—Eoin Carolan, University College Dublin
The recent death of a woman from septicaemia following a miscarriage has focused attention on the legal regime regulating the carrying out of abortions within Ireland. Since the Constitution was amended in 1983 to insert a provision recognising the right to life of the unborn, the issue of abortion has been a consistent, if sporadic, source of public controversy in Ireland. Coming, as it did, at a time when the government was already considering its response to a recent European Court of Human Rights ruling that Ireland’s abortion regime is in breach of the Convention, the death increased the pressure on Ireland’s political class to engage with an issue which successive governments have sought to avoid. That culminated with this week’s announcement by the Government of the manner – if not the detailed content – of how it intends to proceed to regulate the availability of abortion in Ireland.
While the case has attracted much publicity and comment, a full investigation of the circumstances surrounding the death has yet to be carried out. As such, a number of matters remain unclear. This includes the important question of whether the death would have been avoided if a termination had – as the couple reportedly requested – been carried out at an earlier stage of the miscarriage. With the facts undetermined, it would plainly be inappropriate to speculate about the constitutional rights or wrongs of this tragic case.
The point of this piece is instead to provide some brief background to Ireland’s constitutional position and to identify some of the aspects of the current regime that have given rise to particular difficulties: an exercise which may have wider significance, given the recent trend in various American states to follow the Irish approach of conferring constitutional protection on the unborn.
In 1983, a majority of voters approved a proposal to amend the Constitution by inserting the following text as a new Article 40. 3. 3:
“The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right”.
The proposal for an amendment was prompted by concerns that the Griswold-like recognition of a right to martial privacy by the Irish courts in McGee v. A.G. would ultimately lead to a Roe v. Wade-type ruling from the Supreme Court.
Although the question of abortion remained – and remains – capable of provoking strong feelings on both sides of the argument, the issue was one with which the main Irish political parties proved generally reluctant to engage. The perception seems to have been that the political costs of taking action on such a controversial and divisive question were sufficiently high that it should be avoided if possible. Furthermore, the political pressure of the issue was somewhat dissipated by the proximity to Ireland of a more liberal abortion regime in the United Kingdom. Thus, the Irish authorities presided over a system which effectively regarded the prohibition of abortion as a moral and constitutional imperative but which was simultaneously aware that substantial numbers of Irish women travelled to the United Kingdom each year for the purpose of carrying out an abortion: perhaps a classic example of the Irish solution to an Irish problem.
The relative political complacency over this situation was disrupted, however, by the litigation in A.G. v. X in 1992. This concerned an attempt by the Attorney General, in purported performance of the State’s obligation under Article 40. 3. 3, to obtain an injunction preventing a teenage rape victim from travelling to the United Kingdom for an abortion. The case attracted substantial public comment and ultimately led to a ruling by a majority of the Supreme Court that “if it is established as a matter of probability that there is a real and substantial risk to the life, as distinct from the health, of the mother, which can only be avoided by the termination of her pregnancy, such termination is permissible, having regard to the true interpretation of Article 40,s.3, sub-s. 3 of the Constitution”. In circumstances where psychological evidence indicated that there was a risk of suicide if the pregnancy continued, the majority held that termination was constitutionally permissible.
The decision in X was followed by further referenda in 1992 and in 2002 which cumulatively confirmed the existence of a right to travel, a right to information concerning overseas abortion services, and that the test of a “real and substantial risk to the life of the mother” could be satisfied on either physical or psychological grounds. This remains the position under the Constitution at present.
Despite the relative clarity of the constitutional position on abortion since 1992, Ireland’s abortion regime has continued to cause difficulties in practice.
First of all, there has been a noticeable reluctance on the part of successive governments to introduce legislation giving effect to the Supreme Court’s decision in X. This has led to a problematic situation in which patients and doctors must look to an 1861 statute criminalising abortion and a lengthy Supreme Court decision, as construed by professional medical bodies, for guidance as to the availability or otherwise of an abortion in particular cases. It was this uncertainty which the European Court of Human Rights relied on in finding Ireland in breach of Article 8 of the Convention in A, B & C. v. Ireland, concluding that “the uncertainty generated by the lack of legislative implementation of Article 40.3.3, and more particularly by the lack of effective and accessible procedures to establish a right to an abortion under that provision, has resulted in a striking discordance between the theoretical right to a lawful abortion in Ireland on grounds of a relevant risk to a woman’s life and the reality of its practical implementation”.
Secondly, the text of Article 40. 3. 3 has generated significant uncertainty about the permissibility or otherwise of various unanticipated medical or scientific developments. While the Supreme Court has clarified that the “unborn” does not include the pre-implantation embryo, substantial ambiguity remains over the legality of a range of activities including stem cell research, fertility treatment and surrogacy. Once again, governments have proved reluctant to legislate on any of these issues. Indeed, the fact that there is a clear constitutional dimension to these questions seems to have provided both a political incentive and a pretext to allow these questions to be determined on an ad hoc basis by the courts.
Finally, while the decision in X provided some clarity on the constitutionality of abortion, the circumstances of the case highlight an inherent difficulty with the text of Article 40. 3. 3 which continues to exist: namely, the problems posed by its insistence on an a priori and acontextual equivalence between the rights of mother and unborn. While the notion of rights-holders as equal has obvious force in political rhetoric and (perhaps) moral philosophy, it poses clear problems for a court in cases where the rights come into conflict. Constitutional law is, in many cases, all about assessing the relative value of rights in a particular context. Determining that balance in advance in a way which ignores the possibility of conflict means that the text of Article 40. 3. 3 has, in many respects, little value when that conflict occurs. The struggles of both the majority and minority in X to identify factors which would justify their decision underline the difficulties – from the perspective of both practical reasoning and democratic legitimacy – which face a court in effectively choosing between rights which the Constitution states to be equal.
Regardless of one’s personal views on abortion policy, Ireland serves as a warning of the risks associated with the hasty constitutionalisation of complex or difficult issues. Poor draftsmanship has certainly exacerbated the problems with the Irish position. Hard cases, it would appear, are an inevitable consequence of bad law.
However, it seems reasonable to suggest that some of these difficulties would have arisen even under a better drafted amendment. By their generalist nature, constitutions are ill-suited to resolving complex issues. It seems unrealistic to expect a constitution to contain the sort of detailed substantive and procedural rules necessary to operate even a limited form of abortion regime. Yet, addressing a specific policy issue by means of a generalist provision is likely to give rise in other contexts to interpretative ambiguities and unanticipated consequences.
Furthermore, the Irish experience suggests that the ‘resolution’ of a controversial issue at the constitutional level may discourage political action by providing sufficient legal authority, however imprecise, to make legislative inaction a viable, if inefficient, option. Where the costs of political decision-making are high, the incentive for politicians of having those costs borne by another institution may be too tempting to avoid. The reality is that a constitutional amendment which was argued to be necessary to prevent the judiciary from adjudicating on abortion has instead led to a situation in which difficult issues of policy have been almost entirely left to an unhappy Supreme Court to determine. As Ireland’s hard cases and ambiguous uncertainties show, this is a highly unsatisfactory way to regulate complex questions.