If the referendum passes, might a future constitutional challenge require the government to lift the time limits for abortion access?


Some people are concerned that, although the government has proposed a clear 12-week time limit for access to abortion on request, (more details here) a future constitutional challenge could require that time limit to be lifted, so that abortion on request would be permitted up to viability.

However, at the present time, it is unlikely that a future Supreme Court decision would require substantial change to that time limit.

Read More »


Letter to the Irish Times April 9 2018


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expect to see an Irish equivalent of the United States Supreme Court’s judgment in Roe v. Wade if the 8th Amendment is repealed.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.

Questions and Answers

The Law Now

What is the 8th Amendment and why does it matter?

What is the law on abortion now?

Is there a human right to access abortion?

How does the 8th Amendment affect people who plan to continue their pregnancies?

The Referendum

Why is a referendum on the 8th Amendment required?

Can we reform abortion law without a referendum?

What will people be voting on in the referendum?

The Law after Repeal

Will a vote for repeal create a legal vacuum?

Will the Oireachtas be required to legislate for abortion post-repeal?

What will the new abortion legislation say?

What does abortion ‘on request’ up to 12 weeks mean?

When will abortion be legal after 12 weeks?

Would abortion be available in emergency situations?

Will a yes vote lead to abortion ‘up to birth’?

Will ‘the unborn’ be protected after repeal?

What does the proposed new law say about disability?

Will abortion be available on mental health grounds?

Will the proposed law be more liberal than the British Abortion Act 1967?

Will abortion travel still happen after repeal?

Will healthcare professionals be forced to provide abortion against their consciences?

Will abortion still be a crime after repeal?

Will abortion pills be available after repeal?

Might a future constitutional challenge require the government to remove the time limit for access to abortion on request?

Will the European Court of Human Rights force Ireland to introduce abortion ‘on demand’?

What are the implications of repeal for crimes against pregnant women?

What are the implications of repeal for medical negligence law?

Will the law on abortion information be changed after repeal?

The Law if the 8th Amendment is not Repealed

What will happen if the 8th Amendment is not repealed?

What will the new law be?

The Government’s proposal is that abortion will be available

  • On request up to 12 weeks, subject to a 3-day waiting period;
  • Up to viability of the foetus: where two doctors certify that there is a risk to the life of the pregnant woman;
  • Up to viability of the foetus: where two doctors certify that there is a risk of serious harm to the health of the pregnant woman;
  • Where two doctors certify that there has been a diagnosis of ‘fatal foetal anomaly’;
  • When needed in an emergency.

It will never be a crime for a woman to have an abortion.

It will be a crime for someone to carry out an abortion except in line with the new law. Read More »

What does the proposed new law say about disability?

The government proposes that abortion will be available on request up to 12 weeks (see explanation here). After 12 weeks, a woman will only be able to access an abortion if two doctors  agree that her life is at risk, if her health is at risk of serious harm or the foetus has been diagnosed with a fatal condition. If the diagnosis is not of a fatal condition, abortion will be illegal (see explanation here).

It is possible to screen for some disabilities within the 12 week period during which abortion will be made available on request. However, the IOG has said that, at the moment, a confirmed diagnosis will rarely be available before the deadline for termination under the proposed law. The Master of the Rotunda Hospital has said that, in his experience, about half of parents receiving such a diagnosis will go on to travel to terminate the pregnancy. (For the Master of the Rotunda Hospital’s testimony to the Joint Oireachtas Committee see here).

A woman who has received such a diagnosis will only be able to terminate a pregnancy under the proposed Irish law after 12 weeks if she can demonstrate a risk to her life, or a risk of serious harm to her physical or mental health. The mental health ground proposed for Ireland, and the British law on abortion for mental health reasons in are very different (see further here) and so it is clear that a woman would not be able to access an abortion in Ireland after 12 weeks only because she was distressed by a particular foetal diagnosis.

Another key difference between the proposed Irish law, and the British Abortion Act 1967, is that the British law permits terminations later in pregnancy where there is a diagnosis of serious disability (read more about that Act here). The proposed Irish law does not.

It is also important to remember that, under the proposed Irish law, a foetus which can be born alive will be delivered alive by early induction or Caesarean section, and cared for like any other premature baby. This is because in cases of risk to life or serious risk to health, abortion will only be lawful until viability (see explanation here).

A woman who cannot show some other legally valid reason for terminating the pregnancy will still be entitled to travel abroad to seek an abortion, just as she is entitled to do so now (see more here).

The UN Committee on the Rights of Persons with Disabilities discourages states from passing laws which permit termination of a pregnancy only because the foetus has been diagnosed with a disability. However, it accepts that women should still have access to abortion where continuing with the pregnancy would expose them to inhuman or degrading treatment or where they are otherwise unable to continue the pregnancy for health or socio-economic reasons.

Further Reading:

NUI Galway Centre for Disability Law and Policy, Submission to the Citizens Assembly.

Letter to the Irish Times January 22 “The Eighth Amendment and Disability”

Enright and de Londras, Repealing the 8th, Postscript p.p. 99-101 and 137-141

Will the European Court of Human Rights force Ireland to introduce abortion ‘on demand’?

To date, the European Court of Human Rights has said that it is up to every individual state to decide whether and, if so, when to allow for lawful abortion.

In states where abortion is legal on limited grounds, the state must make sure that women who are legally entitled to access an abortion are able to do so in practice. For example, the state must take steps to ensure that women do not experience unnecessary delays in accessing treatment.

It is extremely unlikely that this will change in the foreseeable future, especially as international human rights law does not recognise a right to abortion ‘on demand’. Instead, it establishes a right to access abortion in cases of rape, incest, and ‘fatal foetal anomaly’.Read More »