Attorney General v X and Others (1992): An Imagined Feminist Judgment
Forthcoming 2016, Enright, McCandless and O’Donoghue eds., Judges’ Troubles and the Gendered Politics of Identity, Hart.
19 Pages Posted: 2 Dec 2015 Last revised: 2 Apr 2016
Date Written: September 1, 2015
This paper is an imagined judgment in The Attorney General v X and others  1 IR 1 (IESC). The imagined Supreme Court judgment addresses the question of abortion’s permissibility under the Irish Constitution through a feminist approach to constitutional rights, legal method and socio-legal knowledge. In keeping with constitutional regimes throughout the world, the Irish constitution protects fundamental rights to life, privacy, liberty, equality and bodily integrity, among other interests. However, the 1937 Constitution was amended in 1983 in order to add Article 40 3 3, otherwise known as the Eighth Amendment, which provides: “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.” The imagined judgment endorses the actual legal decision in the real X case, that Ms X, a pregnant, suicidal, fourteen year old rape victim, was constitutionally permitted to have an abortion in Ireland because this vindicated her right to life. But the legal reasoning which produces the decision here is substantially different to that provided by any of the judges of the 4/1 majority in six key ways.
First, the judgment is explicit in outlining an approach to constitutional and judicial interpretation that combines a commitment to impartiality and harmony with a concern for text, evidence and craft as three dimensions of judicial method. Second, it argues that the purpose of the Eighth Amendment was to prevent the recognition of abortion as a personal right. Given the impact of Article 40 3 3 women cannot have a dignity-based right to authorize abortion when seeking to determine the course of their reproductive lives. But the Amendment does not mean that women’s existing constitutional rights are irrelevant in determining the scope of any other right to abortion under Article 40 3 3. Third, the judgment implicitly draws on a substantive equality approach when it holds that the constitutional value of life as it informs Article 40 3 3 has to take substantive life differences into account. A woman’s constitutional right to life is to a rightful life, that is to a life lived with her other constitutional rights, including bodily integrity, privacy, liberty, freedom from cruel and degrading treatment and equality.
Fourth, drawing on common knowledge of pregnancy, the judgment holds that unborn’s right to life under Article 40 3 3 is to a bare, biological life. When the two come into conflict it may be justifiable to give more legal weight to the woman’s right to life. Therefore the legal test adopted here for determining when an abortion is constitutionally permissible is when carrying a pregnancy is an impracticable burden on a woman’s life. This test is substantially different from the one adopted in the actual X case, that a woman may terminate a pregnancy when there is a real and substantial risk to her life, as distinct from her health. Among other things, it avoids the bright line distinctions between life and health which have been problematic for pregnant women since X, including Ms A, Ms B, Ms C, Ms D1, Ms D2, Savita Halappanavar, Michelle Harte and Ms Y, and their health care providers. Fifth, particular circumstances and conditions of pregnancy e.g. pregnancy as a result of assault, or pregnancy in someone immature or vulnerable, may make a particular instance of pregnancy more of an impracticable burden for those women than it would for others. Sixth, Article 40 3 3 endorses a public duty to support reproductive life. This would seem to mean that a state cannot simply abdicate all its responsibility by privatizing this duty and transferring it all to the pregnant woman. Rather the state has an obligation to support reproduction by improving living conditions in a way that is consistent with pregnant women’s constitutional rights.
Keywords: abortion, constitutional law, rights, feminist judgments, reproductive justice
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