Roe v Wade and Ireland’s Eight Amendment: Two Stories about the Limits of Constitutional Rights

Anthony Kennelly

Most countries have written constitutions, which usually provide human rights guarantees.  In many such countries, issues like abortion generate deep disagreement about rights, and are frequently ‘constitutionalised’, i.e they become issues of constitutional law. (For a discussion of how this has played out in Ireland, see Fiona de Londras, Constitutionalizing Fetal Rights: A Salutary Tale from Ireland.)

Activists and politicians often try to constitutionalise issues on the assumption that it will place the rights in question beyond politics.  This is a fallacy, especially where rights are subject to deep and sustained disagreement.  The abortion saga in the US and Ireland is a good example of this fallacy.

What does Roe v Wade have to do with this?

In the US, a constitutional right to choice has existed since the 1973 Supreme Court decision of Roe v Wade.  By extending a constitutional right to privacy to choice surrounding abortion, the decision prevents bans on abortion prior to foetal viability.  Challenges to Roe v Wade have, though, maintained traction in a way that few other issues have.

How has Roe v Wade been challenged?

For decades, numerous state governments have attempted to undermine or overturn Roe v Wade by passing laws restricting access to abortion, instead of banning it outright.  Court challenges to such laws have occasionally raised the prospect of Roe v Wade being modified, or even overturned.

Central to this story is the 1992 decision of Planned Parenthood v Casey, which modified the decision in Roe v Wade by holding that states may place restrictions on access to abortions (prior to foetal viability), but may not place an ‘undue burden’ on patients seeking them.

As the Supreme Court’s composition has changed, the Planned Parenthood v Casey ruling has become a vehicle for attempts to undermine Roe v WadeThe tactic in these attempts has been for a state to pass measures restricting access to abortion, with the hope that subsequent constitutional challenges result in the measures being deemed to not place an undue burden on patients seeking abortions.

Recent Attempts

Protesters outside the US Supreme Court in 2016, during the controversy over Whole Woman's Health v Hellerstedt.

Protesters outside the US Supreme Court in 2016, during the controversy over Whole Woman’s Health v Hellerstedt.

The most important recent attempt occurred in 2016, in the case of Whole Woman’s Health v Hellerstedt.  This case concerned Texan laws which placed onerous restrictions on the operation of abortion clinics, in the name of protecting women’s health.  Seen as making the provision of abortion services largely unfeasible, it was one of the most far-reaching restrictions placed on US abortion providers.

The Supreme Court held that HB2 placed an ‘undue burden’ on patients seeking abortions.  Had the Supreme Court found that HB2 did not create an undue burden, Roe v Wade would have become mainly theoretical in effect, as state legislatures seeking to prohibit abortion could do so by less explicit means than formally banning it.  

How is Roe v Wade in jeopardy now?

Attempts to undermine or overturn Roe v Wade have escalated during the Trump administration.  This is due to the emerging conservative majority on the Supreme Court, following Trump’s appointment of Justice Neil Gorsuch and Justice Brett Kavanaugh.  Recent attempts include:

Justices Neil Gorsuch (left) and Brett Kavanaugh (right).

Justices Neil Gorsuch (left) and Brett Kavanaugh (right).

Legal challenges have been brought against all these measures, and the Supreme Court is due to hear a challenge to the Louisiana measures early this year.  With Gorsuch and Kavanaugh on the court, there is therefore a real possibility of the Supreme Court overturning Roe v Wade in its current term, or at least strip it of practical effect.

How does this fit into the bigger picture?

Supporters of Roe v Wade can undoubtedly celebrate its success so far at striking down and preventing outright bans on abortion.  The perpetual vulnerability of Roe’s precedent does, however, highlight the failure of constitutional law to completely insulate a putative right from sustained political disagreement.

The same phenomenon, albeit in reverse, can be seen in Ireland’s experience with abortion and constitutional law.

What was Ireland’s Eighth Amendment and why is it relevant?

The Eighth Amendment to Ireland’s Constitution conferred a right to life on what it called the ‘unborn’. Passed with overwhelming support in 1983, its purpose was to use constitutional rights to prevent the legalisation of abortion, whether by legislation or an equivalent Irish case to Roe v Wade.

Public opinion on this issue changed radically over the following 35 years.  In May 2018, a referendum on repeal of the Eighth Amendment passed with 66.4% support.

Key to this development was the growth of social liberalism in Ireland.  So too were the practical consequences of the Eighth Amendment, and its requirement that abortion could only be legislated for as a means of preventing maternal deaths.  This created a complex legal framework for doctors, and numerous tragedies were attributed to it by some, including the death of Savita Halappanavar.

Controversy arising from cases like this, and the lack of exceptions for rape and fatal foetal abnormalities, were catalysts for the movement to repeal the Eighth Amendment.

How does this compare with Roe v Wade?

Mirroring the American experience with Roe v Wade, the Eighth Amendment was successful in preventing legalisation of abortion in Ireland for 35 years, but was unsuccessful in putting the right it contained beyond political contestation.

What is the wider relevance of these examples?

With abortion, the US and Ireland have both seen constitutional law fail to place the right in question beyond politics, because in each case the rights were constitutionalised without a broader societal shift in consciousness and power relations.  This point is also highlighted by both countries’ experiences with more settled rights issues.

In the US, the right to sexual privacy which Roe expanded was first grounded in the right to contraception (Griswold v Connecticut), which came alongside the sexual revolution of the 1960s. In Ireland, the right to privacy in family planning and contraception was recognised in McGee v Attorney General, but only gradually legislated for as public attitudes changed.  Without growing support, McGee could have had a similarly precarious legacy to Roe v Wade.

Another example of this phenomenon in both countries is the striking down of laws criminalising gay sex.  This occurred in the US in Lawrence v Texas (2003).  The same laws were repealed in Ireland in 1993 following ECHR litigation, but more importantly, shifting social attitudes.  In each country, it is impossible to imagine reversal of these changes, due to a sea change in attitudes to the LGBTI+ community, rather than because of constitutional law.

What’s the Bottom Line?

Irish and American experiences show that while constitutionalising rights has tangible effects by affording them greater legal protection, rights only become truly guaranteed when attitudes and power shifts make them politically irreversible.

This is worth bearing in mind by activists, who should better recognise the limits of constitutional law, and the importance of the political context that constitutional law operates in.                                                                                                                                                                                                                                               * Anthony Kennelly is a solicitor based in Dublin.  Anthony holds law degrees from the University of Limerick and the London School of Economics, including a Master of Laws (LLM) in Public Law.  His LLM dissertation outlined reasons for caution in including certain rights guarantees in constitutions.

Posted in Uncategorized | Leave a comment

Why Judicial Appointments Reform is Necessary

On Wednesday night an end was put to the longest filibuster in the history of the State when the guillotine was imposed on the Judicial Appointments Commission Bill. The Bill has now passed all stages of the Seanad and will return to the Dáil for consideration of the numerous amendments made. However, given the current climate, an election is likely to happen nearer to Christmas than summer and if this occurs it will probably be fatal to the Bill. The architects of the filibuster are already celebrating but if all of the work behind this Bill has been for nothing then the Government will not be the only loser. The reality is that the judicial appointments process in Ireland is not fit for purpose and failure to reform it does a disservice to the judiciary, the legal profession, the general public, and the State.

What is wrong with the current system?

In Ireland, judges are appointed by the President, ‘on the advice of the Government’, which means that they are chosen by the Government. In 1994, as a result of the fallout from the attempted appointment of the then Attorney General to the post of President of the High Court, it was decided that the ‘tap on the shoulder’ system should be reformed. This resulted in the establishment of the Judicial Appointments Advisory Board (JAAB) in 1995. The move looked like genuine reform but Professor David Gwynn Morgan has described it as “a good example of pulling the wool over the public’s eyes”. This is because it does little to change the process.justice

First, the board has no role if the post in question is the presidency of any court or if a vacancy is being filled by the promotion of a lower judge by the Government. In relation to all other appointments, the Board compiles a list of at least seven names and submits this to the Government. However, in recent years due to fears of unconstitutionality, the Board began a practice of sending all suitable names forward to the Government. This means for a District Court appointment the Government could be faced with up to 100 names. It does not interview candidates or rank them, despite having the power to do so. Thus, essentially it is a filtering mechanism which doesn’t even filter has not made any real change to the appointments system.

Why is this problematic?

Some would argue that there is no need for reform since Irish judges have never shown any deference to the Government which has appointed them and they have an excellent record in terms of independence. This is very true but there are problems with the current system. The Government has complete discretion and nobody can deny that throughout the years Governments have appointed supporters of their own political parties. Some Governments have been more neutral than others but that is purely their prerogative. In recent years Governments have made a number of outstanding appointments, and in particular these include many excellent women. However, for many years very few women were appointed and currently there is no requirement to promote diversity in terms of gender, ethnicity, background, geography, or anything else – it is purely at the discretion of Government.

While the political element has sometimes been exaggerated, judges themselves have admitted using political influence to ensure their appointment. Retired Judge Michael Patwell told Charlie Bird a few years ago that such an approach was “common”. In an interview in 2012, Mr Justice Peter Kelly, who was President of the Association of Judges in Ireland stated that the JAAB does not work: “We all know … that people who would be excellent judicial appointments are passed over in favour of people who are not so well qualified.”

In 1995, Brian Cowen urged the Dáil to delete the sections of the Court and Court Officers Bill 1995, which subsequently established the Judicial Appointments Advisory Board. Cowen had been part of a ministerial sub-committee which designed the scheme so that the government could ‘save face’ following the controversial Whelehan Affair the year before. Cowen claimed the JAAB scheme had nothing to do with meaningful judicial reform but rather was a short term political solution to a problem which had since gone away and he asked his colleagues not to include the proposed scheme noting that as a practitioner in the courts, he anticipated ‘many problems in the event that those sections are agreed’.Attorney General Maire Whelan

This so-called ‘charade’ has now been in operation for nearly 25 years and controversy has followed it since then. What better illustration of the broken process than the appointment of the Attorney General Máire Whelan to the Court of Appeal in 2017. The Government decided to make the nomination despite the fact that Ms Whelan had not actually made an application for the post. Despite the fact that a number of High Court judges had applied, Ms Whelan was the only candidate brought to Cabinet. The move was criticised by Opposition parties and by the media but memories are short and this has been all but forgotten.

Why is there opposition to the current Bill?

The current Bill, which is generally known as Minister Ross’ Bill, has been subject to vehement opposition for a number of reasons. The main points of controversy have been the idea of a lay chair and a lay majority. Despite claims of ridiculousness from some politicians who asked why “Joe Soaps” should be involved in choosing judges, these devices are commonly used in other jurisdictions and are generally regarded as best practice. [See further here] For example, in Ontario, the Canadian jurisdiction which is often pointed to as a suitable model, out of the 13 members of its Commission, there are 7 lay members including the chair, 3 judges and 3 lawyers; a lay majority and a lay chair. In England and Wales there are 15 Commissioners: 6 lay including the chair, 6 judicial, 2 lawyers and 1 non-legally qualified judicial member. Scotland provides for equal lay and legal representation with 6 of the 12 members being lay persons, including the chair. These are also common trends elsewhere. It has been repeated by Opposition politicians and media that the European Commission criticised this aspect of the Bill. However, the concern expressed in the Commission report was in relation to the originally low level of judges involved in the body rather than to the principle of lay majority or lay chair. This aspect was also criticised by the Association of Judges of Ireland and amendments were made to increase the number of judges on the body – a crucial move as it is essential that judges be adequately represented.

supreme courtAnother claim made in the Seanad is that it would be improper to interview sitting judges as to their suitability as judges. However, again this is very common in other jurisdictions. In England and Wales for example, judges will often undergo moot trials and mock scenarios as well as interviews in order to determine their suitability. What is wrong with that? It is something deemed necessary in every other profession, why should judges be any different? Interviews can be a very useful tool and it is crucial that we appoint candidates who will be good judges.

A cynic might suspect that some of the opposition to the Bill simply comes down to the personalities involved.

Of course the problem now is that so many amendments have been made to the Bill, some useful and some unclear, that the Attorney General’s description of a dog’s dinner is apt.

The future of the Bill?

The only hope for the future of this important reform is if the Opposition gets on board to tidy up, improve, and pass the Bill as soon as possible. But this appears very unlikely.  Shortly before the introduction of the current Bill, Fianna Fáil introduced a very similar proposal which received an unusually warm reception in the Dáil. However, this was not supported by Government since the Department of Justice was already preparing its own draft Bill. Given that the two main Parties acknowledge that reform in this area is needed and agree on most of the substantial issues, it is disappointing and hard to believe that this genuinely necessary reform will quite possibly come to nothing.


Dr Laura Cahillane is a lecturer in Constitutional law in the University of Limerick

Posted in Attorney General, Courts, Judiciary | Leave a comment

Conference Report: “Sovereignty, Populism and Constitutional Politics”

On August 30-31, Constitution Project @ UCC, in association with the British and Irish Chapter of the International Society of Public Law, played host to a conference on the theme of “Sovereignty, Populism and Constitutional Politics”. 70 delegates saw 33 speakers drawn from academia, legal practice and government spread across 10 panels. The keynote address was delivered by Professor Gráinne de Burca of New York University, who considered the challenges posed to the EU by the rise of populism, and lessons that Europe could learn from Ireland’s experiments with Citizens’ Assemblies.

Grainne de Burca 5

Picture: Professor Gráinne de Burca delivers the keynote address, sponsored by Matheson.

The speakers were an interesting mix of established and familiar faces as well as emerging scholars. Several were making their first visit to Ireland, or their first presentation at an academic conference (which made the quality of the presentations all the more notable). It would not be possible to cover every paper in a brief report, but a few examples will be mentioned.

Panel on Sovereignty David Kenny Raphael Girard Eoin Daly Laura CahillaneIn keeping with the theme of the conference, there was a particular focus on sovereignty, with two panels dedicated to this topic. Clara Hurley proposed that the concept of sovereignty could be helpfully refined using insights from relational autonomy, while Raphael Girard discussed the relationship between populism, constituent power and popular sovereignty. Using insights from the particularities of the Irish context, Maria Cahill distinguished between ‘sovereignty as substantive capacity’ and ‘sovereignty as declaratory capacity’, while Eoin Daly emphasised unaccountability and unreviewability as the hallmark of sovereignty, Laura Cahillane highlighted the relationship between popular sovereignty and trust in the constitution and Michael Kearney noted some indeterminacies around self-determination.

Ireland’s extensive experience of amending the Constitution by way of referendum received detailed coverage. Gavin Barrett gave a general overview of this experience, while other papers focused in on specific aspects, including referendum petitions (Jennifer Kavanagh) and Citizens’ Assemblies (Oran Doyle and Rachael Walsh). David Kenny considered the idea of “referendum culture”, while Hillary Hogan looked in detail at a specific referendum, namely the 2004 citizenship referendum.

Donal CoffeyComparative perspectives were also to the fore. Claudio Martinelli compared the Irish and Italian experiences of expressing popular sovereignty through the referendum process. Donal Coffey shed light on the unexpected and striking degree of influence that the Irish Constitution had on the drafting of the 1947 Burmese Constitution; while Colm O’Cinneide posed the question of what Ireland has to offer to global constitutional debates, concluding that Irish constitutional law finds itself in a moment of comparative constitutional fashionability, which brings both opportunities and responsibilities for Irish constitutional scholars.

Current trends and debates in Irish constitutional case law were considered in panels on judicial power, governance and a dedicated panel on the recent Supreme Court judgment in the Angela Kerins case. Finally, the academic publishing landscape in the broad field of public law was considered in a publishing workshop that explored publishing in the US (Gráinne de Burca), UK (Aileen Kavanagh), Europe (Gavin Barrett) and in traditional and new media (Conor O’Mahony).

The conference combined serious academic debate with a light-hearted and sociable atmosphere (including a sold-out dinner, and pizza for lunch!) We are grateful to all of the speakers and delegates for their participation; to Matheson Solicitors for sponsoring the keynote address; to Deirdre Kelleher for invaluable organisational support; and to Oran Doyle for his assistance as co-chair of the British and Irish Chapter of ICON-S.

Posted in Events | Leave a comment

Conference Programme and Registration: “Sovereignty, Populism and Constitutional Politics”, 30-31 August

School of Law, UCC and Constitution Project @ UCC

in association with

The British and Irish Chapter of the International Society of Public Law (ICON-S)

Friday 30th and Saturday 31st August 2019, 1 Lapp’s Quay Executive Education Building, Cork

Keynote Speaker: Professor Gráinne de Burca, New York University

Registration: Admission €40 (students/unwaged €20); optional conference dinner for an additional €35. Please click here:

**Note: up to 9 hours of certified Continuous Professional Development will be available.

Conference Theme

The Irish Constitution has always had a unique reverence for popular sovereignty, as evidenced by the fact that it requires that every single proposed amendment of the Constitution be approved by the people in popular referendum. This feature of Irish constitutionalism has many corollaries:

  • it gives the Irish people a practical ownership over their constitution;
  • it puts a great deal of pressure on the referendum process;
  • it emphasises popular democracy, perhaps occasionally at the expense of a sharper focus on representative democracy and the role of parliament;
  • it adds an extra dimension to citizenship;
  • it impacts on Ireland’s engagement in international relations, due to the necessity to authorise the ratification of certain treaties by way of referendum; and
  • it calls upon the courts to supervise the referendum process and give effect to the intention of the electorate.

The amendment process has been invoked relatively frequently. 41 proposed amendments have been put to referendum since 1937, of which 29 were approved. This frequency has noticeably increased, with 13 referendums in the last 10 years (compared with just 8 in the first 40 years of the Constitution’s existence).  All of this means that popular sovereignty is built in to the Irish constitutional experience in a way that is very rare from a comparative perspective. This popular involvement in constitutional change is comparatively unusual and may have helped to protect the Irish constitutional order from populist critiques of elite politics. Its unique advantages and pitfalls will be considered in this conference.

The full programme can be viewed in PDF here, or below:

Screenshot 2019-06-25 13.08.29

Screenshot 2019-06-25 13.12.55

Posted in Events, Referendum | Leave a comment

The Danger of Frequent Constitutional Amendment

Dr Maria Cahill

The Irish Constitution has been amended 31 times in 82 years, and 8 times in the last 10 years. In total, there have been 43 proposals to amend the Constitution, 12 of which have been put forward in the last 10 years. The proposed referendum on 24th May 2019 already creates history for being the third referendum polling day within 365 days.

This post is not concerned with the substance of any of those amendments or proposals. In fact, it will work on the assumption that all of those proposals – even those that were rejected by a majority of voters – would have improved the quality of our constitutional bargain.

The argument here is that even if the proposals are solid and would advance the common good, there are dangers as well as advantages inherent in frequent constitutional amendment.

The advantages of having a constitutional amendment procedure which can be activated relatively easily are well-canvassed: they allow that constitutional provisions that are no longer fit-for-purpose can be adapted, they prevent the constitution from becoming delegitimised, they allow constitutional change to happen lawfully through established and orderly processes rather than requiring revolution and replacement, and, in our unusual system where popular referenda are held every time we seek to amend the constitution, the amendment procedure allows the people to feel a sense of ownership over the enterprise of constitutional self-government.

Those advantages accrue even if the particular proposal is a particularly bad idea.

But just as there are advantages to proposing constitutional amendments, even if the proposals aren’t good in themselves, so too there are dangers to proposing constitutional amendments even if the proposals aren’t bad in themselves. Those dangers are not so frequently considered.

ConstitutionsThe biggest danger is simply that we forget what the purpose of a constitution is. Identifying the purpose(s) of constitutions admittedly is a difficult job even for constitutional scholars, but when we do engage in such discussions, those conversations almost always include a reference to a particular part of Homer’s Odyssey. On his journey home after long adventures, Captain Odysseus, aka Ulysses, knows that his course takes the ship past a famous island. The beautiful goddess Circe has warned Ulysses that many ships have been lured to this particular island by the beguiling sounds of the sirens coming from the island and that all the sailors who follow the music to the island meet their deaths. To help Ulysses avoid this disastrous fate, Circe advises him to put wax in the ears of the sailors so that they do not hear the music and, if Odysseus himself wants to listen, to have them bind his hands and feet with ropes so that he cannot direct them to the island. Odysseus first makes the sailors to swear an oath that they will not unbind him no matter how much, under the influence of the music, he implores. Then he deafens their ears with the wax and they tie him to the mast. And they all sail safely past the island.

The moral traditionally taken from the story is that, in order to be truly free, we must be prepared to sacrifice instant gratification for the fulfilment of a bigger purpose. It is also a blunt reminder that the desire for instant gratification can be so overwhelming that mutual accountability mechanisms are a very smart way to proceed.

For constitutional theorists (for example, Jon Elster, Stephen Holmes and Philip Pettit), this story is also a metaphor for constitutionalism: Odysseus cannot make the choice that he wants to make in the instant that he hears the music because he had previously consciously chosen not to retain that irresponsible choice as one of his available options. In the same way, so the analogy goes, a political community that sets the course of the nation’s destiny by adopting a written constitution which establishes certain specific institutions endowed with certain specific powers and governed by certain specific rules necessarily constrains its capacity to gratify immediate desires, knowingly and willingly limiting its freedom-in-the-moment for a deeper freedom-through-time.

Constitutions, they say, aren’t supposed to be a mirror image of everything we would like to do in any given moment, or even everything we think we should be able to do in any given moment. They are supposed to be the rules that sometimes require us to sacrifice now in order to retain the possibility of achieving a higher goal. They are supposed to be the rules that we sometimes rail against, that we sometimes long to be released from, but that deep down we know speak to us of what’s best in us as well as what’s best for us. (That’s not to say that constitutional rules always do fulfil this purpose, but that that’s the idea of a constitution.)

Frequent constitutional amendment gives the contrary impression that if there is anything in the constitution that we don’t like right now, we just change it. In this view, a constitution is less a foundational agreement that holds the hopes and dreams of a nation and more a temporary contract which can be revised and re-negotiated every few months or years, a bit like an EU treaty that concretises certain rules but doesn’t grab anyone’s heart.

If anything and everything about the basic bargain of a nation can be changed on a whim – and in the Irish constitutional order, unusually, there are no restrictions whatsoever on what can be amended – there is at least the risk that this creates a deep instability in the legal system, because this attitude to constitutionalism defeats the purpose of having a constitution in the first place. It therefore undermines not only the particular constitution being amended, but the legitimacy of this and any future constitution as a foundational agreement, and eventually even the rule of law itself in that political community. Allied to the instability created in the legal system, it can also create insecurity in the political community: frequent disagreements about the content of the basic commitment unsettle any relationship. This danger, however, can be mitigated if the changes are not terribly significant and/or there is near consensus in favour of or against the proposal.

A lot about constitutions is rhetorical: we mythologise ‘constitutional moments’, ‘founding fathers’ and the apparently-infallible ‘People’; we selectively remember the circumstances in which the constitution was forged; and we celebrate anniversaries with pomp and circumstance. All this rhetoric can seem quite empty, especially to someone who has expert knowledge of the historical events, but it is nonetheless important because it constitutes the founding myth of the nation, and acts as a focal point for the generation and deepening of political community. Retelling the founding myth has some value therefore even when we haven’t got all the facts straight. For the same reason, maintaining the Constitution as a foundational agreement is important even if some of the provisions are imperfect, and changing the rules too often, even if all the changes are beneficial, carries inherent risks that we cannot simply ignore.

With all of this in mind, justifications of amendment proposals should be unsatisfactory to us if they purport to offer only (minor) improvements to the constitutional settlement without counting the wider constitutional cost. And questions can legitimately be raised of any proposal which does not purport to substantially improve the constitutional settlement and/or which is unreflective about the risk that too-frequent amendment proposals compromise the project of constitutionalism and the integrity of the political community.

Dr Maria Cahill lectures in constitutional law at the School of Law at University College Cork.

Posted in Constitutional History, Referendum | Leave a comment