Reproductive Justice and the Right to Life of the 'Unborn'
Jennifer Schweppe (ed.) The Unborn Child, Article 40 3 3 and Abortion in Ireland: 25 years of Protection? (Dublin: Liffey Press, 2008) 319-348
22 Pages Posted: 28 Feb 2015
Date Written: July 1, 2008
Abstract
This chapter draws on the approach to reproductive justice developed by Women of Color in the US to argue that the Irish courts have been unjust in their interpretation of the right to life of the ‘unborn’ under Article 40 3 3 of the Constitution. A reproductive justice perspective reminds us that abortion rights are one aspect of a commitment to reproductive justice, but not necessarily the primary issue for women and men as they reproduce. Reproductive justice advocates are and ought to be as concerned about sterilisation, assisted reproduction, reproductive health services, and childcare laws and policies as they are about abortion. Secondly, a reproductive justice perspective reminds us that women and men are differently situated across sexuality, race, class, ability and nationality as well as gender when it comes to reproductive activities. A reproductive justice perspective would seek a shift from the current Irish constitutional position where ‘unborn’ interests are generally seen as trumps to a more evaluative consideration of how best to balance public and private interests in women’s reproductive roles with public and private interests in foetal life, even within the limits of Article 40 3 3. In this way we can better defend the human process of reproduction against assumptions, which have the effect of devaluing feminine and migrant life. The Irish Supreme Court’s interpretation of Article 40.3.3° in Attorney General v X (1992), an abortion access case, and O v Minister for Justice (2002), a pregnant woman’s challenge to deportation, is problematic in the differential protection attributed to the formal right to life of the ‘unborn’, just as the differential protection of the formal right to reproductive liberty along racial and gendered lines has been problematic in the US.
Keywords: reproductive justice, unborn, rights, abortion, deportation, race, gender, Ireland, constitutional law
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