Article 40.3.3, inserted following the Eighth Amendment referendum in 1983, provides that: “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.” Introduction
Article 40.3.3 was inserted into the Irish Constitution by a referendum that was held in September 1983. The background to this amendment will become clear as this essay attempts to outline some of the substantive issues relating to Article 40.3.3. Fundamentally the wording of Article 40.3.3 sought to grant rights on the life of unborn children, placing these rights on a par with the rights of the mother. It may seem extraordinary, but no definition of what constitutes the ‘unborn’ has ever been provided by the Constitution, in Legislation, or in any judgement. As will be shown, some judicial comments have been made about its meaning – but none definitive. At present, Abortion Law in Ireland is considered ambiguous, with Jennifer Schweppe disclosing in her book “the right to life of the unborn has never been so unclear.” In the foreword, Mrs Justice Catherine McGuiness states that it is “hard to disagree.” Extra clarification of this point is highlighted throughout this essay and the question that begs to be answered is what effect did the Eighth Amendment have on Ireland’s vague and unclear abortion law? Pre 1983
Early cases such as McGee indicate that abortion was illegal in Ireland up until 1982, this was particularly emphasised by Walsh J’s comments that the right to martial privacy could not extend to abortion and Schweppe also notes that there was “no question at that point in time other than that the judiciary believed that there was an unenumerated right to life of the unborn child in the Irish Constitution.” Articles 58 and 59 of the Offences against the Person Act 1861 criminalise women who ‘procure a miscarriage’. To this day these criminal laws remain on the Irish Statute books and are interpreted to criminalise abortion in all circumstances. This 1861 Act was also reiterated in the Health Act 1979. However, in reality the 1861 Act has limited application as the Constitution would be considered the core of any case. Given that Schweppe states that it is seemingly “incontestable” that abortion was illegal in Ireland up to 1982, the question may be asked why there was a need to develop anti-abortion law in Ireland. The momentum for this originated from various anti-abortion groups, in particular the Pro Life Amendment Campaign (PLAC). The key to the link between McGee and the debate on abortion arguably lies in the experience of the US Supreme Court which had used the concept of privacy, identified in the context of the use of contraception, to legalise abortion in certain circumstances. It was argued that McGee had similar potential and that a constitutional amendment was necessary in order to prevent an undemocratic usurpation by a future generation of Irish Judges of the right of the electorate to determine abortion policy in Ireland. The fear that McGee would lead to the liberalisation of Abortion Laws in Ireland was acknowledged in the Green Paper on Abortion. However, in general many Irish commentators did not believe that the Supreme Court would develop the unenumerated right to abortion. Professor James Casey described those who argue that abortion law in Ireland would be developed similarly to that of the US, as being “guilty of an absurdly mechanical view of the judicial process.” Professor James O’Reilly was even more assertive in declaring, “Any commentator who seriously suggests… a situation similar to Roe v Wade… [does not] understand all the issues involved.” Professor William Binchy, a key figure in the movement for a prolife amendment, replied to this. However Binchy also seemed to agree that the Supreme Court of the day would not follow the...
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