Courts will still face complex cases even if Eighth repealed

Repealing of the Eighth Ammendment will not end the debate and will lead to various questions being teased out over the next decades in the courts, writes Elizabeth O’Connell.

Health Minister Simon Harris is now in the process of drafting legislation which will be passed by the Oireachtas and become the law of the country in the event that the vote in the referendum is to repeal Article 40.3.3.

The draft legislation will have to address many practical questions which arise regularly in other countries where abortion is legal. Otherwise, these issues are again left to the courts, which would be ironic considering that the wish to avoid the judges making decision was cited as one of the reasons for a referendum in the first place.

One obvious question is whether the father of the unborn child will have a say.

The answer is that this is unlikely. Those who are pro-repeal see abortion in terms of a reproductive right or, more accurately, a right of the mother to privacy and autonomy. Such a right — if that is the correct word in the context of abortion — is undermined by another person, even the father, having a role in the decision.

Until the Supreme Court decision was handed down on Wednesday, there was a view that the unborn child had a status and, possibly even a level of protection, even before Article 40.3.3 was voted into the Constitution in 1983.

This indeed was the view of some of the most eminent judges of the time. If the unborn even existed, with any level of protection, then it would follow that the connection with its father existed too.

An argument in favour of the father’s having a role in this decision would be strongly supported by the special place the family has under the Irish Constitution, albeit only if he were married to the mother.

Article 40.1 may surprise people in its language or tone. It seems somehow out of sync with the liberal view of the modern world. It says: “The State recognises the family as the natural primary and fundamental unit of Society, and as a moral institution possessing inalienable and imprescriptible rights, and antecedent and superior to all positive law”.

If a married father — maybe for instance in the context of a separation — were to challenge his being excluded from the decision of whether an abortion were to go ahead, he could very reasonably argue that this decision to give birth to the child has to be the most central decision a family could make; that to exclude him would be to hollow out any meaning from Article 40.1

Now, since the Supreme Court has found that the unborn has a lesser, or perhaps no, role or existence, without Article 40.3.3., it seems that the father’s argument would be far less likely succeed.

More generally it seems reasonable to conclude that repeal of Article 40.3.3 would affect, and diminish, the role of the family in Article 40.1. Perhaps more controversially, another question for the minister to address is whether the parents of a girl under 18 years will have a say in whether she will have an abortion or not?

Will that child’s mother and father even be notified by the GP or abortion clinic dealing with her? It is easy to imagine that many parents would be horrified at not knowing.

In the UK, that difficult decision as to whether the parents should be notified is left to the doctor.

However, it seems to me that the powerful protection afforded to the family under our Constitution makes this a far more thorny question in this country and makes it virtually certain that there will be many cases before the courts over the next decade on this question, no matter what the final form of the legislation.

This question will be even more agonising where the girl is in care of the State. In that situation, she will be subject to a care order, and her mother and father will have limited or no input into her welfare.

It surely will not be the case that the legislation will give Tusla the decision-making role. True, Tusla will legally be in the same position as a parent, but it is hard to see how any care worker should make that decision.

As a country, we have a responsibility — a duty — to remember the C Case where, in 1997, a 13-year-old, pregnant as a result of rape, underwent an abortion while in the care of the Eastern Health Board on foot of a court order (opposed by her parents) on grounds that she was suicidal, but on becoming an adult, bitterly regretted the loss of her unborn child.

What’s more, Tusla would almost inevitably have to face the question of whether it could place the baby, if born, in foster care if the pregnancy were to continue to birth.

Any person with common sense would have to fear that the absence of resources, and specifically an absence of foster placements, would affect that decision. My guess would be that the courts, ironically again, will be given this decision-making role.

Another question, which I have not seen clearly answered so far, is what time limit will be on abortion on grounds of threat to the health of the mother.

So far in the debate, we have heard about the limit on unrestricted abortion being 12 weeks, but not the limit for this slightly more restricted ground. The question is vital because the experience of the UK demonstrates that abortion on grounds of health operates de facto as almost nunrestricted abortion. In the UK, the limit in this situation

is 24 weeks. If we have a later limit, contrary to having women travelling to the UK, we face a real possibility of women travelling from there to this country. With abortion clinics operating on the basis of profits, there is no reason why this would not happen.

One truth, one certainty, in the swirl of questions around the question of abortion legislation is that that the repealing of the Eighth Ammendment will not end the debate and will lead to this question being teased out over the next decades in the courts.

Elizabeth O’Connell is a senior counsel

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