A Discerning Church Listens – Session 3 – What will be the likely legal consequences of a yes/no vote? Professor Gerry Whyte

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LEGAL ANALYSIS OF PROPOSALS TO AMEND IRISH ABORTION LAW

This paper is in two sections.[1] The earlier, and much shorter section, examines the legal consequences of voting “No’ in the forthcoming referendum. The second section examines the legal consequences of voting ‘Yes”.

Legal consequences of voting “No”

Currently Irish law permits abortion only where, as a matter of probability, there is a real and substantial risk to the life of the mother, including a threat of suicide, that can only be averted by an abortion. The risk does not have to be inevitable or immediate. Procedures for determining whether such a risk exists are set down in the Protection of Life during Pregnancy Act 2013.

Abortion is prohibited in all other cases, though the law recognizes the right of women to travel abroad to obtain an abortion and also the right to obtain or disseminate information about abortion services abroad. In particular, abortion is not permitted in the case of fatal foetal abnormality or other disability, in the case of a risk to the health of the mother or in the case of pregnancy resulting from rape or incest (unless abortion is necessary to avert a risk of suicide).

In the event of a “No” vote, the law will remain as described above.  

Legal consequences of voting “Yes”

The Government proposals for changing public policy in relation to abortion fall into two categories. First, the People will be invited to replace Art. 40.3.3 with the following statement:

Provision may be made by law for the regulation of termination of pregnancies.

(Art. 40.3.3 currently reads: ‘The State acknowledges the right to life of the unborn and, with due regard to the equal right to the life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.

This subsection shall not limit freedom to travel between the State and another state.

This subsection shall not limit freedom to obtain or make available, in the State, subject to such conditions as may be laid down by law, information relating to services lawfully available in another state.”)

Second, if that constitutional change is accepted by the People, the Government has set out proposals for the type of legislation that would subsequently be enacted to regulate the availability of abortion in Ireland –

http://health.gov.ie/wp-content/uploads/2018/03/General-Scheme-for-Publication.pdf

In this analysis, I propose to address two issues arising from the Government’s proposals. First, would the proposed legislation be immune from constitutional challenge; and if not, what constitutional principles would apply to any constitutional challenge to the legislation? Second, what type of abortion regime would likely result from the proposed legislation?

Constitutionality of proposed legislative scheme

The proposed constitutional amendment consists of two elements – the enabling provision set out above confirming the power of the Oireachtas to legislate for abortion and the repeal of Art.40.3.3.

http://health.gov.ie/wp-content/uploads/2018/03/General-Scheme-for-Publication.pdf

Enabling provision

The Government has argued, correctly in my opinion, that the enabling provision would not preclude constitutional challenge to any such legislation. Were it intended to provide for such immunity, the amendment would contain a formula, similar to those found in Art. 28.3.3 and Art. 29.4.6, that ‘Nothing in the Constitution shall be invoked to invalidate any law enacted by the Oireachtas that provides for the termination of pregnancy’ or that ‘No provision of this Constitution invalidates any legislation enacted to provide for the termination of pregnancy.’

That said, the existence of the enabling provision unquestionably reinforces the presumption of constitutionality that would attach to legislation dealing with abortion (as it attaches to all legislation enacted since 1937), making it less likely for a constitutional challenge to succeed.[2]

Repeal provision

I turn now to consider the proposal to repeal the Eighth Amendment. I have argued elsewhere that a decision in 2018 simply to delete the Eighth Amendment would not take us back, constitutionally speaking, to 1983 before that Amendment was introduced.[3] If deletion occurred, there would be a superficial similarity between the position post-deletion and the position before 1983 in that the text of the Constitution in both eras would contain no explicit reference to abortion. However, the route to that position would be very different in the two cases. In 1983, before the Eighth Amendment was passed, the Constitution was silent on abortion because the People had not spoken; if, in 2018, the Eighth Amendment is repealed, the Constitution would be silent on abortion because the People had spoken and had decided to remove constitutional protection for the unborn. That difference, in my opinion, would mean that in most cases[4] the Constitution would have to be construed now as protecting only the constitutional rights of the mother to autonomy, privacy and bodily integrity, all of which would support a constitutional right to an abortion, and that it would be constitutionally impossible to legislate for a restrictive abortion regime.

The recent decision of the Supreme Court in M v Minister for Justice and Equality[5] would seem to offer some support for at least the first part of that proposition insofar as the Court concluded that the only constitutional protection currently available to the unborn is that provided to the unborn’s right to life by Art. 40.3.3.[6] In light of this, it is not possible to argue that if the Eighth Amendment is deleted, the unborn would continue to enjoy some vestigal constitutional right to life protected by other provisions of the Constitution.

At the time I made this argument, I had assumed that the Government might have wanted to legislate for a limited abortion regime in the aftermath of repeal of the Eighth Amendment and the purpose of my argument was to point out that such an option would be ruled out by simple repeal. However, that assumption is clearly no longer correct as, a point I make below, the Government proposals are very liberal. Consequently, the political significance of this argument has been overtaken by events.

Turning to its legal significance – after I made my argument, it was challenged by supporters of repeal on the ground that, post repeal, the Oireachtas could still take the interests of the unborn into account in legislating for abortion. Those who dismissed my argument pointed to the experience in other jurisdictions where the social value of foetal life was taken into account in judicial and/or legislative deliberation. However, they did not identify any jurisdiction whose fundamental law had been amended to remove an explicit reference to the right to life of the unborn. Consequently, I do not consider the experience of other jurisdictions to be directly in point in relation to this argument. Thus, I still stand over my original argument about the effect of repeal simpliciter.[7]

Even if I am wrong on this point, this does not affect my analysis of the question of what test would be applied by the courts should future abortion legislation be constitutionally challenged.  In the recent M case, the Court said that its conclusion that the only constitutional right of the unborn is the right to life protected by Art. 40.3.3:

does not mean that … the unborn child is either constitutionally or legally ‘invisible’.

The Court went on to say that its conclusion did not adversely affect the entitlement of the State

to take account of the respect which is due to human life as a factor which may be taken into account as an aspect of the common good in legislating.

While this last observation about the common good is made in the context of the existing constitutional position and does not address the question of how repeal of Art. 40.3.3 might affect our legal understanding of what the common good requires, let us assume that the Supreme Court might take the same view post-repeal of the Eighth Amendment. On this assumption, the Oireachtas could, in legislating for abortion, should the Eighth Amendment be repealed, take account of the interests of the unborn. However, it is not open to the Oireachtas, acting alone by way of legislation, to confer constitutional status on interests not otherwise protected by the Constitution; and so I remain of the view that if repeal of Art. 40.3.3 occurs, the unborn child will be deprived of all constitutional rights.

If I am correct in this, then any legislation enacted following the deletion of Art. 40.3.3 would no longer be seeking to balance the competing constitutional rights of the mother and the unborn and therefore would not enjoy the benefit of the very deferential test of judicial review contained in Tuohy v Courtney[8] wherein the Supreme Court held that legislation that seeks to balance competing constitutional rights would be upheld by the courts unless it was ‘so contrary to reason and fairness as to constitute an unjust attack on some individual’s constitutional rights’.[9] Instead, the constitutional validity of such legislation would depend on whether restrictions on the mother’s constitutional rights were rationally connected to a legitimate objective, impaired the mother’s rights as little as possible, and were such that the effects on the mother’s rights were proportional to the objective. This proportionality approach theoretically requires a more searching judicial scrutiny of legislation that restricts constitutional rights (here, the rights of the mother) than the reasonableness approach of Tuohy v Courtney.

It seems to me, moreover, that in deciding what is a legitimate objective and in deciding whether restrictions on the mother’s constitutional rights were proportional to that objective, the courts (and the Oireachtas) would have to take account of the decision by the People to remove the only constitutional right enjoyed by the unborn.  So, even though there has been academic criticism of the application of proportionality review by the Irish courts on the ground that there has been vast variation in the strength with which judges applied the individual elements of the test, should the Eighth Amendment be deleted, a judicial failure to apply the test rigorously so as to protect the constitutional rights of the mother would arguably frustrate the will of the People as directly expressed in the referendum.

Accordingly, while the Oireachtas in 1983 could arguably have legislated for the restrictive abortion regime that currently applies in this jurisdiction (on the ground that the legislation sought to balance the constitutional rights of both mother and unborn baby), I consider that if Art. 40.3.3 is deleted, any such statutory regime would unquestionably be regarded as a disproportionate interference with the mother’s constitutional rights to bodily integrity, autonomy and privacy. Moreover, in determining the extent of the mother’s constitutional rights in this context, the Irish courts could very well look to US Supreme Court decisions such as Roe v Wade[10] as persuasive precedents. As is well known, US constitutional law recognizes that a pregnant woman has a right to abortion until such time as the foetus becomes viable.

In summary, though the Oireachtas might be able to have regard to the interests of the unborn as an aspect of the common good when legislating for abortion, given that those interests would no longer amount to a constitutional right to life if the Eighth Amendment is deleted, it would be much more difficult to challenge legislative restrictions on the mother’s constitutional right to have an abortion than if legislation was attempting to balance the mother’s constitutional right to an abortion with the constitutional right to life of the unborn.

Impact of proposed legislation

I turn now to consider the proposed legislation that the Government would advance in the event of the referendum passing.[11]

The main elements of the proposals are as follows:

(i) Abortion would be lawful where there was a risk to the life of the woman or a risk of serious harm to her health, where the unborn child was not yet capable of sustained survival outside the womb and where it was appropriate to carry out the abortion in order to avert the risk; a distinction would not be drawn for this purpose between the physical and mental health of the woman; and any assessment in relation to the termination of pregnancy where the life or the health of the woman is at risk would be made by two appropriate medical practitioners (which include all registered medical practitioners on the Medical Council register) or one such practitioner in the event of an emergency risk to health.

ii) Abortion would be lawful where there was an immediate risk to the life, or of serious harm to the health, of the mother and it is immediately necessary to carry out the termination of pregnancy in order to avert that risk. The provision of the Bill dealing with this ground does not refer to the viability of the unborn child which seems to imply that an abortion could be carried out in an emergency case even where the unborn child had reached viability. That said, it would have to be shown that doctor had a reasonable opinion formed in good faith that the abortion was immediately necessary to avert the risk to the life or health of the mother and so if it was possible to save the life of the unborn child without endangering the life or health of the mother, the carrying out of an abortion would be an offence if it could be shown that the doctor had not acted in good faith.

iii) It would be lawful to terminate a pregnancy without gestational limit where the unborn child has a foetal abnormality that is likely to result in death before or shortly after birth. It would seem to follow from this that abortion would not be permitted solely on the ground that the unborn child had a non-fatal, serious medical condition. However a question that needs to be answered in this context is whether a medical diagnosis that the unborn had such a medical condition could adversely affect the mother’s mental health to such an extent that she could be entitled to an abortion under ground (i) above.

iv) The law would be amended to permit abortion without specific indication within a gestational limit of 12 weeks, though a time period of 72 hours would have to elapse between the initial assessment by a medical practitioner and the carrying out of the abortion.

v) The legislation would provide for a right of conscientious objection (except where a termination is necessary in an emergency situation to avert an immediate risk to the life, or of serious harm to the health, of the woman) but any person exercising such right would have to make arrangements for such transfer of care of the pregnant woman concerned as might be necessary to enable her to obtain an abortion.

Much attention has focused on the fourth element above that permits termination on any ground within the first 12 weeks of the pregnancy. It is also worth noting that the proposals envisage abortion on the ground of a risk of serious harm to the physical or mental health of the mother provided the foetus is not yet viable. A similar ground is provided for in s. 1(1)(a) of the UK Abortion Act 1967, as amended, subject to a gestational limit of 24 weeks. This provision permits abortion where the continuance of the pregnancy would involve risk, greater than if the pregnancy was terminated, of injury to the physical or mental health of the pregnant woman or any existing children of her family. In 2016, 97% of all abortions in England and Wales were carried out pursuant to this provision.[12] In 2016, there were 696,271 live births[13] and 190,406 abortions in England and Wales. If one discounts miscarriages (on the ground that one cannot know how many women would have had an abortion if they had not first miscarried), just over a fifth of all pregnancies in England and Wales ended in abortion that year.

In the same year, 3,265 women travelled from Ireland to the UK for an abortion. Pro-choice groups contend that, in addition, approximately 1,100 women in Ireland access abortion pills every year. [14]  Thus it would appear that approximately 4,400 women residing in Ireland terminated their pregnancies in 2016.  The birth rate here that same year was 63,897[15] giving an approximate number of 68,300 pregnancies here in 2016. If the experience in England and Wales is replicated here, with one in six pregnancies ending in abortion, we can expect to see the annual Irish abortion rate go from approximately 4,900 to more than 13,600.

Perhaps the Irish experience will be different. The proposed legislation does not fix a precise gestational limit in relation to this ground, referring instead to the viability of the foetus which does not appear to happen before the 23rd week of gestation. However, in that context, it should be noted that in 2016, 92% of all abortions in England and Wales were performed under 13 weeks gestation.[16]  So, even if the Irish legislation is interpreted as imposing a slightly shorter gestational limit than 24 weeks, this is unlikely to have any significant impact on the number of women availing of abortion on this ground.

Perhaps the Irish requirement of a risk of serious harm to the health of the mother will be construed more narrowly than s.1(1)(a) of the UK Abortion Act has been. However if it is not, then on the basis of the above figures, one would have to have some concern that, whatever about the proposed changes rendering abortion legal and safe for the mother, abortion in Ireland is unlikely to be rare.

Gerry Whyte

 

Notes

[1] An earlier version of this paper was published in Doctrine and Life, April 2018, at p.6.

[2] Thus in McD v Ireland [2017] IECA 81 in which a constitutional challenge was taken to a provision of the Bail Act 1997 which gives effect to the Sixteenth Amendment of the Constitution, Birmingham J in the Court of Appeal said: “As a post-1937 statute, the Bail Act of course enjoys a presumption of constitutionality. Moreover, one cannot ignore the fact that the legislation follows on from and was designed to give effect to the will of the people expressed in a referendum.”

[3] See The Irish Times, 28 September 2016.

[4] The position of the husband who contest his wife’s claim for an abortion and of the parents of a pregnant girl under the age of 16 who similarly contest their daughter’s claim is uncertain insofar as the Irish courts have not yet been asked to rule on whether or not parents of minors and spouses have constitutional rights in this situation and, if so, how these rights might be balanced against the undoubted constitutional rights of the mother. One could confidently assert that any such rights could not override the mother’s right to seek a termination pursuant to the Protection of Life during Pregnancy Act 2013 in vindication of her right to life.

[5] [2018] IESC 14. This judgment is available here – http://www.courts.ie/Judgments.nsf/09859e7a3f34669680256ef3004a27de/2ca87fab5fd004ff8025824a00329063?OpenDocument 

[6] See para.10.62 of the judgment.

[7] And was grimly gratified to see this position described by Noel Whelan in The Irish Times as a minority position but not ‘fringe’ – The Irish Times, 19 January 2018.

[8] [1994] 3 IR 1, [1994] 2 ILRM 503.

[9] [1994] 3 IR 1 at 47, [1994] 2 ILRM 503 at 514.

[10] 410 US 113 (1973).

[11] While the Government has produced a draft Bill outlining how it would propose to regulate abortion if the Eighth Amendment is deleted, it should be noted that the passing of the Referendum would not legally bind the Oireachtas to enact this Bill nor, if the Bill was enacted, preclude the Oireachtas from subsequently amending it.

[12] Abortion Statistics, England and Wales: 2016, (Department of Health, January 2018), para.2.15. This report is available here – https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/679028/Abortions_stats_England_Wales_2016.pdf

[13] Births in England and Wales: 2016 (Office for National Statistics, 2017), available here – https://www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/livebirths/bulletins/birthsummarytablesenglandandwales/2016

[14] See https://www.independent.ie/irish-news/news/three-irish-women-a-day-order-abortion-pills-online-as-study-finds-them-safe-and-effective-35727076.html (last accessed on 14 March 2018). In addition, 25 pregnancies were terminated in 2016 pursuant to the Protection of Life during Pregnancy Act 2013 – see Notifications in Accordance with Section 20 of the Protection of Life During Pregnancy Act 2013 – third Annual Report 2016 (Department of Health, 2017)

[15] Vital Statistics Yearly Summary (CSO, 2017), available here – http://www.cso.ie/en/releasesandpublications/ep/p-vsys/vitalstatisticsyearlysummary2016/

[16] Abortion Statistics, England and Wales: 2016, (Department of Health, January 2018), para.2.25.

 

Professor Gerry Whyte Biographical Information

  • Lecturer in Law at TCD
  • Was member of the Commission for Assisted Human Reproduction: disagreed with the majority proposals to permit Embryonic Stem Cell Research
  • Married with one daughter
  • Main interests in Public Interest Law; Law and Social Exclusion
  • He has used Catholic Social Teaching in some of his writing
  • Co-author/Editor of Kelly’s The Irish Constitution
  • Has recently signed a group letter form lawyers against Repeal (Not sure if the letter has appeared in the media yet.)
  • Native of Mullingar Co. Westmeath

 

Biography from TCD Website

Gerard F Whyte BCL (NUI), LLM (NUI), LL.D. (NUI), BL, MA FTCD (1990), Barrister-at-Law. Gerry Whyte is a Professor in Trinity Law School and a Fellow of Trinity College. The author and co-author of books on public interest law, constitutional law and trade union law, he has also edited books on aspects of law and religion and Irish social welfare law and has published extensively in the areas of public interest law, constitutional law, social welfare law and labour law. He is also active in a number of social justice and legal aid organisations and is a former member of the Commission on Assisted Human Reproduction and of the Steering Group of Irish Council of People with Disabilities. His research interests are public interest law, constitutional law, labour law, social welfare law, law and religion.