Dr. David Kenny:

I thank the Chairman. I have been asked to address the committee on enumerated and unenumerated rights in the Constitution as they relate to the committee’s work, and on the effect of either repealing or replacing Article 40.3.3o. I will address each of these matters in turn.

The Irish Constitution protects a variety of personal rights. Some are expressly set out or enumerated in the Constitution, mainly in Articles 40 to 44, including the right to life, good name, freedom of expression, etc. The courts have also recognised certain unenumerated or implied rights, which are protected, notwithstanding that they are not specifically listed in the Constitution, for example, the right to bodily integrity, the right to travel, and the right to marital privacy. Though not listed specifically in the text, if recognised by the courts as being implied by the provisions and values of the Constitution, they are protected just as if they were enumerated in the text.

The Constitution empowers judges of the superior courts to judicially review laws, and invalidate them if they violate the provisions of the Constitution, which includes violation of express or unenumerated constitutional rights. It is permissible for laws to restrict rights, but this must be done in an proportionate manner, that is, rights should not be restricted more than necessary to achieve some other important objective and, overall, the harm done by the restriction should not outweigh the benefit. The courts also defer to some degree to the Legislature’s determination about the need to restrict rights, and offer particular deference in instances where the Legislature is balancing two rights against one another, but courts can and do invalidate laws when it is shown that the Legislature restricted rights irrationally or disproportionately.

Before the insertion of Article 40.3.3o, the Constitution did not contain any express reference to the right to life of the unborn or to the regulation of abortion. The courts also never handed down judgments that directly addressed the constitutionality of any particular legal regulation of abortion. However, the courts did recognise several rights that might have had some significance for the constitutionality of abortion laws, and made some comments to this effect.

The courts suggested on several occasions in the 1970s and 1980s that there was an unenumerated right to life of the unborn.In 1995, reflecting on these comments, the Supreme Court suggested that the courts, before the insertion of Article 40.3.3^o, had recognised the right to life of the unborn as an unenumerated personal right. On the other hand, the courts had also recognised a right to bodily integrity, and a right to marital privacy that had encompassed a right to have some access to contraception. This might have grounded an argument that restrictive abortion laws could have been unconstitutional as a violation of these rights. However, the courts had given significant indications in the 1970s and 1980s that this was not their view, and that the implied rights recognised by the courts could not be used to challenge a prohibition on abortion.

Although we cannot know for sure – since no case was ever brought to test this – these comments suggest that, before 1983, a liberalised abortion regime, had it been enacted, might have been deemed unconstitutional as a violation of the unenumerated rights of the unborn child, whereas a strict limitation on abortion would probably not have been unconstitutional by reason of the privacy or autonomy rights of women. With the insertion of Article 40.3.3^oin 1983, the right to life of the unborn was given express textual recognition, and given equal weight to that of the mother, and the consequences of this are well known.

I have been asked to comment on the difference between repealing and replacingArticle 40.3.3^o, and what the consequence might be for relevant constitutional rights. I am taking replacement to mean, in this context, the replacement suggested by the Citizens' Assembly, that is, replacing Article 40.3.3^owith a provision empowering the Oireachtas to have some exclusive competencein this area. I am happy to discuss other versions of replacement if the committee wishes. The question is what rights might exist if Article 40.3.3^owas simply removed, and what might this mean for laws passed in this area and in light of this, should something be inserted in the Constitution to replace the Article.

First, it is crucial to stress that neither of these proposed changes to the Constitution would have an immediate or automatic effect on the legal position on abortion. The legal position will remain whatever is contained in law – currently the Protection of Life During Pregnancy Act 2013 – unless and until the law is changed by the Legislature or is invalidated by the courts. However, as will be discussed, if the Judiciary held a legislative solution was not compatible with the Constitution as amended, this could have the effect of altering the legal position.

The first option is simply to remove the text of Article 40.3.3^oand not put anything in its place. This seems straightforward, because if the Constitution says nothing explicit, it might be inferred that it will have no role to play, and we might assume that the matter will be regulated by law. However, it is not so simple. This outcome is certainly one possible consequence of repealing the Article 40.3.3^owithout replacement, but there are other possible consequences as well.

The other possibility is that the repeal of Article 40.3.3^owithout replacement does not remove the issue from the bailiwick of constitutional rights, but rather leaves it to the courts to determine how constitutional rights should affect the regulation of abortion. The courts could hold that the right to life of the unborn continues to enjoy constitutional protection as an unenumerated right, as it did before the advent of Article 40.3.3^o, or as a facet of the rights of children under Article 42A or the right to life generally under Article 40.3. On the other hand, the courts could hold that the right of autonomy, bodily integrity or privacy of women extends to the question of abortion; or they could hold that both of these things are so.

All of this turns on complex questions of constitutional interpretation of the meaning of repeal. In the event of repeal, it would be open for a well-situated person to challenge the law on abortion as a violation of one of these sets of rights and ask the courts to find the law unconstitutional, and it is very hard to say with certainty what the courts would do. There are several possibilities. First, the courts could hold that one or both of these sets of rights exist, but decide that they will defer to the legislative determination of how to balance these rights. Second, the courts could hold that neither set of rights exists, and the Constitution does not speak to the question of abortion. Third, the courts could hold that the right to life of the unborn, even when no longer expressly mentioned in the Constitution, was protected and strong enough to render a liberal abortion law unconstitutional. Fourth, the courts could hold that the autonomy, privacy or bodily integrity rights of women were strong enough to render a restrictive abortion law unconstitutional. In these latter two cases, the courts could rule that the rights were disproportionately infringed by the law, and this would limit the Legislature in making a new law regulating the area, changing the scope and content of the regulation of abortion.

It is very difficult to say with certainty which of these options would prevail in the long run. Any assertion to the contrary offers a certainty that is not available. For my part, in the short term, the first or second option seems most likely, based on the current viewpoints of courts and their attitude of respect for legislative determination of complex social issues. However, in constitutional law, viewpoints change and shift, the composition of the courts is altered and what seemed previously unlikely becomes plausible. Even if a court seems unlikely to intervene at the moment, we generally do not write constitutions for the here and now, but for the long run. The option of repealing Article 40.3.3^owithout replacement leaves the question of judicial intervention open in the future, with the possibility of courts invalidating a law regulating abortion, requiring either a more liberal or a more conservative regime. If this were unpopular, it could only be changed by a referendum to change the Constitution to overturn the judicial decision. This creates uncertainty about what laws the Legislature can pass, and whether the Legislature alone will formulate the law in this area. It will be for this committee to consider if the best course is to leave open this risk of judicial intervention or to try to reduce it.

A way to limit this uncertainty is to remove Article 40.3.3^oand replace it with a provision conferring upon the Oireachtas exclusivepower to regulate this area and balance the competing rights involved, to foreclose or limit the possibility of judicial intervention. I take this to be the suggestion made by the Citizens' Assembly. Rather than allow judicial intervention in this controversial area, this approach prefers that the legal position on abortion would be set by a democratically accountable legislature, that this legal position would be certain and not open to invalidation or restriction by the courts and that the legal position could be changed using the ordinary process for amending laws if views and outlooks shifted. Again, it will be for the committee to decide if these benefits would warrant adopting this approach.

It should also be noted that there is nothing, per se, improper about denying the Judiciary power to intervene in certain areas. The Constitution excludes judicial consideration of several major matters, including emergency legislation, various matters related to the operation of the Houses of the Oireachtas such as parliamentary privilege and the directive principles of social policy set out in Article 45 of the Constitution.There are several means by which this could be done, to different effect. First, to state that the Oireachtas is specifically empowered to legislate on this issue. Second, to state this and further state that it should be for the Oireachtas to balance the relevant rights involved and third, to state that the Oireachtas should be empowered to legislate on the issue and that judges cannot invalidate such a law on the basis of constitutional rights.

It is not clear that the first of these options would have the desired effect. Specific empowerment to legislate for an issue does not immunise such legislation from judicial review. One would probably have to go further and suggest some exclusivity in respect of the power of the Legislature. The second option, by expressly giving the Oireachtas the job of balancing relevant rights, would strongly indicate to the Judiciary that courts should not intervene to invalidate the solution made by the Legislature. The third option might go further still, clearly excluding any judicial intervention. There are also various other options along this spectrum. There are different forms of words that could be used to achieve these outcomes. Examples from our own Constitution, past amendment proposals, and the constitutions of other countries all provide possibilities.

In considering the removal of Article 40.3.3^oand its constitutional regulation of abortion, a most important consideration is the role of constitutional rights and the Judiciary in the aftermath of this change. Ultimately, this question requires careful consideration of democratic accountability, certainty and predictability, and the desirability of judicial intervention in the regulation of abortion. The question put to the people should be formulated with these matters in mind, so that the people can have a clear understanding of the possible consequences of their vote.