Ireland has one of the world’s most restrictive abortion law regimes. Following a referendum in 1983, the 8th Amendment of the Irish Constitution was inserted in the form of Article 40.3.3, which “acknowledges the right to life of the unborn” as “equal” to the right to life of pregnant women. Ireland thus became the first country to explicitly protect foetal life in its Constitution. This not only prevented abortion in Ireland, but also prevented the distribution of information about abortion and greatly frustrated women’s freedom to travel for the purposes of accessing abortion elsewhere. The 8th Amendment ushered in an extremely repressive regime that left women unable to exert reproductive autonomy, regardless of the circumstances and conditions of their pregnancy.
In the early 1990s this was somewhat relaxed when further referenda inserted into the Constitution the rights to travel and to access information. But abortion was still only possible if three conditions were met: (i) the life of the pregnant woman was subject to a real and substantial risk; (ii) the risk could only be averted by termination of the pregnancy; and (iii) the foetus was not yet viable so that abortion (rather than early delivery) was the appropriate mechanism of termination. This remains the case and is now governed by the Protection of Life During Pregnancy Act 2013.
Abortion is still prohibited in all other circumstances, including what is known as ‘fatal foetal abnormality’ (FFA). For people who find that their foetus has an FFA and decide that abortion is the appropriate choice, there are few options: it is an offence for medical practitioners to arrange an abortion elsewhere; abortions in such cases in the UK are expensive and can be traumatic; and there is a persistent stigma around abortion in Ireland that makes it difficult to access appropriate healthcare afterwards. Recently, the UN Human Rights Committee (UNHRC) found that Amanda Mellet, whose foetus has an FFA, suffered violations of her rights to freedom from inhuman and degrading treatment; privacy and bodily integrity; and, interestingly, freedom from discrimination as a result of Ireland’s abortion law regime. In light of this finding, the challenge now for Ireland is how to secure compliance with international law.
The challenge arises because it is the Constitution itself — as determined by a referendum and interpretation by the Supreme Court in Attorney General v X — that is the source of the incompatibility. While constitutional standards do not enjoy any special status vis-à-vis international law (i.e. states cannot use their constitutions to claim exemptions from or justify non-compliance with international law), the practicalities of compliance are genuinely challenging. Governments cannot guarantee that the conflict between the constitutional standard and the international standard will be resolved where the only means to do so is referendum. However, a government also cannot attempt to justify non-compliance by reference to popular will where it does not give the People the option to (re)assess their will through a new referendum.
The Irish people voted on abortion in 1983, 1992 and 2002, but no referendum has ever offered the opportunity to liberalise abortion law. The Taoiseach (Prime Minister) has committed to convening a ‘Citizens’ Assembly’ to consider inter alia revisiting the 8th Amendment, and the UNHRC’s decision is expected to expedite this. However, to take the UNHRC’s decision as outlining ‘all’ that has to be done to make Irish abortion law compliant with human rights law and basic conceptions of bodily integrity, autonomy and self-determination, would be to mitigate the cruelty of the 8th Amendment only in a very particular kind of circumstance (FFA) without addressing the overall dilemma for pregnant women in Ireland. Thus, it is imperative that the terms of reference for the Citizens’ Assembly are expansive and allow for every option to be considered, including placing a positive statement of the right to self-determination in all medical matters into the Constitution.
The likelihood of that happening, however, seems low as long as the Government seems unwilling to have ‘big’ and difficult conversations about the status of the foetus, autonomy and self-determination, choice, medical care and medico-legal culture, belief, and morality. While decisions like the UNHRC’s can prompt political action, they cannot compel this difficult, uncomfortable, but necessary national conversation. Only political leadership and courage can do that. We wait to see whether that will be the legacy of the promised Citizens’ Assembly.