Sir, – We are writing to clarify some of the likely legal consequences of a Yes vote in the May 25th referendum.
Last month, in the MM case, the Supreme Court confirmed that, before birth, the foetus does not enjoy any constitutional rights other than the right to life under the Eighth Amendment. This does not mean that, if the referendum passes in May, the Constitution would prevent the Oireachtas from legislating to protect foetal life before birth. Irish law already makes this clear. Rights are not the only constitutional tools for protecting important societal values. In 2009, in Roche v Roche, the Supreme Court held that embryos created by the IVF treatment process did not enjoy constitutional rights but are entitled to respect. In MM itself the Court said that the State is entitled, through legislation, to give effect to the respect that is due to foetal life as a dimension of the common good.
In Germany, the Czech Republic, Canada, the United States and elsewhere, constitutional courts have permitted proportionate interference in women’s reproductive rights in the interests of protecting foetal life for the common good.
Proponents of a No vote in the referendum have argued that we can expect to see an Irish equivalent of the United States Supreme Court's judgment in Roe v Wade if the Eighth Amendment is repealed. What they do not say is that the decision in Roe, and its successor, Planned Parenthood v Casey, permitted states to regulate abortion access. In keeping with these decisions, many American states now have very conservative abortion laws.
If the referendum passes, the Protection of Life During Pregnancy Act 2013, will remain in force initially. However, respect for women’s constitutional rights to bodily integrity, liberty, equality and privacy would likely require change to our abortion legislation. That said, because these rights are not absolute, the state can introduce proportionate restrictions on access to abortion care, in the interests of the common good. The general scheme of a Bill to Regulate Termination of Pregnancy, published by the Minister for Health in March, fits this model. In providing for abortion on request up to 12 weeks, Ireland would be in line with most European countries. In restricting abortion access after 12 weeks to cases of risk to life, risk of serious harm to health, and fatal foetal impairment, the law would be more restrictive than that in many European countries. The proposed mandatory 72-hour waiting period before accessing abortion in the first trimester is also conservative by European standards. Reasonable people may disagree as to what any future abortion legislation should look like. However, a Yes vote is a vote to remove the harmful Eighth Amendment from the Constitution, enabling regulation of abortion under law, and access to care at home for Irish women who need it. To present matters otherwise is to ignore, or to seek to misrepresent, the reality of the legal regulation of abortion in comparable countries, and the content of our own constitutional law. – Yours, etc,
MAIREAD ENRIGHT,
Senior Lecturer in Law,
Birmingham Law School;
FIONA DE LONDRAS,
Professor of Global Legal Studies,
Birmingham Law School;
EOIN DALY,
Lecturer in Law,
NUI Galway;
Senator IVANA BACIK,
Trinity College Dublin;
RUTH FLETCHER,
Senior Lecturer in Law,
Queen Mary,
University of London;
WENDY LYON,
Solicitor;
AOIFE O'DONOGHUE,
Professor of Law,
Durham University;
COLIN MURRAY,
Senior Lecturer,
Newcastle University;
VICKY CONWAY,
Associate Professor of Law,
Dublin City University;
AISLING McMAHON,
Associate Professor in Biolaw,
Durham University;
ALAN GREENE,
Associate Professor,
Durham University;
SINEAD WILLIAMS,
Trainee Solicitor;
GEAROIDIN McEVOY,
PhD Candidate,
Dublin City University;
KATIE DAWSON,
Barrister;
MATTHEW DONCEL,
Trainee Solicitor;
CATHERINE FORDE,
Barrister;
JULIE McCANDLESS,
Senior Lecturer,
Kent Law School;
BARBARA DAVIDSON,
Solicitor;
SIMONE GEORGE,
Solicitor;
JENNIFER SCHWEPPE,
Lecturer in Law,
University of Limerick;
CHRISTINE RYAN,
SJD Student,
Duke Law;
KIERAN McNULTY,
Postgraduate Student,
London School of Economics;
NÓRA NÍ LOINSIGH,
Barrister;
SHUBHANGI KHARMAKAR,
Ex-Treasurer,
Association of Medical Students in Ireland;
MICHAEL FEALY QC;
GEMMA HAYES,
Legal Secretary;
ANNE-MARIE KELLY,
Solicitor;
MARGUERITE BOLGER SC;
ELIZABETH FERRIES,
Information Rights Programme Manager,
International Network of Civil Liberties Organisations,
Irish Council for Civil Liberties;
FÉLIM Ó MAOLMHÁNA,
Trainee Solicitor;
DARRAGH MACKIN,
Partner, KRW Law, LLP;
EVIN MOONEY,
Student,
Edinburgh University;
LAURA FOLEY,
Trainee,
European Parliament;
ALAN DP BRADY,
Barrister and Adjunct Lecturer,
Trinity College Dublin;
SANDRA DUFFY,
PhD Candidate,
NUI Galway;
BRÍD NÍ GHRÁINNE,
Sheffield University Law School;
COLIN SMITH,
Barrister;
MAEVE O'ROURKE,
Barrister;
JUDY WALSH,
Lecturer,
University College Dublin;
DENISE ROCHE,
Legal and Policy Officer,
National Women's Council of Ireland;
DAISY HICKEY,
FE1 Candidate;
LEWIS MOONEY,
Barrister;
ALANA FARRELL,
PhD Candidate,
University of Birmingham;
EMMA HUTCHINSON,
Barrister;
MARIE FLYNN,
Barrister;
SHAUNA BRUDER,
Legal Counsel;
SINÉAD GLEESON,
Trainee Solicitor;
BÉIBHINN O'CONNOR,
Law student;
EILEEN LYNCH,
Trainee Solicitor;
TARA ROCHE,
Solicitor;
SINÉAD RING,
Senior Lecturer,
Kent Law School;
EILIONÓIR FLYNN,
Director and Senior Lecturer,
Centre for Disability Law & Policy,
NUI Galway;
SEÁNEEN SULLIVAN, LLB;
CLAIRE BRUTON,
Barrister;
CLAIRE O’CONNELL, BCL, LLM;
CIARA DOWD;
JACK NEA BL;
HANNA BYRNE, BCL MSc, LIBSD;
NIALL FAHY,
Barrister;
GRÁINNE DUGGAN,
Barrister;
ALISON HOUGH,
Law Lecturer.
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