2014 saw palpable growth in support for the repeal of the Eighth Amendment to the Irish Constitution, which guarantees the right to life of the unborn. While there has long been a call to this effect from the pro-choice lobby, the thing that changed in 2014 was that it became increasingly clear that this debate is not just about abortion. While the controversial Miss Y case was focused on access to abortion, the year ended with the tragic case of PP v HSE, which concerned the termination of life support for a brain dead pregnant woman and had nothing to do with abortion. The result was an intensification of the calls to “Repeal the Eighth”, with the Minister for Health, Leo Varadkar, and the Tánaiste, Joan Burton, both expressing the view that this should happen (albeit not before the next election). I expressed the view in the Irish Independent on December 27 that even to people not in favour of liberal abortion laws, the Eighth Amendment should be seen as an overbroad and unworkable law that should be repealed; the debate should shift to what (if anything) it should be replaced with.
“Repeal the Eighth” is a catchy slogan that seems, on its face, appealingly straightforward. However, leaving aside the political difficulties, the process may not be as legally straightforward as highlighting the relevant text and pressing the delete button. For starters, what about the Thirteenth and Fourteenth Amendments (travel and information)? If the Eighth Amendment were simply deleted, then these should follow, as they refer back to it and would make no sense in its absence. But what if the Eighth Amendment were to be modified rather than deleted entirely? Could the travel and information clauses remain, or would they need to be modified or deleted?
The intention behind repealing the Eighth Amendment entirely would be to take the issue of the unborn out of the constitutional realm altogether, leaving it to the discretion of the elected branches of government to legislate for, and eliminating the all-too-familiar interventions of the courts. But would this suffice? If the Eighth Amendment were deleted entirely, would legislation providing for broader access to abortion be immune from constitutional challenge based on the right to life of the unborn?
There is an understandable reluctance to go further and to replace the Eighth Amendment with a new provision that stipulates the balance to be struck (in whatever way) between the rights of the mother and those of the unborn. Any such provision would be extremely difficult to draft, fraught with the deepest controversy, and would have the same potential disadvantages that the Eighth Amendment itself had: scope for unintended consequences and inflexibility when they arise.
Having said all of that, there are potential complications arising from leaving things unsaid also. Any Irish judge will interpret the Constitution “light of prevailing ideas and concepts”, to use the oft-cited words of Walsh J from McGee v Attorney General  IR 284. While this means that the values of today’s generation are to prevail over those of their ancestors, it also has the more general implication that constitutional meaning is informed by values and opinions that are deeply rooted and widely shared in Irish society. Our history is one where unborn life has been accorded a highly significant status – protected by the criminal law for centuries and by the Constitution for at least three decades. Even in jurisdictions with liberal abortion regimes and no constitutional or legal recognition of the right to life of the unborn, the courts have nonetheless recognised that the unborn has some sort of legal status.
For example, in St George’s Heathcare NHS Trust v S  3 WLR 936 at 952, the English Court of Appeal stated that “whatever else it may be a 36-week old foetus is not nothing; if viable it is not lifeless and it is certainly human”. Similarly, the US cases of Roe v Wade 410 US 113 (1973) and Planned Parenthood v Casey 505 US 833 (1992), while protecting a right to an abortion, also recognise a State interest in protecting unborn life that grows stronger as the pregnancy progresses. The point of all of this is that the Irish courts, operating in a cultural context more protective of unborn life, would be likely to go further down this road than their English and American counterparts in the absence of clear directions to the contrary – and constitutional silence is not a clear direction to the contrary. In fact, should the courts be so minded, the pre-1983 case law gives them support to go so far as to conclude that the unborn still has a constitutional right to life.
In looking at the case law that pre-dated the Eighth Amendment, the following passage from the judgment of Walsh J in the Supreme Court in G v An Bord Uchtála  IR 32 at 69 is significant:
“Not only has the child born out of lawful wedlock the natural right to have its welfare and health guarded no less well than that of a child born in lawful wedlock, but a fortiori it has the right to life itself and the right to be guarded against all threats directed to its existence whether before or after birth. The child’s natural rights spring primarily from the natural right of every individual to life, to be reared and educated, to liberty, to work, to rest and recreation, to the practice of religion, and to follow his or her conscience. The right to life necessarily implies the right to be born, the right to preserve and defend (and to have preserved and defended) that life, and the right to maintain that life at a proper human standard in matters of food, clothing and habitation. It lies not in the power of the parent who has the primary natural rights and duties in respect of the child to exercise them in such a way as intentionally or by neglect to endanger the health or life of the child or to terminate its existence. The child’s natural right to life and all that flows from that right are independent of any right of the parent as such.” (Emphasis added)
There are two ways to view this passage. One (quite valid) perspective is to point out that its references to the unborn are entirely obiter dictum, since the case at hand did not concern an unborn child; accordingly, it is far from a solid foundation on which to construct a constitutional right to life for the unborn, particularly in the aftermath of a vote of the people to remove the provision that expressly recognises that right.
An alternative perspective is to say that the passage is not an isolated one; several other decisions support the notion that the right to life of the unborn enjoys constitutional protection even in the absence of the Eighth Amendment. Some years prior to G v An Bord Uchtála, in McGee v Attorney General  IR 284 at 312, Walsh J expressly qualified his statements that State regulation of contraception would be unconstitutional by stipulating that “[o]n the other hand, any action on the part of either the husband and wife or of the State to limit family sizes by endangering or destroying human life must necessarily not only be an offence against the common good but also against the guaranteed personal rights of the human life in question.” Similarly, McCarthy J, in his dissenting judgment in Norris v Attorney General  IR 36 at 103 went out of his way to qualify his finding that laws criminalising sodomy were an unconstitutional violation of the right to privacy by stipulating that the prohibition of abortion was quite different:
“For myself I am content to say that the provisions of the preamble [to the Constitution] which I have quoted earlier in this judgment would appear to lean heavily against any view other than that the right to life of the unborn child is a sacred trust to which all the organs of government must lend their support.”
All of these passages were considered by the High Court in Finn v Attorney General  IR 154, which was an attempt to derail the enactment of the Eighth Amendment based on the argument that the right to life of the unborn was already protected under the Constitution and that the Amendment was therefore not a “variation, addition or repeal” within the meaning of Article 46.1. The case was rejected on the basis that the power of judicial review applied only to enacted laws, and Bills (including Bills to amend the Constitution) were beyond its scope. Nonetheless, it is notable that Barrington J concluded (at 160) that “[o]n the basis of the authorities opened to me … I would have no hesitation in holding that the unborn child has a right to life and that it is protected by the Constitution.”
Thus, it is entirely within the bounds of possibility that the repeal of the Eighth Amendment, without any substitution of an alternative provision, would leave the constitutional right to life of the unborn intact. What would have changed is that there would no longer be an express reference to the “equal right to life of the mother”. Because the right would be based on judicial interpretation rather than express text, it would be somewhat more malleable than the Eighth Amendment, but it would be no clearer in its precise scope and boundaries. There would be something of a blank canvas on the question of when that right must give way to other rights. The legislature could seek to fill in that canvas, and the courts would probably be highly deferential to legislative choice in such a sensitive and divisive field. However, the precise scope of this deference cannot be guaranteed, and legislation providing for a more liberal abortion regime would remain susceptible to constitutional challenge. The history of this debate in Ireland suggests that such a challenge would be almost inevitable.
What are the alternatives? Obviously, the answer depends on what the law is trying to achieve. If the issue is to be left to the discretion of the Oireachtas, Article 40.3.3° could be amended so as to read something like “The protection of unborn life shall be regulated by law”, or “The termination of pregnancies shall be regulated in accordance with law”, or “The circumstances in which it shall be permissible to terminate a pregnancy shall be specified by law”. A provision designed to slightly liberalise abortion laws while also acting as a bulwark against a more liberal regime could stipulate that “The intentional destruction of unborn life shall be an offence punishable by law, save in the following circumstances: XYZ”. A provision designed to protect an unencumbered right to choose could stipulate that “No law shall be enacted restricting the right of women to choose to terminate pregnancies prior to the viability of the foetus, as specified by law”.
Clearly, none of the above options is without its drawbacks, with the biggest being the political difficulty involved with choosing which one to put on a ballot paper. It has been proposed that this could be resolved by a Constitutional Convention, which is an interesting proposal that could build on the positive experience of the limited Convention held in 2013. However, there would inevitably be enormous controversy around the composition, terms of reference and conduct of such a body, and it is difficult to see either side of the debate happily accepting its recommendations. Thus, for political reasons, a simple repeal with no replacement is the most likely proposal to make it to a ballot paper. What this brief consideration has aimed to demonstrate is that this may not be the panacea that it is tempting to think it will be.
Dr Conor O’Mahony is a senior lecturer in constitutional law at University College Cork. Twitter: @ConorUCCLaw