Sir, – I read with interest Prof. Gerry Whyte's letter on Saturday(September 30th). Prof Whyte claims that removing the Eighth Amendment would remove all constitutional protection from the unborn and thus would mean that no "legislator or judge could constitutionally deny a woman the right to terminate her pregnancy based on her undoubted constitutional rights to bodily integrity, privacy and autonomy. Restricting a right to abortion in such circumstances would have to entail extending some constitutional protection to the unborn in order to counterbalance the constitutional rights of the mother". In this, I am sorry to say, I am in strong disagreement with his assessment.
At present, the Eighth Amendment limits pregnant women's rights to bodily integrity, privacy and autonomy by reference to a constitutional right of the foetus. This limitation can be varied only by constitutional amendment (hence the call for a referendum), but removing the constitutional protection of the life of the foetus does not mean ridding the State of its interest in preserving foetal life per se. Pregnant women's constitutional rights would continue to be limited – as all of our rights are at all times – by reference to, for example, the public good. The key difference is that any new limitations would have to be crafted by reference to an objectively justifiable public interest (eg the preservation of foetal life) and proportionate to that aim. Thus, for example, any limitations would need to be justified by reference to things such as medical science, international human rights, international best practice in medicine, the health and wellbeing of pregnant women, and the right of women not to be pregnant without their consent. Now they are simply justified or even compelled by the text of the Constitution even if, as is the case, they fly in the face of comparative practice, medical best practice, international human rights law, and pregnant women's health, autonomy, privacy, and bodily integrity.
Thus, the fact that the people might choose to remove the constitutional protection from the unborn does not mean that they would have removed the State’s right to regulate; rather the Oireachtas would be compelled to regulate in an evidence-based, effective, and proportionate way. Otherwise, yes, the regulation introduced might well be an unconstitutional interference with women’s constitutional rights. This is a difficult task, but it is no more difficult in this jurisdiction than it is in any other, including countries with arguably similar “cultural” experiences in respect of women’s autonomy, such as Spain.
When the inevitable referendum on repeal of the Eighth Amendment takes place, there will no doubt be a raft of constitutional lawyers arguing what it does, does not, might and cannot mean to amend or remove Article 40.3.3.
In such circumstances I consider it vital that we acknowledge three important things. First, removal of the Eighth Amendment would not create a legal vacuum; it would, rather, shift the constitutional boundaries within which the State can legislate. Second, the removal of a constitutionally entrenched “right to life of the unborn” does not rid the protection of foetal life of social significance or of its status as an objective justification for statutory regulation. It simply forces the state to effectively and constitutionally justify any such regulation. Third, the word of a constitutional lawyer is not the word of God. Any one of us might be wrong, including me, and including Prof Whyte. But what none of us should be is tempted to present hypotheticals as certainties. We can only make predictions based on how the Constitution generally works, comparative experience, and the role of judicial common sense in interpreting and applying constitutional law.
In this particular case, all of those things point far more in the direction of objectively justifiable and carefully crafted statutory regulation of abortion being permitted when the Eighth Amendment is removed than in the development of an unassailable, unlimited, and unregulatable constitutional right to access abortion without any restrictions or limitations whatsoever. – Yours, etc,
Prof FIONA de LONDRAS,
Birmingham Law School,
University of Birmingham
Edgbaston, Birmingham.
Sir, – The debate stimulated by Gerry Whyte’s analysis of the legal position that would prevail should the people decide to repeal the Eighth Amendment is both timely and welcome. If a similar debate had taken place in the United Kingdom prior to the Brexit referendum, that country would not now be in the position where the only answer British government ministers can offer on what Brexit means is that it means Brexit.
It is to be hoped that voters in any referendum on the Eighth Amendment would have before them a detailed statement of the Government’s intentions with regard to the legislative and other regulatory provisions it would bring forward to give effect to the removal of the constitutional protection for the equal right to life of a mother and her unborn child.
As is clear from the correspondence in your columns, repeal has many meanings for your readers. It will not be enough for the Government to tell them that repeal means repeal. – Yours, etc,
PADDY BARRY,
Killiney, Co Dublin.
A chara, – Even if our courts did resist the call for abortion on demand on the basis of other existing constitutional rights, most likely the European courts would force it upon us. So repealing the Eighth would lead, it seems to me, inevitably to abortion on demand in this country. All this talk to the contrary is essentially obfuscation on the part of those for whom this inevitable outcome is, in fact, the ultimate goal. – Is mise,
Rev PATRICK G BURKE,
Castlecomer, Co Kilkenny.