An Irish Roe V's Wade?

ger12

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I'm not interested in debating whether abortion is right or wrong, that's been discussed in quite a number of threads.

Rather, could we look at whether Ireland could face a Roe V's Wade situation in the event of the removal of the recognition to the right to life of an unborn child.

In Ireland and the U.S. we have a common law system. While the U.K. also have a common law system, they don't have a written constitution so they can legislate as they please.

So I'd argue that the U.S. is the best comparator.

Do you believe any attempt to limit a woman's right to an abortion may be considered unconstitutional under Privacy and Bodily integrity like in the U.S.?



Edit
I'm adding an opinion piece by a constitutional lawyer to this OP as I believe it is significant to the discussion. Discussion around this on the thread begins on January 7th.

He suggests that "The only way it would seem possible to impose some limits on the right to abortion would be to read the decision of the people to remove constitutional protection for the unborn as somehow still subject to some implicit limitation.

However, the argument that the power of the people to amend the Constitution was subject to the natural law rights of the unborn was rejected by the Supreme Court in the abortion information Bill reference in 1995.

In the course of its judgment, the court said: “The people were entitled to amend the Constitution in accordance with the provisions of article 46 of the Constitution and the Constitution as so amended by the Fourteenth Amendment is the fundamental and supreme law of the State representing as it does the will of the people.”

Unless one can draw a relevant distinction in this context between natural law and some other possible restriction on the people’s power to amend the Constitution, it seems to me that this decision means that the simple deletion of the Eighth Amendment will have to be interpreted as an unqualified decision to remove constitutional protection from the unborn, resulting in abortion on demand."

So if the amendment is removed, it won't be a case of simply returning to the situation in 1982. There may be an imperative to disregard any rights on the part of the unborn child.

"Abortion on demand the legal outcome of repeal of Eighth Amendment"
http://www.irishtimes.com/opinion/abortion-on-demand-the-legal-outcome-of-repeal-of-eighth-amendment-1.2807399

What happens if the 8th is repealed?
 
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ger12

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I should point out that on removal of the 8th amendment,The Offences Against the Person Act is there (1861) and was carried over by the Free State Constitution and by Article 50 of Bunreacht na hÉireann. When the Free State was established everything that was law the day before was law the day after insofar as it didn't conflict with the constitution or the Treaty.
Constitution of the Irish Free State (Saorstát Eireann) Act, 1922

Section 58. "Every woman, being with child, who, with intent to procure her own miscarriage, shall unlawfully administer to herself any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, and whosoever, with intent to procure the miscarriage of any woman, whether she be or be not with child, shall unlawfully administer to her or cause to be taken by her any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, shall be guilty of felony, and being convicted thereof shall be liable . . . to be kept in penal servitude for life".

So that'll be repealed ASAP I imagine.
 

talkingshop

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I should point out that on removal of the 8th amendment,The Offences Against the Person Act is there (1861) and was carried over by the Free State Constitution and by Article 50 of Bunreacht na hÉireann. When the Free State was established everything that was law the day before was law the day after insofar as it didn't conflict with the constitution or the Treaty.
Constitution of the Irish Free State (Saorstát Eireann) Act, 1922

Section 58. "Every woman, being with child, who, with intent to procure her own miscarriage, shall unlawfully administer to herself any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, and whosoever, with intent to procure the miscarriage of any woman, whether she be or be not with child, shall unlawfully administer to her or cause to be taken by her any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, shall be guilty of felony, and being convicted thereof shall be liable . . . to be kept in penal servitude for life".

So that'll be repealed ASAP I imagine.
Hasn't the Protection of Life During Pregnancy Act 2013 (or possibly 2014) replaced the 1861 Act in this regard?
 

tsarbomb

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Any change to the 8th will have the courts trying to effectively legislate for abortion on demand which is why we should keep the ammendment as it is. They simply cannot be trusted.
 

ger12

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Hasn't the Protection of Life During Pregnancy Act 2013 (or possibly 2014) replaced the 1861 Act in this regard?
Would both not be defunct if abortion was legislated for?

And if there was a successful constitutional action taken not to limit a woman's right to an abortion under Privacy and Bodily integrity?
 

gleeful

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Roe vs Wade was based on the wording of the article on the protection of privacy in the US constitution.

Is there any similar part of the Irish constitution that could provide a similar justification? If not, this thread is pointless.
 

Mercurial

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I'm not interested in debating whether abortion is right or wrong, that's been discussed in quite a number of threads.

Rather, could we look at whether Ireland could face a Roe V's Wade situation in the event of the removal of the recognition to the right to life of an unborn child.

In Ireland and the U.S. we have a common law system. While the U.K. also have a common law system, they don't have a written constitution so they can legislate as they please.

So I'd argue that the U.S. is the best comparator.

Do you believe any attempt to limit a woman's right to an abortion may be considered unconstitutional under Privacy and Bodily integrity like in the U.S.?
Our Supreme Court likes to defer to the Oireachtas where possible, so I think they would try to do that first, rather than making law on such a contentious issue.
 

ger12

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Roe vs Wade was based on the wording of the article on the protection of privacy in the US constitution.

Is there any similar part of the Irish constitution that could provide a similar justification? If not, this thread is pointless.
After the legal prohibition of the importation and sale of contraceptives was found to be unconstitutional as a breach of an unenumerated right in McGee v Attorney General [1974] it was suggested that the doctrine of unenumerated rights might be stretched so as to invalidate the criminalization of abortion.

"this is what had already happened under similar provisions in the US Constitution; the right to privacy had been applied to the issue of contraception in **Griswold v Connecticut 381 U.S. 479 (1965) and this was found to legalize abortion in certain circumstances in **Roe v Wade 410 U.S. 113 (1973)"
https://lawinireland.wordpress.com/constitutional-law/

Hence the origin of the current amendment.
 

talkingshop

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Would both not be defunct if abortion was legislated for?

And if there was a successful constitutional action taken not to limit a woman's right to an abortion under Privacy and Bodily integrity?
Abortion is legislated for - to the extent it is - in the POLDPA, afaik. That would stay in place if the 8th was removed, until the Oireachtas decided to amend it.
 

ger12

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Our Supreme Court likes to defer to the Oireachtas where possible, so I think they would try to do that first, rather than making law on such a contentious issue.
On a constitutional matter, when do they take that course of action?
 

ger12

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Abortion is legislated for - to the extent it is - in the POLDPA, afaik. That would stay in place if the 8th was removed, until the Oireachtas decided to amend it.
Even if the Oireachtas amends that Act, to say restrict for sex selection abortion or restrict for late term abortions for example, a successful constitutional challenge similar to the U.S. Roe V's Wade would override that?
 

Half Nelson

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Soros wants the 8th removed because it is effective; it saves lives.

If the law on abortion ever becomes subject to the whims of politicians we will eventually end up with abortion on demand... leading to who knows what further levels of barbarism.

The Law is all that keeps the bloodthirsty mob from the children. Weaken that and you weaken their protection.
 

talkingshop

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Even if the Oireachtas amends that Act, to say restrict for sex selection abortion or restrict for late term abortions for example, a successful constitutional challenge similar to the U.S. Roe V's Wade would override that?
Yes, it would.
 

ger12

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For example, the KAL case.
I don't see the comparison, wasn't that referred back to the HC from the SC to challenge different elements of law?
 

Mercurial

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I don't see the comparison, wasn't that referred back to the HC from the SC to challenge different elements of law?
Part of the judgment basically suggested that if the Oireachtas wanted to legislate for marriage equality, that might be okay, but that the Court would not rule that such a right was already in the Constitution.
 

ger12

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Part of the judgment basically suggested that if the Oireachtas wanted to legislate for marriage equality, that might be okay, but that the Court would not rule that such a right was already in the Constitution.
To give time for a SSM referendum perhaps? I don't see how it can be compared to this situation tbh.
 

talkingshop

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And the ECHR?
The European Court of HR, as I read it, would like to enforce abortion (and would also like to enforce gay marriage) but haven't done so to date as they don't feel they can find these rights in the Convention. But they also seem to have this bizarre thing that if enough states endorse abortion, or gay marriage (or other things) they can then find that these are enforceable, "found" in the Convention. So yes, quite honestly, even though I favour a more liberal abortion regime than you, I think the Irish people would be advised to keep what they want about abortion in the Constitution, to avoid possibly being dictated to by the ECHR on this.
 

ger12

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The European Court of HR, as I read it, would like to enforce abortion (and would also like to enforce gay marriage) but haven't done so to date as they don't feel they can find these rights in the Convention. But they also seem to have this bizarre thing that if enough states endorse abortion, or gay marriage (or other things) they can then find that these are enforceable, "found" in the Convention. So yes, quite honestly, even though I favour a more liberal abortion regime than you, I think the Irish people would be advised to keep what they want about abortion in the Constitution, to avoid possibly being dictated to by the ECHR on this.
The ECHR is subordinate to our constitution?
 


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