Legislating for Article 40.3.3: Blog Carnival Conclusion

Authors: Dr Catherine O’Sullivan, Faculty of Law University College Cork, Jennifer Schweppe, School of Law, University of Limerick and Dr Eimear Spain, School of Law, University of Limerick

We hope that you have enjoyed the various posts in this special blog carnival on “Legislating for Article 40.3.3.”  The authors of these posts, who are all legal academics or practitioners, have come from different perspectives on the abortion issue and have raised very interesting questions on a variety of matters that stem from Article 40.3.3.  The aim of today’s Carnival was to bring these questions and perspectives to a wider audience in the hope of providing context and contributing to the debate on the need for, and scope of, any legislative or regulatory regime introduced to ensure Ireland’s compatibility with the European Convention on Human Rights and Fundamental Freedoms. The impetus for this carnival derives from the  September 2012 Report of the Expert Committee on Abortion on the implications of ABC v. Ireland, the three-day Oireachtas Hearing on the abortion issue in January 2013, and reports in the Irish Times that draft legislation is expected after Easter.

This, the final blog in the carnival, will provide a brief snapshot of the various contributions and will conclude with further details on longer articles that will be based on whole or in part on some of the contributions made to the carnival today.


  1. Legislating for Article 40.3.3: De Londras on The Role and Duty of Parliamentarians

De Londras’s contribution was directed at our TDs and Senators and asked them to consider two criteria when enacting legislation on abortion.  The first is that they act as parliamentarians, not as medics, i.e. they should simply set broad principles in the legislation and trust the ability of doctors to resolve complicated medical questions.  Second, that they act as constitutionalists rather than provocateurs, i.e. they should strive to give effect to the constitutional obligation placed on them by Article 40.3.3 rather than promoting provocative and/or misleading claims.

  1. Legislating for Article 40.3.3: Ryan on Abortion and Motherhood

Ryan sought to place the abortion debate in a broader social context, particularly the economic factors that can contribute to a woman’s decision to obtain an abortion.  Drawing attention to the curtailment of economic supports made available to parents and carers in successive budgets, he noted that the State’s budgetary policies can hinder its pro-life agenda.

  1. Legislating for Article 40.3.3: Mullally on Equal Citizenship

Mullally focused on women’s rights to equal citizenship and how they are impacted by the provision (or not) of legal abortion.  She noted in particular that the distrust exhibited by suggestions that pregnant women might pretend to be suicidal in order to avail of abortion in Ireland brings into question all women’s decision-making capacity and autonomy.

  1. Legislating for Article 40.3.3: Binchy on Dignity and Respect

Binchy sought to place the issue of abortion into the broader context of human rights, referring to the normative proposition that every human being has inherent dignity and equal worth.  He noted that this norm is challenged in the context of abortion, particularly by human rights advocates who recognise that the unborn is human but that its right to exist is limited by the choice of the mother.  Binchy reasoned that the existence of such a position raised serious questions regarding those who claim to subscribe to the normative foundations of human rights theory.

  1. Legislating for Article 40.3.3: Daly on the Role of the Medical Profession

Daly noted that it was important for any prospective legislation to take proper account of the role of medical professionals in the process, both in terms of medical professionals being involved in determining if a woman is eligible for a lawful abortion, and in the administration of abortion services.  With regard to the latter, Daly noted the matter of conscientious objection on the part of individual medical practitioners and the necessity of providing training for the performance of abortions.

  1. Legislating for Article 40.3.3: Staunton on The Status of the Embryo

Staunton considered a neglected aspect of the abortion debate, namely the status of the embryo in Irish law which currently has no protection under Irish law.  The Supreme Court stated in Roche v Roche that the embryo in vitro does not come within the definition of the “unborn” in Article 40.3.3 and thus is not constitutionally protected.  She then called for legislation to ensure that assisted reproductive clinics operate within a legal and ethical framework and to clarify whether embryonic stem cell research is permissible in Ireland.

  1. Legislating for Article 40.3.3: Cahill on Equality of Life

Cahill too focused on Hederman J’s dissenting judgment in the X case, noting that his judgment more accurately reflects the radical equality of protection for life that is envisaged by Article 40.3.3 and is consistent with Ireland’s prohibition of the death penalty (Article 15.5.2) and its pursuit of a policy of military neutrality. She posited that the majority judgment, in particular the suicide risk element, posed a serious challenge to that clear and constitutionally-enshrined equality of right to life.

  1. Legislating for Article 40.3.3: Bacik on Fatal Foetal Abnormalities

Bacik argued that in cases of lethal foetal abnormality, termination of pregnancy should be available in Ireland.  Furthermore she suggested that legislating for such a prospect would not be incompatible with Article 40.3.3,  relying on the Irish Government’s argument to that effect before the European Court of Human Rights in the case of D v Ireland.

  1. Legislating for Article 40.3.3: Thornton on The Right to Travel, Reproductive Rights and Asylum Seekers

Thornton turned his attention to the issue of the ability of asylum seekers to avail of the right to travel.  In addition to the difficulties faced by Irish woman (such as cost and support), asylum seekers must also obtain permission from the Irish Minister for Justice and Equality to leave Ireland and apply to the United Kingdom or some other European country for an entry visa for the purpose of obtaining an abortion.  This increased difficulty was juxtaposed with the distinction drawn in Irish law between Irish and non-Irish unborn (Baby O v Minister for Justice) and on the limiting of citizenship rights to children who have one Irish parent.

  1. Legislating for Article 40.3.3: Brady on Legislating for Suicide

Brady’s blog post teased apart and critiqued some of the constitutional and democratic claims that the Government is relying on to justify its decision to introduce legislation on abortion.  For example, he notes that the mere fact that two referenda 20 years ago come to one conclusion does not preclude the Government from putting similar questions to the Irish public again despite claims to the contrary.  The critical question for Brady is the suicide issue and the evidence relied on to justify the inclusion of suicide risk as a criterion for abortion.

  1. Legislating for Article 40.3.3: Mills and Glackin on the Doctrine of Double Effect

Mills and Glackin considered the doctrine of double effect, as endorsed by the Catholic Church, and challenge it with reference to a case of ectopic pregnancy.  They argued that it is a logically implausible doctrine because a termination cannot be performed without an intention to destroy the foetus or embryo and because by allowing practitioners to choose from a variety of consequences, the destruction of the foetus or embryo cannot be anything other than direct.

  1. Legislating for Article 40.3.3: Schweppe and Spain on the Unborn and the Capacity to Survive Outside the Womb

Schweppe and Spain argued that there is an important legal distinction between the foetus which has no capacity for life and the situation where a baby will be born alive but only survive a matter of hours or days after birth.  The former pregnancy, it is suggested, could be legally terminated in Ireland (subject to the introduction of necessary legislation) on the basis that the purpose of Article 40.3.3 was to ensure the protection of viable foetal life.  By implication the latter pregnancy could not be terminated.  This conclusion is arrived at with reference to the Supreme Court judgment of Roche v Roche, where it was suggested that life, for the purposes of the Constitution, was a viable life: that is, life which has the capacity to exist independently of the woman if brought to term.

  1. Legislating for Article 40.3.3: O’Dowd on A Matter of Substantial Doubt

O’Dowd examined what the word “substantial” means in the context of Finlay CJ’s judgment in the X case (“real and substantial risk”). He argued against the reduction of “substantial” to a numbers/percentage game, noting that doctors routinely perform assessments without doing so.   He also suggested that a woman’s opinion of what is an acceptable risk cannot be given much weight in favouring a decision to terminate due to Article 40.3.3, relying on Hederman J’s characterisation of the basic effect of the Eighth Amendment.

14.Legislating for Article 40.3.3: Murray on ‘Hysterical Women’

Murray examined the discourse surrounding the inclusion of suicide risk as a grounds for termination of pregnancy, and the underlying narrative of the ‘unreliable and hysterical woman’.  She observed that by treating risk of suicide as different to any other physical risk is inherently discriminatory, and serves to further stigmatise mental health conditions. She further argued that, if a lengthy and cumbersome procedure is introduced, this will serve as a disincentive to woman to engage in the process, who will travel to another jurisdiction to terminate the pregnancy, rendering the constitutional right to terminate an illusory one.

Next Steps

As this synopsis demonstrates, the range of issues raised by Article 40.3.3 is considerable, and it is hoped that the various blog posts have enriched your understanding of those issues.  In keeping with our desire to contribute to the debate, we intend to publish a special edition of the Irish Journal of Legal Studies devoted to Article 40.3.3.  Many of the articles will be based on the blogs posted here today.  Others will raise additional issues.  An announcement will be posted on this site when the special edition is online.

Finally, we would like once again to thank Rights NI for standing in at the last minute to enable us to host this blog carnival and to all  our contributors for becoming involved in this project.

Catherine, Jennifer and Eimear