Blog: Supreme Court judgment clears the way for abortion legislation
Mairead Enright, senior lecturer at Birmingham Law School and co-director of the Northern/Irish Feminist Judgments Project, writes for Irish Legal News on yesterday’s Supreme Court ruling.
Yesterday the Irish Supreme Court in M v. Minister for Justice answered a long-standing question in Irish constitutional law: Are foetal rights confined to the right to life in the Eighth Amendment, or does the foetus have other rights, located elsewhere in the Constitution, some of which pre-date the Eighth?
The Supreme Court has answered that ‘the unborn’ only enjoys one right while in utero; the right to life, or in effect, the right to be born. It seems to follow, although the Supreme Court did not address it directly, that if the Eighth Amendment is removed from the Constitution in a referendum (or effectively removed, and replaced with an enabling provision as the government has proposed), the foetus will no longer a rights-bearing subject in utero.
In some circumstances, the State will be obliged to take a pregnancy into account — to take note of the ‘prospective rights’ of the unborn. But these are not ‘rights of the unborn’ as such; rather they are the ordinary constitutional rights of born persons, which the foetus will enjoy if it is born alive. ‘Foetal personhood’ seems to dissolve into the broader spectrum of constitutional personhood generally, with rights accruing only after birth.
This was not an abortion case, or even one in which any purported rights or interests of the foetus were in conflict with those of any other individual. However, two things seem clear. First, any state duty to take account of the rights which a foetus will enjoy upon birth is a limited one — in M, for example, the Court held that it would not necessarily limit the state’s power to deport a non-citizen. Second, the Court refuted the claim made by counsel for M that the consequence of the judgment was that the foetus would be ‘constitutionally invisible’ without the Eighth. Rather, the Court said, even leaving questions of rights aside, the State would be entitled to regulate issues around pregnancy in accordance with the common good.
From a Repeal perspective, this is a helpful judgment. It confirms that repeal will clear the way for abortion legislation. It also allows us to consider new constitutional languages with which to value foetal life, that do not require pitting the foetus and the pregnant person against one another as independent rights-holders at all stages in pregnancy. However, this is also a narrow judgment, careful not to offer obiter guidance on possible routes to regulating the termination of pregnancy, or to flesh out the broader relationship between foetal life and maternal rights after repeal.
On International Women’s Day, it is worth observing that three of the deciding judges in this case were women. But there is no real sense, in this judgment, of a feminist judicial voice. The word ‘woman’ appears independently in the judgment only once; ‘mother’ appears frequently, but largely when discussing other cases. When the judgment talks about the ‘common good’, it references the sanctity of life, but not the societal importance of voluntary pregnancy. Pregnancy is oddly disembodied within the judgment. M’s mother — the woman whose pregnancy could have anchored her partner to Ireland long enough to apply for residency — is scarcely mentioned. The judgment is about the abstract unborn and the state. Of course, there are plausible pragmatic reasons, in the lead-up to a referendum, for the court’s conservatism (and for its unanimity on this occasion).
Nevertheless, this judgment has cleared the way for a referendum authorising a new fundamental law around pregnancy, without giving us very much sense of what that law will consist in. For the moment, it is up to civil society, and to the government, to articulate a vision for pregnant women’s rights after repeal.