[Editor’s Note: This is Part II in our symposium on the one-year anniversary of the Chilean Constitutional Court’s abortion decision. The Introduction to the symposium is available here, and Part I is available here.]
—David Kenny, Trinity College Dublin, School of Law
The Chilean Constitutional Court’s Abortion decision of 2017 – upholding a Bill allowing for abortion in cases of threat to life, fatal foetal abnormality, and rape – empowered the Chilean legislature to regulate abortion. Opponents of abortion – who had petitioned the Court to deem the Bill unconstitutional – wished the Constitution to be strict in its limitations on the legislature. In this post, I wish to contrast this to the story of Ireland.
On May 25th 2018, 66% of Irish voters in a referendum voted resoundingly to remove Ireland’s strict constitutional restriction on abortion. This Irish vote was similar to the Chilean Court decision: it empowered the legislature to regulate abortion. It may illustrate that, in the long run, stricter constitutional bars do necessarily hold, and that when they give way, swift liberalisation may follow.
Article 19.1 of the Chilean Constitution of 1980 provides: “The law protects the life of the unborn.” An absolute ban on abortion which had persisted since the 1980s was replaced by the challenged law.
A similar constitutional protection for the unborn was introduced in Ireland by referendum in 1983. The new Article 40.3.3 (commonly known as the Eighth Amendment) read:
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.
Ireland had an absolute ban on abortion, and this amendment intended to secure this against judicial or legislative liberalisation. Removing the clause would require a referendum.
The meaning of this clause was expounded by the Irish Supreme Court in 1992. It held that the Constitution did not prevent – and indeed required – abortion in the cases where the life of the mother was in danger, including risk of suicide. However, the prevailing wisdom in Ireland was that Article 40.3.3 prevented any liberalisation of the law beyond threat to life.
This was never stated by the Irish courts, because legislation was never enacted to formally test these limits, but there are good reasons to believe that this understanding of the Irish clause would have been shared by the courts. Ireland’s constitutional provision is perhaps more specific and directive than Chile’s: in equating the right of the unborn to right to life of the mother, it seems to elevate the rights of the unborn over any other interests – such as health, autonomy, wellbeing etc – that might be balanced against it. The Supreme Court’s 1992 ruling did not suggest much legislative room for manoeuvre.
The strictness of the constitutional ban created many difficult cases, and in reality, Irish women travelled in their thousands to England every year to procure terminations that were unavailable in Ireland.
As a result, a campaign for constitutional change began, gaining significant momentum after 2013. Many thought that the political establishment – and the people themselves – would favour something like the Chilean Bill: abortion allowed on limited, defined grounds, for which where was broad consensus. However, from 2016, a more liberal consensus emerged.
A Citizen’s Assembly and a parliamentary committee each recommended that abortion should be allowed without restriction as to reason up to 12 weeks, and for certain listed reasons – such as threat to health or fatal foetal abnormality – after that. The government embraced this position, and this is what the Irish people approved in 2018: entirely removing the constitutional ban, with the expectation that liberal legislation will follow. For many, it was surprising that Ireland would take such a liberal position, but in the years that the Constitution delayed limited change for which there was broad public support, a consensus around more significant reform had developed.
Though the outer boundaries of the decision will surely be subject to question and debate, the Chilean Constitutional Court held that the constitutional provision protecting the life of the unborn does not disempower the legislature. It intended to give the legislature discretion in how to deal with the abortion and its possible criminalisation.
On May 25th, the Irish people affirmed this same idea: the legislature must be allowed to make complex social policy choices in this area. But to do this, the protection of the unborn had to be removed entirely, as it prevented a judicial ruling like the Chilean decision and a gradual legislative relaxation.
Those who lobbied for the Eighth Amendment in Ireland succeeded in stopping the liberalisation of abortion law for 35 years. But had the constitutional ban been less strict, the impetus for a referendum might not have been as great, and a more gradual relaxation might have occurred, to the benefit of all: Irish women would not have been, for so long, denied access to abortion in very difficult cases, and opponents could have had time to grapple with limited abortion before further deliberation on greater relaxation.
Constitutional strictness prevents compromise. The decision of the Chilean Court – which will give the politicians and people of Chile the power to deliberate and compromise on this divisive question – has much to commend it.
Suggested Citation: David Kenny, I-CONnect Symposium–The Chilean Constitutional Court’s Abortion Decision–Constitutional Constraints on Abortion Regulation: Chile and Ireland, Int’l J. Const. L. Blog, Aug. 2, 2018, at: http://www.iconnectblog.com/2018/08/i-connect-symposium-the-chilean-constitutional-courts-abortion-decision-constitutional-constraints-on-abortion-regulation-chile-and-ireland
 Constitutional Court of Chile, Decision STC Rol N° 3729 (3751)-17 CPT, August 28, 2017.
 In addition to the interesting contrast of circumstances described here, there are various similarities in constitutional interpretation of the Irish and Chilean clauses. Various facets of the determination can be seen in the Irish cases of Attorney General v X  1 IR 1, Roche v Roche  IESC 82,  2 IR 321, and IRM v Minister for Justice  IESC 14, all of which considered in detail the meaning of the Irish clause.
 See https://www.constituteproject.org/constitution/Chile_2015#s96
 See comments of the Minister for Justice introducing the amendment bill; 339 Dáil Debates, col. 1354-56 (Feb. 9th, 1983).
 Attorney General v X  1 IR 1. Reasoning similar to this can be found in the Chilean decision at para 40, where the Constitutional Court discussed that the cost of ending the life of the unborn, while high, was not comparable to the sacrifice of a person with full capacity.
 The Attorney General, the government’s influential legal advisor, suggested that it would be unconstitutional to legalise abortion even in case of foetal abnormalities incompatible with life.
 In many ways, Irish clause does expressly what opponents of the Chilean law suggested as the best interpretation of Art 19.1 – an active duty to defend the unborn. See para 43 of the Chilean Constitutional Court decision.
 The Thirteenth Amendment to the Constitution, passed in 1992, protected the right to travel even if the intention of the travel was to secure a termination of pregnancy.
 Though there had been opposition to the constitutional ban in Ireland throughout its existence, in 2013, a dedicated and focussed campaign to remove it began following the enactment of new legislation to clarify the law.
 See First Report and Recommendations of the Citizens’ Assembly, June 29th, 2017, available at <https://www.citizensassembly.ie/en/The-Eighth-Amendment-of-the-Constitution/Final-Report-on-the-Eighth-Amendment-of-the-Constitution/Final-Report-incl-Appendix-A-D.pdf>;  Report of the Joint Committee on the Eighth Amendment to the Constitution, December 2017, available at <https://data.oireachtas.ie/ie/oireachtas/committee/dail/32/joint_committee_on_the_eighth_amendment_of_the_constitution/reports/2017/2017-12-20_report-of-the-joint-committee-on-the-eighth-amendment-of-the-constitution_en.pdf>. In the interests of full disclosure, I should note that I appeared before each of these bodies.
 Instead of the protection for the life of the unborn, Article 40.3.3 will now read: “Provision may be made by law for regulation of termination of a pregnancy.” See Thirty-sixth Amendment to the Constitution Bill, 2018.
 For an analysis of the proposed Bill that will be put before parliament, see David Kenny and Pat Leahy, “What would replace the eight amendment: the text, the law and the politics”, The Irish Times, 24th May 2018, available at < https://www.irishtimes.com/news/ireland/irish-news/what-would-replace-the-eighth-amendment-the-text-the-law-the-politics-1.3505902>.
 Chilean Constitutional Court judgment, Para 31: ‘The Legislature does not have any reservation or direction to ban abortion; its wording is simply enabling the Legislature to regulate protection’.