity involves the autonomy to make fundamental choices regarding one’s life. The Supreme Court in Re a Ward of Court (No. 2) recognized a right to be treated with dignity, which implied the autonomy to die a natural death rather than be kept alive artificially. They found that the Ward had the right to “autonomy and dignity in life and death.” In many jurisdictions, the right to personal autonomy is considered to include the right of a woman to terminate her pregnancy.
This then is the context in which the following text would be introduced, 40.3.3° —“Provision may be made by law for the regulation of termination of pregnancy.” Bearing in mind the disavowal of the right to life of the unborn (and the assumption, now discounted by the Supreme Court, that the unborn child has an implicit right to be considered in a termination of pregnancy), we can begin to draw logical inferences from the new text, in its proposed context.
We can take it that a “pregnancy” in this context is a transient state that will either conclude in the course of nature (with or without assistance), or be brought to a premature end by a deliberate human act (“termination”) before attaining its natural conclusion. Legal rules are made to regulate free human acts, not involuntary acts or happenings of nature, such as a miscarriage. From the fact that it may be regulated “by law,” it follows that a “termination of pregnancy” in accordance with law is to be regarded as a legitimate human choice, an act of personal autonomy, and not a criminal offence.
Suppose, for the sake of illustration, that Article 42A were repealed and replaced with the text, “provision may be made by law for the regulation of infanticide.” We would have to conclude that infanticide per se was no longer a crime and was now a legitimate choice or right, subject to possible conditions or limitations. The point of the illustration is that the form of words used in the proposed amendment of Article 40.3.3⁰ would also establish the “termination of pregnancy” as a legitimate human choice or personal right, subject to possible regulation.
If a “termination of pregnancy” were deemed an exercise of personal autonomy, in the absence of any acknowledgment of the right to life of the unborn child, to what extent could that right then be regulated by the Oireachtas?
The regulation of a personal right must respect the substance of that right and satisfy the tests of rationality and proportionality. Minister Zappone was reported recently to the effect that “the Oireachtas will be entitled to restrict access to abortion provided those restrictions are proportionate taking pregnant women’s rights into account.” We find an example of a regulated right in Article 40.6.1⁰ —“(ii) the right of the citizens to assemble peaceably and without arms” is subject to the limitation that “provision may be made by law to prevent or control meetings …” in the interest of public order and safety.
This leads us to the nub of the question —for whose benefit might the right to terminate a pregnancy be legitimately regulated? Obvious candidates would be the mother, the unborn child, and society in general.
Regulations designed to protect vulnerable pregnant women from undue pressure, unsafe practices or unscrupulous agencies would, of course, be rational and proportionate. They would also respect the substance of the right to abortion, and would thus be within the discretion of the Oireachtas.
On the other hand, regulations to restrict the substance of the right to abortion for the sake of preserving the lives of unborn children would fail the test of rationality and proportionality. The unborn child would have no residual constitutional rights to be put in the balance against the constitutional right of the mother.
This absolute disparity of rights is reflected in the use of the word “may” rather than “shall” in the proposed Article 40.3.3⁰. If a recognised subject of rights were involved, such as the “child” in Article 42A, the Constitution itself would have to insist that “provision shall be made …” for the specified measures. In the present case, however, there is no other personal subject of rights (“the unborn”) for whose sake restrictions on the right of the mother must be imposed. Accordingly, the proposed text merely permits or authorises the Oireachtas to regulate if it deems it appropriate.
If there were no remaining constitutional rights of the unborn, could effective rights be created by ordinary legislation? The effect of the proposed amendment would be to reduce the legal status of the unborn to that of an unprotected species of animal. Indeed, wildlife legislation, backed by EU directives, would give the unborn of some species of wildlife a distinctly greater protection than that available to an unborn human being in Ireland.
The complete abolition of the rights of the unborn flows from the warning issued by the Supreme Court, that the current Article 40.3.3⁰ represents “the only right of the unborn child as the Constitution now stands which attracts the entitlement to protection and vindication.” It would therefore be irrational and disproportionate for the law to deny to a pregnant woman the right to terminate her pregnancy for the sake of a non-existent constitutional right to life of her unborn child.
Regulations designed to protect the interests of society in maintaining a growing population might appear to justify a restriction on the easy availability of abortion. According to the Guttmacher Institute, 30% of all pregnancies in Europe were terminated by abortion in the period 2010-2014. Recent figures for England and Wales indicate an abortion rate of about 20%. Whatever the detail behind these statistics, abortion on this scale would clearly have a dramatic impact on the overall population and on national demographics.
This might lead the Oireachtas to limit the exercise of this right for the sake of the economy, but it is not at all clear that individual women of childbearing age could be made to bear the social burden of demographic policy in this way. If we consider the case of property rights, for example, we see that whereas the Constitution permits the State to tax everyone equally to meet the needs of society, it does not permit the State to confiscate individual property needed for public projects, unless the owner is compensated from the common fund.
This analysis suggests that any legislation to limit the availability of abortion substantially must be considered doubtful. Although the Supreme Court would normally endeavour to give the maximum leeway to the Oireachtas in this matter, it will inevitably be confronted with ‘hard cases’ in which individual women will show that their right to terminate their pregnancy has been irrationally and unreasonably curtailed for no demonstrable or legitimate purpose.
The proposed 12-week gestation limit, for example, is self-evidently arbitrary. Whose interests would it serve? A woman might reasonably claim that she needed to wait beyond 12 weeks until the unborn child was sufficiently developed to have it properly scanned and assessed before she could decide whether to carry it to term. If we discount the unborn child, it would seem irrational in the extreme to prescribe that in week 11 a pregnancy may be freely terminated, but a couple of days later it would trigger a criminal sanction with up to 14 years imprisonment.
Following the 36th Amendment, the new constitutional architecture would very likely require that the woman’s right be vindicated and the arbitrary limitation set aside. Likewise, the conditions under which abortion would be permitted up to viability would all have to respect the constitutional right of the mother and set aside the interest of the unborn child, who would have no say at all in the matter.
The supposition that the proposed amendment would allow the Oireachtas to limit the availability of abortion significantly must therefore be in serious doubt. The text is simply not fit for purpose, because it has been drafted on a fundamentally unsound assumption about implicit rights of unborn children in the Constitution.
We have looked at the direct constitutional implications of the proposed wording for the regulation of the termination of pregnancies. There would also be many secondary legal implications for liability in obstetric practice, lower standards in perinatal expertise and care, surrogacy and genetic experimentation, which are beyond the scope of this article.
The conclusion, I suggest, is reasonably clear. If we approve the proposed amendment to the Constitution, we will have established a constitutional right to abortion, which it will be very difficult to control or limit by legislation in any meaningful way. If we find we have indeed legalised abortion on demand, the Supreme Court might point to their fateful judgement of 7 March and say, “we told you so. You did not listen.”
Even if these difficulties were insufficient to persuade us of the fundamental inadequacies of the proposal, however, the political uncertainties attending the proposal must surely seal its fate. If the present Article 40.3.3⁰ were removed, it would soon be ‘open season’ for the unregulated termination of pregnancy.
The Referendum Commission notes, “the present legal position is therefore that it is lawful for a pregnancy to be terminated only where it poses a real and substantial risk to the life of the mother, including a risk of suicide. This is determined in accordance with the Protection of Life During Pregnancy Act, 2013.” That Act is authorised by the present Article 40.3.3⁰. If that provision were removed, the 2013 Act would inevitably be found to be unconstitutional because it would be in direct conflict with the new right to abortion.
The Courts might delay the application of a finding of unconstitutionality for a time to allow the Oireachtas to legislate. There is no guarantee however that the Oireachtas would actually be willing or able to agree on an effective replacement. For a start, an election in the months after the referendum is now very likely. The views of individual candidates on particular legislative restrictions will inevitably be sought on the doorsteps. When it comes to forming a Government, the extreme views of a handful of TDs holding the balance of power might settle the question for a time. And so on, election after election. It seems to me that the only way to remove the question of abortion from the political landscape for the foreseeable future is to reject this proposal and to leave well enough alone.