The Introduction of Article 40.3.3 to the Irish Constitution Caused More Problems Than It Solved.

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MODULE LA4440

The Introduction of Article 40.3.3 to the Irish Constitution Caused More Problems than it solved.

It can be argued that the introduction of Article 40.3.3 to the Irish Constitution did indeed cause more problems than it solved. This essay will explore the implications of said Article in both a national and international context and discuss the standing on the law on abortion both pre and post the introduction of this Article. Article 40.3.3 was inserted into the Constitution under the 1983 Referendum on the Eight Amendment to the Constitution and reads 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”.[1]

A Short History
Before the introduction of Article 40.3.3 in 1983 there was no doubt that abortion in all forms was illegal in Ireland. Under Section 58 of the Offences Against the Persons Act 1861 any attempt in “procuring an abortion” was an offence which was to be punished with “penal servitude for life”[2]. Although there are obvious problems with this law in a modern society – history has shown that Ireland has higher instances of illegitimacy, infanticide and self induced abortion stemming from a rigid ban on abortion,[3] there can be no doubt that it is clear and unambiguous. This was supported by many cases such as G v An Bord Uchtala[4] and McGee v the Attorney General[5]. In particular comments made by Walsh J in G v an Bord Uchtala. Where he said “the right to life necessarily implies the right to be born”. Any fears of the pro-life movement that the famous Roe v Wade[6] case in the United States would affect Irelands’ abortion laws through the right to marital privacy were unfounded as the still overwhelmingly Catholic Ireland was simply not ready for such a step.

The passing of the Eight Amendment in 1983 was an untested concept until the notorious X case[7] came to the fore in 1992. The sad facts of this case in which a 14 year old girl (known as X) became pregnant as a result of rape are well known. She travelled to England to procure an abortion but while there contacted Irish authorities to enquire as to whether a DNA sample from the foetus would assist in the identification of her rapist. As a result of this the attorney general secured an injunction (signed by Costello J) to prevent Miss X from leaving the country for 9 months. Miss X and her parents contested this injunction all the way to the Supreme Court on the grounds that it interfered with her freedom of travel. She eventually won the case, Finlay CJ stating

“In my view, it is common sense that a threat of self-destruction such as is outlined in the evidence in this case, which the psychologist clearly believes to be a very real threat, cannot be monitored in that sense, and that it is almost impossible to prevent self-destruction in a young girl in the situation in which this defendant is if she were to decide to carry out her threat of suicide”[8]

Previous abortion related cases such as SPUC v Grogan[9] had not nearly as a profound an effect on public opinion as the X case did. As a result of said X case a test was set out by Finlay CJ which is as follows

“If it is established that there is a real and substantial risk to the life, as distinct from the health, of the mother, which can only be avoided by the termination of her pregnancy, such termination is permissible”.[10]

This test, by all appearances was Chief Justice Finlay’s’ attempt to interpret Article 40.3.3 into a more practical format. The introduction of the Article could be viewed as a valuable step towards modernising Ireland’s stance on but the somewhat weak wording did cause problems. In particular, the failure to define the term “unborn” is highly problematic and controversial. Opinions on when a foetus becomes an unborn child are notoriously...
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