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Q&A: If the Eighth is repealed, what role would the Supreme Court play in abortion laws?

Could we see judicial interference? Constitutional expert Assistant Professor David Kenny examines the issue.

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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 

  • Given that the US Supreme Court frequently strikes down abortion laws passed in all 50 states as “unconstitutional on privacy grounds”, what role is it anticipated the Irish Supreme Court would play in determining Ireland’s future abortion laws were we to repeal our 8th Amendment?

THE ANSWER

This is a somewhat complex, technical question so we’ve drafted in Trinity College Assistant Professor David Kenny to help with the answer.

The constitutional expert says that it “not very likely the Irish Supreme Court would play such a significant role in Irish abortion law if the Eighth Amendment were repealed”.

Here is his answer, in full:

THE US SUPREME Court in the landmark case of Roe v Wade (1973) said that the constitutional right to privacy grounded a right to terminate pregnancy up to the point of viability.

This meant that most state’s abortion laws were unconstitutional, and led to the nation-wide liberalisation of abortion.

Though some of the strictures of the Court’s abortion jurisprudence were relaxed in the 1990s, it remains the case that the constitutional right of privacy does stop states from placing an ‘undue burden’ on access to abortion.

It is not very likely that the Irish Supreme Court would play such a significant role in Irish abortion law if the Eighth Amendment were repealed, but the reasons for this are complicated.

Judicial intervention in the abortion question in the event of repeal of the amendment was thought possible during the deliberation of the Citizens’ Assembly. This could have happened in one of two ways.

  • First, the courts could have held that, even with the Eighth Amendment removed, the unborn might have some other rights in the Constitution, either because of textually protected general right to life, or because of implied rights of the unborn that the Supreme Court had, in the 1970s and 80s, suggested might exist. These rights might have been used to invalidate a permissive abortion law after the referendum.
  • Alternatively, rights to privacy, autonomy, and bodily integrity of pregnant persons might be invoked to challenge a strict abortion regime in the absence of the Eighth Amendment. Though it was probably not at all likely, pro-life campaigners in the 1980s feared that the Irish Supreme Court might issue a judgment like Roe v Wade, and this was one of the core motivations for inserting the Eighth Amendment in the first place. This would again be possible in principle if the Eighth Amendment were repealed.

However, neither of these options are likely, for three reasons.

1. The government, following advice of the Attorney General (and the Citizens’ Assembly), decided to insert a provision in place of the Eighth Amendment rather than simply repealing it with no replacement. The new clause will read:

Provision may be made by law for regulation of termination of a pregnancy.

The idea of this clause is to affirm and clarify that the Oireachtas should be entitled to set policy in the area of abortion.

It does not stop the courts from intervening to invalidate an abortion law on the basis of constitutional rights, but it does suggest to the courts that they should be slow to take such a step. It suggests that they should defer to the judgement of the legislature on these matters. This probably makes the prospect of judicial intervention less likely.

2. The Supreme Court recently clarified in the case of IRM v Minister for Justice that the rights of the unborn were confined to Article 40.3.3 (commonly known as the Eighth Amendment) and that there were no other rights of the unborn protected elsewhere in the Constitution.

This makes it very unlikely that the courts would later invalidate a law allowing abortion on the basis of the rights of the unborn if the amendment were removed.

However, the Court also stated clearly that the legislature could – even without such constitutional rights – defend the unborn in law. This suggests, again, that the courts would be slow to intervene to invalidate a law for being too restrictive, as the US Supreme Court did in Roe v Wade.

3. The Irish courts are generally reluctant to invalidate major social policy laws on the basis of privacy and autonomy rights. While there was a time in the 1970s in particular when this was less true – the Supreme Court famously invalidated Ireland’s contraception ban on the basis of marital privacy – this has not been the view of the Irish courts for the past 20 years at least.

The courts are now very unlikely to change social policy in a sweeping way through constitutional rights.

For example, in the 2013 case of Fleming v Ireland, the Supreme Court refused to invalidate Ireland’s restrictive assisted dying laws on the basis of constitutional autonomy rights, saying that such decisions should not be made by the courts, but by the legislature. The Court made it clear that decisions like this simply should not be made by the judiciary. The Irish courts are, at the moment at least, very loath to take such major steps. Given this, it is very hard to foresee a time where an Irish court would give a judgment radically liberalising the law on abortion in the style of Roe v Wade.

One more thing

A more difficult question is what would happen if the government collapsed after the referendum passed but before legislation was enacted.

In this situation, the current law – the Protection of Life During Pregnancy Act 2013 – would remain in place unless and until it is replaced by the legislature.

This law is of course very restrictive.

An interesting question is what would happen if – during a delay in passing legislation – someone challenged this act as, say, a violation of the rights of pregnant persons for not allowing any termination on health grounds.

That is the kind of argument the courts might be willing to accede to, as it would not dictate a very liberal regime, but say that a very narrow regime could not be permitted without the Eighth Amendment.

However, the courts would be unlikely to just invalidate the law, as this would leave no law in place. If they were to intervene at all, it would probably be to declare the law unconstitutional, but suspend the invalidity for a period of time to allow the legislature to pass a new law. This is a new innovation of the courts, done three times in the past 12 months, most recently by the Court of Appeal last week when it invalidated a core section of the Mental Health Act 2001 but suspended the effect for six months.

David Kenny is an assistant professor of law at Trinity College Dublin. 

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