Echoes from Across the Pond: Major US Decisions on Abortion and Their Impact on Ireland

ECHOES FROM ACROSS THE POND: MAJOR US DECISIONS ON ABORTION AND THEIR IMPACT ON IRELAND

Kieran Spencer

Introduction

The development of the abortion debate in Ireland is an example of how legal developments in one country can have a profound impact on another jurisdiction. Despite important social, religious and constitutional differences between the US and Ireland, twentieth century US Supreme Court decisions sparked the constitutionalisation of abortion restrictions in Ireland. This article will briefly discuss the history of the abortion debate in the US and Ireland with a focus on the constitutional ‘right to privacy’ doctrine in light of the possibility that the US Supreme Court may overturn the seminal case of Roe v Wade. 1

History in the US

Prior to Roe, abortion and contraceptives were regulated at the state level by laws which generally prohibited abortion and restricted access to contraceptives.2 In the late 20th century federal courts evolved a doctrine which held that certain aspects of the marital relationship were protected through an unenumerated constitutional right to privacy which took precedence over state law.

In the case of Griswold v Connecticut, decided in 1965, the US Supreme Court held that the federal constitution protected a married couple’s right to use contraception. 3 Later in 1973, in Eisenstadt v Baird, the right to use contraception was extended to unmarried women.4 Roe v Wade expanded this sphere of protection to include a woman's right to terminate a pregnancy in the first trimester, stating that '[for] the State's important and legitimate interest in potential life, the ‘compelling’ point is at viability'.5 This

1 Roe v Wade 410 US 113 (1973). 2 David J Garrow, ‘Abortion before and after Roe v. Wade: An Historical Perspective’ (1999) 62 Albany law review 833. 3 Griswold v Connecticut 81 US 479 (1965). 4 Eisenstadt v Baird 405 US 438 (1972). 5 Roe v Wade (n 1) 163.

monumental decision struck down all State laws restricting abortion in the first trimester.

Following Roe, the US Supreme Court pulled back and steadily weakened the right to abortion by permitting restrictions on such ancillary matters as using federal funds for abortion,6 and bans on certain abortion procedures.7 In Planned Parenthood v Casey the court even accepted that states could place restrictions on abortion even before the point of viability, provided they did not place 'an undue burden on a woman's ability to make [the] decision'.8

While Casey maintained the right to abortion in principle, many conservative states managed to prevent almost all abortion clinics from operating within their borders with laws that were not held to violate the undue burden standard in Casey. For example, a 2018 study found that the state of Missouri had only one abortion facility for every 1,365,575 women.9 More recently federal courts have permitted Texas to effectively ban all abortions 'after detection of a fetal heartbeat' using a novel private lawsuit enforcement scheme designed to evade judicial review. 10

In the summer of 2022 the US Supreme Court will hand down a decision in the case of Dobbs v Jackson, which is set to overturn the viability test from Roe as interpreted by Casey. 11 In Dobbs, the Mississippi Solicitor General argues that Roe and Casey should be overturned on the grounds that they have 'no basis in the constitution' and have 'damaged the democratic process'.12 If Roe is overturned many state legislatures would

6 Planned Parenthood v Casey 505 US 833, 1001 (1992) 885. 7 See Gonzales v Carhart, 550 US 124 (2007). 8 Planned Parenthood v Casey (n 6) 874. 9 Alice F Cartwright and others, ‘Identifying National Availability of Abortion Care and Distance From Major US Cities: Systematic Online Search’ (2018) 20 J Med Internet Res e186. 10 In Re Whole Woman’s Health, Et Al 20 Jan 2022; Texas House of Representatives Public Health Committee (Texas House of Representatives), ‘Bill Analysis SB8’ (13.05.2021) 1; S B 8 (Texas 2021 Abortion Law) (US Tex 2021).In Re Whole Woman’s Health, Et Al 20 Jan 2022; Texas House of Representatives Public Health Committee (Texas House of Representatives), ‘Bill Analysis SB8’ (13.05.2021) 1; S B 8 (Texas 2021 Abortion Law) (US Tex 2021). A feotal heartbeat can be detected as early as 6 weeks after gestation. 11 See Amy Howe, ‘Majority of Court Appears Poised to Roll Back Abortion Rights’ (1 December 2021); Greer Donley and Jill Wieber Lens, ‘Second-Trimester Abortion Dangertalk’ (2021) 62 Boston College Law School Boston College Law Review 2145 ABI/INFORM Global, 2591493668; See also Dobbs v Jackson Women’s Health No 19-1392 (oral argument transcript) www.supremecourt.gov/oral_arguments/argument_transcripts/2021/19-1392_4425.pdf. 12 Dobbs v Jackson Women’s Health oral argument transcript) (n 12) 4. 117

further restrict the practice or could even ban abortion altogether.13 The recent history of abortion restrictions in Ireland seem to be the reverse of the process in the US.

History in Ireland

Until the late twentieth century, most of the Irish population held religiously conservative social views.14 Abortions were prosecuted under an 1861 preindependence law which criminalized, 'procure[ment] of a miscarriage' and stipulated a penalty of penal servitude for life.15

Despite this historical conservatism, the Irish Supreme Court began to adopt the doctrine of an unenumerated right to privacy in certain instances. In McGee v Attorney General, the majority of the Irish Supreme Court applied the US case of Griswold v Connecticut to find that married couples have a right to privacy which includes access to contraception.16 Despite the holding, a majority of the judges indicated that the Irish Constitution did not protect an unmarried woman’s right to use contraception.17

One history of the Irish Supreme Court noted that one justice, Walsh J, did not cite Griswold v Connecticut in his more restricted decision on the right to use contraception despite his close personal connection with one of its authors, US Supreme Court Associate Justice Brennan.18 One can speculate that this is because Walsh J. wanted to distance the decision from the line of caselaw from Griswold which had just been used to establish a US right to abortion in Roe.

19

In response to the McGee holding, some in Ireland began to fear that the Irish courts might develop the ‘right to privacy’ into a constitutional prohibition on abortion restrictions.20 Religious conservatives thus championed the 8th Amendment, which

13 ‘What If Roe Fell?’ (Center For Reproductive Rights, 2021) <https://reproductiverights.org/maps/what-if-roe-fell/> accessed 18 February 2022. 14 R Sinnott, ‘Cleavages, Parties and Referendums: Relationships between Representative and Direct Democracy in the Republic of Ireland.’ (2002) 41 European Journal of Political Research 811, 218, Academic Search Complete; See also Oran Doyle, The Constitution of Ireland: A Contextual Analysis (Bloomsbury Publishing Plc 2018) 173. 15 Offences Against the Persons Act 1861 ss 58–59. 16 McGee v Attorney General [1974] IR 284. 17 ibid 304, 320, 322, 328, 324. 18 ibid 322-329; See also Ruadhán Mac Cormaic, The Supreme Court (Penguin Ireland 2016) 173–74. 19 Ruadhán Mac Cormaic, The Supreme Court (n 18). 20 ibid generally 138ff.

passed by referendum with the support of two thirds of voters and amended the Irish Constitution to recognize foetal personhood and require the state to protect the foetal right to life.21

Irish courts interpreted the wording in the 8th Amendment in a conservative manner, generally placing rights of a foetus before the rights of the pregnant woman. For example, in Attorney General v Open Door Counselling, the Supreme Court prohibited a counselling service from informing pregnant women about abortion services abroad, holding that while there was no law prohibiting such services, the Constitution now required that '[the] qualified right to privacy, the rights of association and freedom of expression and the right to disseminate information cannot be invoked to interfere with the fundamental right to life of the unborn.'22

In 1992, the Irish position shifted significantly in Attorney General v X which involved a pregnant 13-year-old rape survivor. While Ireland also had no law prohibiting travel abroad for abortion at the time, the Attorney General sought and received an injunction from the High Court, which barred the girl from traveling to the UK to have an abortion.23 In response to the decision there was widespread public outcry both in Ireland and abroad, and large protests formed at the Irish parliament.24 Speaking for a divided Supreme Court, Finlay CJ reversed this, holding that, the girl’s threats of suicide were a sufficient risk to her life to make an abortion permissible.25

In subsequent referendums, Irish voters ratified constitutional amendments which overturned the state’s ability to prevent women from traveling abroad for an abortion as well as judge made prohibitions against abortion information services.26 Simultaneously voters rejected another amendment which would have removed “risk of self-destruction” as grounds for permitting an abortion.27

21 ibid 273ff; ‘Referendum Results 1937 - 2019’ (2 April 2021). 22 Attorney General v Open Door Counselling [1988] IR 593 617. 23 Attorney General v X [1992] SC 1 (SC) 278. 24 Ailbhe Smyth, ‘The 'X' Case: Women and Abortion in the Republic of Ireland, 1992’ (1993) 1 Feminist legal studies 163, 166. 25 Attorney General v X [1992] SC 1 (SC) 278. 26 13th Amendment to the Irish Constitution, 14th Amendment to the Irish Constitution. 27 12th Amendment to the Irish Constitution (rejected). 119

In 2012, an Irish hospital refused to allow an abortion to protect a sick woman, Savita Halappanavar, who later died as a result, sparking widespread public outrage.28 In 2018 two thirds of Irish voters accepted a referendum which repealed the 8th Amendment, leaving the Oireachtas to legislate on any abortion restrictions.29 Abortion in Ireland is now regulated by the Health (Regulation of Termination of Pregnancy) Act 2018 which allows abortion in the first 12 weeks of pregnancy and allows a variety of health and policy exemptions permitting later terminations.30 Another 2018 poll showed that the Irish population holds more liberal views on abortion in comparison to Americans.31

Dialogue between the two jurisdictions

The history shows that the US Roe v Wade holding sparked the constitutional debate on abortion in Ireland. While early Irish cases on access to contraceptives such as McGee v Attorney General followed the same reasoning that led the US Supreme Court to strike down most bans on abortion, the 8th Amendment enshrined a positive prohibition on abortion into Ireland’s constitution which irrevocably altered the trajectory of the debate in Ireland.

The 8th Amendment restricted many basic rights of pregnant women which extended far beyond merely preventing them from receiving an elective abortion in Ireland. As the constitutional referendums stemming from the X case and the ultimate repeal of the 8th Amendment following the death of Savita Halappanavar have shown, the inflexible nature of the constitutionally codified ‘foetal personhood’ sparked multiple grassroots movements in favour of abortion rights.

In contrast the US jurisprudence maintains a negative requirement which prevents even its most conservative states from entirely banning abortions. This negative requirement has protected the ‘pro-life’ movement in the United States from difficulties that arose in Ireland when abortion was prohibited even in the most extreme circumstances. Without Roe conservative US states that choose to ban abortion will likely mirror the developments in Ireland following its adoption of the 8th Amendment.

28 Kitty Holland, ‘How the Death of Savita Halappanavar Revolutionised Ireland’, Irish Times (28 May 2018) <https://www.irishtimes.com/news/social-affairs/how-the-death-of-savitahalappanavar-revolutionised-ireland-1.3510387>. 29 ‘Referendum Results 1937—2019’ (n 5). 30 Health (Regulation of Termination of Pregnancy) Act 2018 ss 9–12 (Ireland). 31 Alan Cooperman and Neha Sahgal, ‘Being Christian in Western Europe’ [2018] Pew Research Center 154.

Conclusion

Legal developments in the United States have had a profound impact on the abortion debate in Ireland. Specifically, one can draw a direct line from the US holdings in Roe and Griswold to the constitutionalisation of the abortion issue in Ireland which led to the subsequent step by step legalisation which continues in Ireland today.

Despite these reverberations, the discourse on abortion in Ireland is unlikely to emulate the US in the future. Abortion is no longer a constitutional issue in Ireland and as the 2018 referendum results show, the current position is broadly popular.32 In contrast, if the US Supreme Court strikes down Roe, developments in conservative US states eager to ban abortion, may begin to resemble the evolution of abortion law in Ireland.

32 ibid.