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Australian philosopher, literary critic, legal scholar, and professional writer. Based in Newcastle, NSW. My latest books are THE TYRANNY OF OPINION: CONFORMITY AND THE FUTURE OF LIBERALISM (2019); AT THE DAWN OF A GREAT TRANSITION: THE QUESTION OF RADICAL ENHANCEMENT (2021); and HOW WE BECAME POST-LIBERAL: THE RISE AND FALL OF TOLERATION (2024).

Monday, December 20, 2010


Yesterday's post looked at the factual circumstances of the three women - applicants A, B, and C - in this case. Let's follow up today with a look at the legal situation that confronted them in Ireland.

First, the Irish Constitution contains this bizarre provision, which has taken the form it has from constitutional amendments.

Article 40.3

1 The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.

2 The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.

3 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.

This subsection shall not limit freedom to travel between the State and another state.

This subsection shall not limit freedom to obtain or make available, in the State, subject to such
conditions as may be laid down by law, information relating to services lawfully available in
another state.

Thus, the constitution itself requires that "the unborn" be treated as having the same "right to life" as actual people: adults and children. Apart from that being ridiculous in itself, it is extraordinary that such a provision have constitutional status. Normally we'd hope that a constitution would define and restrict government power to protect us from overreaching laws, but here it actually requires that the government enact laws that give protection to "the unborn" and thus restrict the liberty of actual women with actual feelings, fears, problems, and life plans. It does the opposite of protecting women from state interference in such a personal matter.

I submit that this is not the constitution of a liberal society; it is the constitution of a country that is deeply influenced in legal matters by specifically religious morality, and to that extent shows theocratic tendencies.

Notice, however, the compromise, by which I mean the provisos in sub-section 3. Constitutional amendments have got around the problem to some extent by ensuring that the constitution does not act to restrict the ability of Irish citizens to travel to countries where abortion is legal. Nor does it limit the freedom of women to obtain information about legal abortions in other countries - though it does allow the state to enact legislation that restricts it, by imposing conditions on what can be said.

What of the legislation itself? There is an old Act of Parliament, dating from the nineteenth century, which remains in force under Ireland's constitutional arrangements. This contains sweeping anti-abortion provisions, most notably the following:

Offences Against the Person Act 1861, section 58

Every woman, being with child, who, with intent to procure her own miscarriage, shall unlawfully administer to herself any poison or other noxious thing or shall unlawfully use any instrument or other means whatsoever with the like intent, and whosoever, with intent to procure the miscarriage of any woman, whether she be or not be with child, shall unlawfully administer to her or cause to be taken by her any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, shall be guilty of a felony, and being convicted thereof shall be liable to be kept in penal servitude for life.

Thus, if you have an abortion in Ireland you have committed a crime that attracts a life sentence (presumably this would be treated as a maximum sentence rather than a mandatory sentence). Again, I submit that this is not the law of a liberal society. Notice that even very early abortions are treated as if they are among the most serious criminal acts in the statute books.

However, note also the important word "unlawfully". In some other jurisdictions where the law uses similar language, this word has been interpreted by the courts so as provide a powerful let-out. As the word must be given some meaning, so the argument goes, it can be held that an "unlawful" abortion is one that has no medical purpose behind it. Once you go down that path, you can render such a law almost nugatory, since almost any abortion can have some purpose relating to the mother's physical or especially mental health. That, however, is not how the courts have construed the legislation in Ireland, and they probably can't be blamed for this given the social climate, the original purpose of the Act, and the wording of the Irish constitution.

Irish case law holds that an abortion is "unlawful" unless if "it is established as a matter of probability 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". I don't like this outcome, but I think it's an honest, legally defensible interpretation of the legislative intention, given Irish (social, historical, and constitutional) circumstances.

Accordingly, applicant C (discussed yesterday) would have had a good defence against an abortion charge if she'd had an abortion in Ireland, but applicants A and B would have been stuck.

One other oddity is that the defence can be relied on if the mother is suicidal. That is especially important to doctors and others who provide abortions (who are covered by a separate section of the Act with closely analogous wording). If your patient makes suicide threats - "If I have to have the baby I'll kill myself!" - you probably have a defence if you carry out an abortion. Presumably the woman also has a defence, at least if she can prove on the balance of probabilities that the threats were sincere (I'm no expert on Irish law, but that's how I think it should operate on general legal principles).

But lawfulness is not established if an abortion is required for some medical reason where the mother's life is not a stake. Nothing less than that will provide a defence in Ireland.

Finally, I should mention that Ireland has actually enacted legislation to control what can be said to pregnant women about the possibility of getting an abortion overseas. The Regulation of Information (Services outside the State for Termination of Pregnancies) Act 1995 provides a code of what you can and can't say to a pregnant woman if, for example, you're her counsellor or a doctor. The main thing is that you can provide factual information, but you can't in any way advocate or promote an abortion or provide any assistance in arranging an abortion. As far as I can see, that is the case even if your patient or client would gain a medical benefit from getting an abortion.

From one viewpoint, it's rather shocking to see this theocratic legal scheme operating in what is supposed to be a Western liberal democracy, but there it is. From another viewpoint, it's probably not surprising at all, given the social and political authority wielded in Ireland by the Roman Catholic Church.

This, then, is what applicants A, B, and C were confronted with when they chose to have abortions in England, which is the common practice for women in Ireland who want abortions.

More to come.


Will Novak said...

Another perspective on this issue; http://familylifenz.wordpress.com/2010/12/18/european-court-ruling-on-irish-abortion-law-is-activism-on-several-fronts/

What do you think Russell?

Unknown said...

This is a really fascinating overview for a law student. Thank you.