Letter to the Irish Times April 9 2018

Sir,

We are writing to clarify some of the likely legal consequences of a ‘Yes’ vote in the May 25th referendum.

Last month, in the MM case, the Supreme Court confirmed that, before birth, the foetus does not enjoy any constitutional rights other than the right to life under the 8th Amendment. This does not mean that, if the referendum passes in May, the Constitution would prevent the Oireachtas from legislating to protect foetal life before birth. Irish law already makes this clear. Rights are not the only constitutional tools for protecting important societal values. In 2009, in Roche v. Roche, the Supreme Court held that embryos created by the IVF treatment process did not enjoy constitutional rights but are entitled to respect. In MM itself the Court said that the State is entitled, through legislation, to give effect to the respect that is due to foetal life as a dimension of the common good.

In Germany, the Czech Republic, Canada, the United States and elsewhere, constitutional courts have permitted proportionate interference in women’s reproductive rights in the interests of protecting foetal life for the common good.

Proponents of a ‘No’ vote in the referendum have argued that we can expect to see an Irish equivalent of the United States Supreme Court’s judgment in Roe v. Wade if the 8th Amendment is repealed. What they do not say is that the decision in Roe, and its successor, Planned Parenthood v. Casey, permitted states to regulate abortion access. In keeping with these decisions, many American states now have very conservative abortion laws.

If the referendum passes, the Protection of Life During Pregnancy Act 2013, will remain in force initially. However, respect for women’s constitutional rights to bodily integrity, liberty, equality and privacy would likely require change to our abortion legislation. That said, because these rights are not absolute, the state can introduce proportionate restrictions on access to abortion care, in the interests of the common good.

The General Scheme of a Bill to Regulate Termination of Pregnancy, published by the Minister for Health in March, fits this model. In providing for abortion on request up to 12 weeks, Ireland would be in line with most European countries. In restricting abortion access after 12 weeks to cases of risk to life, risk of serious harm to health, and fatal foetal impairment, the law would be more restrictive than that in many European countries. The proposed mandatory 72 hour waiting period before accessing abortion in the first trimester is also conservative by European standards.

Reasonable people may disagree as to what any future abortion legislation should look like. However, a ‘Yes’ vote is a vote to remove the harmful 8th Amendment from the Constitution, enabling regulation of abortion under law, and access to care at home for Irish women who need it. To present matters otherwise is to ignore, or to seek to misrepresent, the reality of the legal regulation of abortion in comparable countries, and the content of our own constitutional law.

Sincerely, (in order of signature)

  1. Máiréad Enright, Senior Lecturer in Law, Birmingham Law School
  2. Fiona de Londras, Professor of Global Legal Studies, Birmingham Law School
  3. Eoin Daly, Lecturer in Law, NUI Galway
  4. Senator Ivana Bacik, Trinity College Dublin
  5. Ruth Fletcher, Senior Lecturer in Law, Queen Mary, University of London
  6. Wendy Lyon, Solicitor
  7. Aoife O’Donoghue, Professor of Law, Durham University
  8. Colin Murray, Senior Lecturer, Newcastle University
  9. Vicky Conway, Associate Professor of Law, Dublin City University
  10. Aisling McMahon, Associate Professor in Biolaw, Durham University
  11. Alan Greene, Associate Professor, Durham University
  12. Sinead Williams, Trainee Solicitor
  13. Gearoidin McEvoy, PhD Candidate, Dublin City University
  14. Katie Dawson, Barrister
  15. Matthew Doncel, Trainee Solicitor
  16. Catherine Forde, Barrister
  17. Julie McCandless, Senior Lecturer, Kent Law School
  18. Barbara Davidson, Solicitor
  19. Simone George, Solicitor
  20. Jennifer Schweppe, Lecturer in Law, University of Limerick
  21. Christine Ryan, SJD Student, Duke Law
  22. Kieran McNulty, Postgraduate Student, London School of Economics
  23. Nóra Ní Loinsigh, Barrister
  24. Shubhangi Kharmakar, Ex-Treasurer, Association of Medical Students in Ireland
  25. Michael Fealy QC, Barrister
  26. Gemma Hayes, Legal Secretary
  27. Anne-Marie Kelly, Solicitor
  28. Marguerite Bolger SC
  29. Elizabeth Ferries, Information Rights Programme Manager, International Network of Civil Liberties Organizations, Irish Council for Civil Liberties
  30. Félim Ó Maolmhána, Trainee Solicitor
  31. Darragh Mackin, Partner,  KRW Law, LLP
  32. Evin Mooney, Student, Edinburgh University
  33. Laura Foley, Trainee, European Parliament
  34. Alan D.P. Brady, Barrister and Adjunct Lecturer, Trinity College Dublin
  35. Sandra Duffy, PhD Candidate, NUI Galway
  36. Bríd Ní Ghráinne, Sheffield University Law School
  37. Colin Smith, Barrister
  38. Maeve O’Rourke, Barrister
  39. Judy Walsh Lecturer, University College Dublin
  40. Denise Roche, Legal and Policy Officer, National Women’s Council of Ireland
  41. Daisy Hickey, FE1 Candidate
  42. Lewis Mooney, Barrister
  43. Alana Farrell, PhD Candidate, University of Birmingham
  44. Emma Hutchinson, Barrister
  45. Marie Flynn, Barrister
  46. Shauna Bruder, Legal Counsel
  47. Sinéad Gleeson, Trainee Solicitor
  48. Béibhinn O’Connor, Law student
  49. Eileen Lynch, Trainee Solicitor
  50. Tara Roche, Solicitor
  51. Sinéad Ring, Senior Lecturer, Kent Law School
  52. Eilionóir Flynn, Director and Senior Lecturer, Centre for Disability Law & Policy, NUI Galway
  53. Seáneen Sullivan, LLB
  54. Claire Bruton, Barrister
  55. Claire O’Connell, BCL, LLM,  Legal Researcher, Law Reform Commission (personal capacity)
  56. Ciara Dowd, Legal Researcher, Law Reform Commission (personal capacity)
  57. Jack Nea BL, Legal Researcher, Law Reform Commission (personal capacity)
  58. Hanna Byrne BCL MSc LIBSD,  Law Reform Commission (personal capacity)
  59. Niall Fahy, Barrister
  60. Gráinne Duggan, Barrister
  61. Alison Hough, Law Lecturer

If you are a lawyer based in Ireland, or otherwise expert in Irish law, you are welcome to add your name to the letter. Please use this form to sign, and we will update the signatures list periodically. This letter was published in the Irish Times on 9 April 2018.

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