The Irish government has now announced that it will hold a referendum on repealing the 8th Amendment in 2018. Inserted in the Constitution in 1983, the 8th protects a constitutional foetal right to life which the state pledges to protect, as far as practicable, with due regard to the “equal right to life of the mother”. As a result, abortion is criminally prohibited except where there is a “real and substantial” risk to a pregnant person’s life. Outside of that, a pregnant person is forced by law either to remain pregnant or to find a way to circumvent the ban, most commonly by travelling to access abortion care abroad or by importing abortion pills and self-administering an abortion in Ireland: a serious criminal offence.
Irish law has been found to violate the ICCPR twice: in Mellet v Ireland and Whelan v Ireland. The referendum, then, offers an opportunity for Irish law to be brought into compliance with the ICCPR, but interestingly international human rights law (IHRL) has not played as prominent a role in the debates to date as might have been expected.
While the considerable activist movement towards repeal has drawn on IHRL in its arguments, and while both the Citizens’ Assembly and the Joint Oireachtas Committee that were established to consider potential constitutional reform did consider the IHRL arguments in favour of abortion law reform, in both cases members seemed clearly swayed by a recognition that the 8th Amendment is not preventing abortion: it is merely making it more difficult, expensive and isolating to access. Rather than being able to access abortion care within the health service, people were accessing abortion often on their own and isolated, either in another country or alone in their homes.
In other words, the realisation dawned that, as campaigner Cara Sanquest has put it, in Ireland the backstreet abortion had become the bedroom abortion. At some point, pragmatic realism appears to have taken hold in politicians who increasingly recognise and accept that the reality of the use and importation of abortion pills, in particular, makes abortion something that Irish law can no longer ignore; that, as the Taoiseach said, we can no longer export our problems and import our solutions.
The first step in making progress towards designing a more realistic and workable Irish abortion law is, inescapably, repeal of the 8th Amendment. As long as the 8th Amendment remains in the Constitution there is practically no space in which the Oireachtas can legislate for increased access to abortion.
Although repeal will be the first step in designing and implementing a new legal regime, it will not the last. Once the 8th Amendment is repealed three important processes will be required.
The first is the development and introduction of legislation on access to abortion. It looks likely that the Government will propose access to abortion on request within the first 12 weeks and then, after that, on grounds, with abortion access becoming more restricted as pregnancy proceeds. In doing that, international human rights law offers extensive guidance on ensuring that the law is designed and implemented to properly enable women’s decision-making; guidance that it is hoped will be heeded in designing proposed legislation.
There will also be a need for personal rights under the Constitution to be developed in pregnancy; since 1983 all rights claims related to pregnancy have been funneled through Article 40.3.3 and the constitutional acquis has largely calcified from conception to birth. There will now be an opportunity, through litigation, to revitalize rights to privacy, bodily integrity and so on in order fundamentally to shift the paternalistic medico-legal cultures that dominate maternal medical care in Ireland.
Finally, guidance and training for medics and lawyers involved in the administration of legislation will be needed to ensure that the new abortion law operates in a truly rights-based manner, and that pregnancy people are enabled to access abortion care and exercise agency in pregnancy.
It is, thus, primarily after repeal that international human rights law will be most useful to the reform of Irish abortion law. Before then, however, there is a long and fractious referendum campaign to be fought, and a decision to be made by the Irish people.
Máiréad Enright and I have written ‘Repealing the 8th: Reforming Irish Abortion Law’ which was published by Policy Press on 1 February 2018. It is available open access here, directly from Policy Press here, on Amazon here, and in Irish bookshops.