Sir, – Gerry Whyte writes that the "most obvious" interpretation of a repeal of the Eighth Amendment is that the people will have decided to remove all protection from the unborn ("Abortion on demand the legal outcome of repeal of Eighth Amendment", Opinion & Analysis, September 28th). I suggest that does not logically follow. The Eighth Amendment does articulate a right to life of the unborn, but goes on to prescribe that right as being equal to that of the mother. A more logical interpretation of any such repeal would be to say that the rights are no longer equal. What precisely that means is, of course, impossible to tell. That would be decided by the Supreme Court in due course. That is the difficulty with repeal alone – nobody knows precisely what they are voting for. For that reason, whatever one's views on the matter, I think the debate would be better served by a discussion on what should replace the Eighth Amendment. Repeal alone is effectively a vote for uncertainty, and I suggest the issue is too serious for that. – Yours, etc,
SIMON DONAGH,
Drogheda, Co Louth.
Sir, – Gerry Whyte seems to make two main points. The first is that that “the most obvious interpretation of any decision [to repeal the Eighth Amendment] is that the people will have decided to completely withdraw constitutional protection from the unborn”. By itself, this is a stretch. The hundreds of thousands of people who presumably would vote to repeal the Eighth Amendment would have hundreds of thousands of reasons for doing so, albeit many relating to themes of bodily autonomy, dignity of the individual, equal freedom, etc. Certainly, they’d come from different social, political and moral perspectives, which in turn would inform different takes on the various social, political and moral issues at stake. Some would no doubt favour no state regulation or “abortion on demand”; many would not (and my guess is most would not).
The point is that attributing a particular and rigid interpretation of a referendum vote as somehow representing “the will of the people” is, to put it mildly, questionable. The only clear implication of a repeal vote is that the Eighth Amendment would be repealed – that the 50 or so words that make up the amendment would no longer be part of the text of our Constitution.
But Prof Whyte makes a second point. This is that any legislation brought forward following repeal that limited or constrained the right of women to terminate pregnancies would be unconstitutional. The implication is that judges would strike such a law down, and that, in Prof Whyte’s words, “we would have arrived at a situation of abortion on demand”. (He is right to assume that such legislation would be brought forward, of course).
It is not entirely implausible that a judge would take the line suggested by Prof Whyte’s first point. Judges are human, and don’t always interpret legal text well (even if in this instances they’d be interpreting the lack of text!). But it is unlikely. What is even more unlikely is that more than one judge would take that line in a case brought challenging legislation limiting the right of women to terminate pregnancies.
This leaves aside the fact that Irish judges are reluctant to strike down legislation in the first place – even where they may feel on balance that the best interpretation of the constitutional provisions run counter to the legislation challenged. This reluctance is borne of a general deference to elected legislators; an acknowledgement that rights are hard to interpret, and that unless legislators get it very badly wrong, it is the legislators’ take on things that should prevail.
Prof Whyte has a tremendous body of work on human rights and constitutional law in the context of poverty. He has distinguished himself among Irish constitutional scholars in fighting that fight. But on this argument, I find his argument not at all persuasive. – Yours, etc,
Dr TOM HICKEY,
School of Law
and Government,
Dublin City University,
Dublin 9.
Sir, – Provisions on abortion at constitutional level are an aberration and Ireland is a global outlier in this regard. To suggest that repealing a provision that finds no parallel in any comparable jurisdiction would open the door to “abortion on demand” is scaremongering. – Yours, etc,
MARK KELLY,
Executive Director,
Irish Council
for Civil Liberties
Blackhall Place, Dublin 7.
Sir, – The interaction of criminal and constitutional law has meant that even in the highly restrictive circumstances that an abortion is currently permissible, medical practitioners may well consult legal counsel, seek the imprimatur of the High Court or peruse precedents to understand what is permissible.
It is time for abortion to be removed from the criminal law and regulated like any other medical procedure. The British Pregnancy Advisory Service, the Royal College of Midwives and 20 other organisations have called for such an approach in the United Kingdom. A robust regulatory framework already governs our healthcare services, and it is better placed to deal with this issue than the criminal law.
We need to think beyond repeal and the blunt instrument of the criminal law. – Yours, etc,
BRIAN DINEEN, LLM
Clontarf, Dublin 3.
Sir, – Senator Ivana Bacik writes in her letter of September 29th (September 29th) that repeal of the Eighth Amendment would not inevitably lead to "abortion on demand" as predicted by Gerry Whyte in his opinion piece. But the accuracy of Prof Whyte's prediction seems to be exactly what Senator Bacik and the Labour Party are banking on.
On February 16th, the Labour Party outlined its intention to hold a referendum on the Eighth Amendment if Labour were re-elected. Ms Bacik said that the Labour Party had approved draft legislation to be enacted in the event of the referendum being carried and described this legislation as “broadly in line” with the 1967 Abortion Act in the UK. She went on to deny that abortion in the UK is “abortion on demand”, despite the obvious fact that UK abortion clearly is abortion on demand.
So, Ms Bacik’s and the Labour Party plan is to repeal the Eighth Amendment and introduce a UK-style abortion regime in Ireland, exactly the type of scenario predicted by Prof Whyte. – Yours, etc,
WILLIAM REVILLE,
Waterfall, Co Cork.
A chara, – Prof. Fiona de Londras writes that she and others " . . . recommended that it might be wise to include a positively worded right in the Constitution to bodily integrity and the right to self-determination in medical matters" (September 29th).
Would that include a positively worded right in the Constitution to the bodily integrity of the unborn child? – Is mise,
PÁDRAIG McCARTHY,
Sandyford, Dublin 16.
Sir, – Gerry Whyte does not specify what “abortion on demand” means. I would venture that he is alluding to a system where a woman can have an abortion in any circumstances in which she no longer wishes to continue with the pregnancy. However, any common-sense observer can see this would not be the case. There will always be certain legal limits on the availability of abortion, such as how late into term it will be permitted.
However, Prof Whyte’s article is part of a discussion the people of Ireland need to be having.
Although deletion of the Eighth Amendment would remove the impediment to providing women with safe access to abortion in Ireland, repeal is only the first step in the process. Afterwards the Government will have to produce legislation to be passed by the Oireachtas.
The shameful inertia that followed the decision in the X case, with successive governments shirking their responsibility to legislate, only raising the issue when it could help them score points against rivals, demonstrates how easily the victory of the repeal movement could be neutralised through the reluctance of our representatives to translate the will of the people into functioning system of abortion regulated by legislation that all women who have the need will be able to access.
We need to be thinking about “enact” as well as repeal. The pressure we put on our representatives must extend to what happens next.
Part of this is about having a discussion, with our friends, families and communities, as well as our politicians, about what it is we want to see when the amendment is repealed.
This is our law. If the Irish people demand that the amendment is repealed, we must ensure that the promise of this repeal– safe, humane access to abortions – is delivered upon. – Yours, etc,
MARY CATHERINE
NAUGHTON,
Barcelona.