–Christina M. Akrivopoulou, Adjunct Lecturer, Democritus University of Thrace
The new Irish Law on “Protection of life during pregnancy” acknowledges the potential risk for the pregnant woman’s life as a reason justifying abortion, and represents the greatest evolution regarding the liberalization of abortions in Ireland since the 19th century. The Act, which amended the previously absolute ban on abortions within the Irish Constitution, was signed and enacted into law on July 31, 2013, without being referred to the Irish Constitutional Court.
The Law amended Article 40.3.3 of the Irish Constitution by introducing three exemptions in the absolute protection of unborn life in the Irish legal order.
First, Article 7 of the new Law permits abortion whenever illness poses a risk to the life of the pregnant woman. The potential risk must be certified by two practitioners and should be carried out by an obstetrician at an appropriate medical institution. Article 8 allows for abortion whenever an emergency poses a risk of loss of life from physical illness, and a practitioner decides in favor of the procedure. Lastly, the amendment makes abortion possible when three different practitioners certify that the pregnant woman is a suicide risk. Nevertheless, the new Law does not create exemptions allowing abortions in cases of rape or sexual abuse; abortion in these cases is still criminal. And of course, the law maintains the overall criminalization of abortion in Ireland, which is penalized by up to fourteen years of imprisonment).
The new law, with its slight liberalization of abortion policy, comes after a long history of an extremely restrictive legal framework rooted in the country’s strong Catholic identity, and a correspondingly long struggle for less severe policies. Abortions have been banned in Ireland ever since the 1861 Offences Against the Person Act. This restriction was made explicit in the Irish Constitution due to a 1983 referendum that gave unqualified protection to the unborn. Before the liberalizing law of this year, Article 40.3.3 of the Constitution read as follows: “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. This subsection shall not limit freedom to travel between the State and another state. This subsection shall not limit the 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.” According to Article 40.3.3. travelling abroad was in fact the only option for Irish women in order to access abortion medical services legally.
The first step that challenged this highly restrictive regime was taken by the Irish Supreme Court in the case Attorney General v. X ( 1 I.R. 53-54 (Ir. S. C.)). The case concerned a 14-year-old rape victim who was initially denied the right to access abortion services by the lower Irish courts even though she appeared to be suicidal. In an important judgment, the Irish Supreme Court reversed the lower courts and held that an imminent risk of suicide could justify abortion.
The X case produced a fruitful deliberation within Irish society and led to a 2003 referendum that affirmed suicide as a reason justifying access to abortion procedures. The European Court of Human Right’s decision in A, B, and C v. Ireland (Νο 25579/05, 16 December 2010) also had an important impact on gradually liberalizing abortion policy in the country. The ECHR held that the subject of abortions is an ethical matter within which domestic governments enjoy a substantial margin of appreciation. Nevertheless, the Court condemned partly condemned existing Irish policies, and its reasoning illustrated both the undue burden imposed on the pregnant women, the legal uncertainty surrounding aspects of the regime, and the chilling effect produced by existing laws.
The new Law is a great step forward regarding the liberalization of abortions in Ireland, particularly given that Ireland, along with Poland, are the two most restrictive members of the Council of Europe on the abortion issue. This Bill helps move towards achieving a fair balance between the right of the pregnant woman to her privacy and autonomy and the protection of unborn life, a value so deeply cherished by the Irish legal order. Hopefully it is a step that will be followed by many others.
Suggested Citation: Christina Akrivopoulou, Liberalizing Abortion in Ireland: The New Legal Framework, Int’l J. Const. L. Blog, August 1, 2013, available at: http://www.iconnectblog.com/2013/08/liberalizing-abortion-in-ireland-the-new-legal-framework