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Q&A: Can the 'hard cases' be dealt with while still retaining the Eighth Amendment?

It’s been a big question in recent days.

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In our Q&A: Eighth Amendment Referendum series, we are answering questions our readers have submitted in relation to the upcoming vote on 25 May.

THE QUESTION

A number of people have asked a version of this question. Here are some of those queries: 

  • Is it possible to legislate for victims of rape and medical emergencies “outside” of the 8th amendment? 
  • Is this referendum needed? Can’t we just amend the 2013 act to cover rape, ffa, incest and underage pregnancies. 
  • Why is the referendum to repeal the 8th and not amend it? Can Article 40.3.3 not be amended to allow for unrestricted terminations up to 12 weeks and cases where there is a risk to the life of the mother or fatal foetal abnormality up to 23 weeks? 
  • I don’t understand why they couldn’t repeal the 8th with proposed legislation to allow abortion in the case of rape/incest/fatal foetal abnormality.

THE ANSWER 

We examined previously whether legislation could be enacted for cases of fatal foetal abnormality if the Eighth Amendment was retained, leaving Article 40.3.3 unchanged. Successive ministers, on the advice of their Attorney Generals have said it is not possible. That investigation is here. 

Here we will look at the possibility that the Eighth Amendment could be further amended to deal with what have become known as the ‘hard cases’ of rape and incest, as well as fatal foetal abnormality. 

WOMEN WHO BECOME pregnant as a result of incest or rape can not currently access lawful terminations in Ireland for that reason.

Women who have received diagnoses that their babies will die in the womb or shortly after birth cannot access lawful terminations in Ireland.

These situations have been dubbed ‘hard cases’ throughout this debate.

The Protection of Life During Pregnancy Bill 2013 does allow for the termination of a pregnancy in Ireland, but only in three specific circumstances:

  • A “real and substantial risk” of loss of life from physical illness
  • A risk of immediate loss of life from physical illness in an emergency
  • A “real and substantial risk” of loss of life from suicide

If a woman is pregnant as a result of rape, but doctors do not believe there is a real and substantial risk of loss of life, she will not be able to access a termination.

If a woman is pregnant and has had a fatal foetal abnormality diagnosed, but there is no risk to her own life, she will not be able to access a termination.

Many people, including eminent lawyers and former judges, have made claims during this campaign that fatal foetal abnormality, rape and incest cases could be legislated for without repealing the Eighth Amendment, or by amending Article 40.3.3.

The latter has become a point of legal discussion – with the legal world divided.

A group of about 200 lawyers advocating for a No vote have said such pregnancies could have been dealt with by an amendment to the Constitution.

Writing in TheJournal.ie, Benedict Ó Floinn, a practising barrister in the Four Courts, argued:

It was legally possible for the Government to have crafted a proposal which was limited to the ‘hard’ cases that pluck at the heartstrings of us all. They chose not to. Instead, they gave in to the demands of a small minority who believe that they know what is best for us and who advocate for abortion on demand.

On the opposite side of the debate to O Floinn is Senior Counsel John Rogers, who served as attorney general from 1983 to 1987 and is a member of the Lawyers – Together for Yes group comprising 1,076 people. He recently explained why he believes attempting to make Constitutional provision for terminations in cases of rape, although possible, would be problematic.

“You’d have endless case law, cases going to the courts, on the question of whether or not there was a rape at all,” he told reporters during a press conference.

“That would be an interminable process. It would end of course, but it would be a very dilatory, slow process because it would involve the making of an inquiry about whether or not there had been a rape or a consent. Which is the equivalent of a criminal trial in effect.”

What was examined?

The Oireachtas Committee on the Eighth Amendment, which made recommendations to the government before the referendum was called, did look at the possibility of legislating specifically for cases of rape and incest.

Its final report expressed concerns about doing this:

While the Committee accepts that it should be lawful to terminate a pregnancy that is the result of a rape or other sexual assault, it has concerns about whether the recommendation of the Citizens’ Assembly can be implemented in practice.

These concerns arise from:

(a) the difficulty presented in the verification of a rape or sexual assault, and

(b) the opinion of the Committee that:

  • (i) there is a need to avoid the further traumatisation of a victim of rape or sexual assault that would arise if some form of verification was required;
  • (ii) a requirement for a verification process is likely to be complex or even unworkable in practice.

The committee also noted the “underreporting of rape and sexual offences to An Garda Síochána and the authorities generally in Ireland”.

It said it would be “unreasonable to insist on reporting as a precondition for exercising any right to terminate a pregnancy that has resulted from rape or sexual assault”.

It is one of the reasons the committee recommended permitting terminations with no restriction as to reason up to 12 weeks. (See more on that here.)

The committee came to its conclusions, in part, after testimony from constitutional experts, including assistant professor at Trinity College David Kenny, Professor Fiona de Londras and Mary O’Toole, SC, who described suggestions that very specific grounds for abortion could be laid out constitutionally as “unworkable” and lacking flexibility.

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However, O Floinn insists that we should scoff at the idea that only simple issues on which we are all agreed should make the Constitution.

TheJournal.ie asked the lawyers’ group advocating for a No vote and the Save the 8th campaign to outline what such an amendment to Article 40.3.3 could look like and how they would see it working.

TheJournal.ie also asked if the groups had any proposal in relation to their suggestion that could be provided as a response to our readers’ questions on the matter.

No details were provided at time of publication.

However, two spokespeople said that ‘anything could be included in the Constitution’ once the people have voted to do so. They pointed to the amendments to the same article in 1992 (which allowed for the freedom of travel and the right to information) as examples or possible templates.

Detail 

Without a detailed proposal to examine, we returned to the scenarios that the Constitutional experts ran through at the Eighth Amendment Committee hearings for the purposes of answering this question.

Here are some of the important phases of that day that dealt with this specific idea.

Fiona de Londras said the following about removing Article 40.3.3 and replacing it with a provision that permits abortion in limited circumstances:

“Such a provision would produce some legal certainty as it would make it clear that legislation for abortion is permitted in respect of the specified grounds, subject to those grounds being defined with sufficient specificity to allow for legislative action.

A change of this kind would greatly limit the power of the Oireachtas to legislate and would not address the most prevalent reasons for women in Ireland accessing abortion care.

“It would produce an unduly complex and detailed constitutional provision. It would constrain the power of the Oireachtas to react to medical, scientific or political developments in the future. It would be cumbersome and impractical, unlikely to stand the test of time and it would be inconsistent with the recommendations of the Citizens’ Assembly.”

David Kenny told the committee from the outset he was “happy to discuss” any proposed replacement to the current Article 40.3.3, and responded to questions following de Londras’s above testimony. He said:

“Professor de Londras discussed the repeal with specific grounds, and I agree with her on that. She described it as cumbersome and impractical and that is exactly right.

It would require a level of detail that is incredibly difficult to do in constitutional text or some other constitutional mechanism.

“It would lock in something that would require substantial elaboration and leave no room to adapt it on the ground or change it if a problem arose. It is very hard to do from a constitutional law perspective.”

Senior Counsel Mary O’Toole added: “Putting a long list or elaborate provisions into the Constitution runs the risk that it will end up meaning something a little bit different to what it was intended to mean. In any event, once it is interpreted, then that interpretation is likely to pertain for a long period.

“One does not have the flexibility one would have in legislation where one could amend or repeal if there was public disquiet about it. One would need another referendum to the change it…

The point I am making is that putting in a long amendment may actually not be helpful because once it is interpreted, it is inclined to be fixed in a way that is very difficult to unfix if it causes any disquiet. The benefit of legislation is that it can be amended much more easily than the Constitution, a change to which would require a referendum.

Answering another specific question about rape from a deputy, de Londras told the committee:

“There are a couple of potential challenges that probably would be the case if one was trying to specify rape or incest in a constitutional or legislative sense. The first is around the process use of proof and qualification. How would somebody actually establish that they are legally permitted to access abortion on the basis of those grounds? Would it require engagement with criminal justice systems? Would it require verification by a medic? In either case, it is likely to be quite damaging and also difficult to work…

While I understand entirely the concern to make sure people in those situations might be able to access abortion care, if they should wish to do so, that can be achieved under different means such as health grounds or grounds on request up to a certain limit.”

The trio talked of three countries that do lay out grounds for lawful terminations in their constitutions - Kenya, Somalia and Swaziland.

“As regards other European states and constitutional courts, there are some courts that have dealt with similar issues,” explained de Londras.

“It is perhaps particularly interesting to talk a little about the Slovak Republic because in that jurisdiction there is a recognition that prenatal life is worthy of protection, but there is no right to life. The way the court has dealt with that issue is to state regulation of abortion is permissible but that one cannot disturb the essence of the rights women hold under the constitution…

“It might be worth noting that the German constitutional court relatively early on in its jurisprudence on abortion did recognise a prenatal right to life, but it has progressively accepted that it does not preclude making abortion services available within certain schemata or certain limitations.

“The constitutional courts of Austria, France, the Netherlands, the Slovak Republic and Portugal – the list may be longer, but that is my understanding of it – have all refused to recognise a prenatal right to life.”

You can read more from the expert witnesses at the committee here.

What is possible?

There is agreement across the legal world that the constitution can be amended to list a number of scenarios, including fatal foetal abnormality, rape and incest.

This could be done through the passing of a referendum (separate to the one being held on 25 May) which asks a specific question to amend Article 40.3.3.

However, the lawyers who looked at the possible scenarios in the event of such an amendment coming to pass have said the outcomes would be unworkable.

Reporting by Sinéad O’Carroll and Michelle Hennessey. 

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TheJournal.ie Team

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