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Repeal the 8th: Prospects for Reform in Irish Abortion Law

This talk by Professor Fiona de Londras explores the history and current state of abortion law in Ireland, focusing on the 8th Amendment. It discusses the challenges and possibilities for reform, including decriminalization and the issue of fatal fetal abnormalities, while also examining the potential impact of a post-repeal legacy. The talk considers the constitutional, political, and social implications of reform, as well as the intersections between abortion and human rights.

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Repeal the 8th: Prospects for Reform in Irish Abortion Law

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  1. ‘Repeal the 8th’: Prospects for Reform in Irish Abortion Law Professor Fiona de Londras @fdelond University College, Oxford 26 April 2016

  2. Abortion Law in Ireland • Bunreacht na hÉireann 1937; OAPA 1861 • Constitution and identity (Chubb) • Popular sovereignty and the Constitution • ‘Carrying over’ pre-’22 laws & the non-repugnancy clause • The lived reality of reproductive autonomy 1922-1983

  3. Abortion Law in Ireland • 8th Amendment, 1983 (Article 40.3.3) • 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.

  4. Abortion Law in Ireland • Attorney General v X [1992] 1 IR 1 • …real and substantial risk to the life, rather than the health, of the mother… • 13th & 14th amendments

  5. Abortion Law in Ireland • A, B & C v Ireland (ECHR) • Death of Savita Halappanavar • Protection of Life During Pregnancy Act 2013 • ‘Ms Y’ & ‘Ms P’

  6. Resisting the 8th • Solidarity & support • Public disobedience & protest • Performance protest • Engagement with IHRL institutions • Political campaigning • ‘Coming out’

  7. Reform without Repeal? • Decriminalisation • ‘Fatal foetal abnormalities’ • Reduced process • But the key barriers would remain • Constitutional protection of foetal life • ‘Viability’ threshold • Lack of content in ‘as far as practicable’ • ‘Risk to life’ threshold

  8. The 8th Amendment: Challenges for Repeal • Constitutional identity & the particular position of Ireland as moral protector of the foetus (Fletcher) • Construction of pro choice positions as a form of internationalist neo-colonialism (de Londras) • Abortion & human rights unhelpfully entangled (Smyth) • Ireland as an international, strategic ‘battlefield’ in abortion rights (D. Quinn, ‘Ireland’s culture war’, “Ireland’s pro-life civil war”) • ‘Balance’ and imbalance in public discussions (form of guerilla anti-abortion activism? ref McGuinness) • Dissonance between institutional embeddedness of anti-abortion positioning & popular desire for change • Different campaign structures & forms

  9. The 8th Amendment: a post-repeal legacy? • Political caution (and over-statement of costs?) • Attempts to form a government in 2016 & the reported role of 8th Amendment in talks • ‘X Case light’? Example: Labour Party proposals • “real and substantial”--an immeasurable concept? • Minimal access (‘rape, incest, FFA’)—the apparent narrowness of the general consensus—what happens re “bad” abortions? • Conscientious objection & meaningful access (“dirty work”, ref McGuinness) • Medical & legal training

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