Debating reproductive rights in Ireland

Human Rights Quarterly

Volumn 27, Issue 1, 2005, Pages 78-104

  Mullally, Siobhán ^a  

^a UNIVERSITY COLLEGE CORK   (Ireland)

Author keywords

[No Author keywords available]

Indexed keywords

ABORTION; GENDER IDENTITY; GENDER ISSUE; HUMAN RIGHTS; RELIGION;

EASTERN HEMISPHERE; EURASIA; EUROPE; IRELAND; WESTERN EUROPE; WORLD;

EID: 15744381050     PISSN: 02750392     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (170)

1. Programme of Action of the International Conference on Population and Development adopted 18 Oct. 1994, U.N. GAOR, Ch. VII, p 7.2, U.N. Doc. A/CONF. 171/13 (1194) [hereinafter ICPD].
2. Report of the Fourth World Conference on Women, Beijing Declaration and Platform for Action, adopted 17 Oct., U.N. GAOR, 50th Sess., pp 94-96, U.N. Doc. A/CONF.177/20 (1995); Report of the Committee on the Elimination of Discrimination Against Women on its Twentieth Session: General Recommendation 24, U.N. GAOR, 54th Sess., Supp. No. 38, Pt. I, p 23, U.N. Doc. A/54/38/Rev. 1, ch. I (1999).
3. Rebecca J. Cook & Mahmoud F. Fathalla, Advancing Reproductive Rights Beyond Cairo and Beijing, in Women and International Human Rights Law Vol. 3, at 73-90 (Kelly D. Askin & Dorean M. Koenig eds., 1999);
4. Maja Kirilova Eriksson, Abortion and Reproductive Health: Making International Law More Reproductive Rights: Women's Needs, in id. at 71;
5. Rishona Fleisham, The Battle Against Reproductive Rights: The Impact of the Catholic Church on Abortion Law in Both International and Domestic Arenas, 14 Emory Int'l L. Rev. 277 (2000);
6. Doris Elisabeth Buss, Going Global: Feminist Theory, International Law, and Public/Private Divide, in Challenging the Public/Private Divide: Feminism, Law, and Public Policy 360 (Susan B. Boyd ed., 1997);
7. Mary Ann Glendon, Abortion and Divorce in Western Law (1987);
8. Drucilla Cornell, The Imaginary Domain: Abortion, Pornography & Sexual Harassment 31-37 (1995).
9. For a comprehensive discussion of Ireland's abortion laws, see James Kingston et al., Abortion and the Law 52-78 (1997);
10. Nuala Jackson, Family Law: Fertility and Parenthood, in Gender and the Law in Ireland 130 (Alpha Connolly ed., 1993);
11. Irish Council for Civil Liberties (Women's Committee), Submission to the UN Committee on the Elimination of All Forms of Discrimination Against Women (1999), available at http://iccl.ie/women/cedaw/cedaw/ .htm.
12. Report of the Committe on the Elimination of Discrimination Against Women on its Twenty-First Session, U.N. GAOR, 54th Sess., Supp. No. 38, Pt. II, p 180, U.N. Doc. A/54/38/Rev.1 (1999) (concluding observations on Ireland). The Committee has also expressed concern about about the particular hardships experienced by vulnerable groups of women in Ireland. For an asylum-seeking woman, for example, an attempt to leave the state may lead to criminal prosecution. Id. p 185.
13. Concluding Observations of the Human Rights Committee: Ireland, adopted 21 July 2000, U.N. ESCOR, Hum. Rts. Comm. 69th Sess, 1858th mtg., p 18, U.N. Doc CCPR/CO/69/IRL (2000). See also General Comment No. 28, Equality of Rights Between Men and Women, adopted 29 Mar. 2000, U.N. ESCOR, Hum. Rts. Comm. 68th Sess., 1834th mtg., p 11, U.N. Doc CCPR/C/21/Rev.1/Add.10 (2000). The Human Rights Committee has expressed similar concerns in relation to the restrictive abortion laws in Poland. See Concluding Observations of the Human Rights Committee: Poland, adopted 28 July 1999, U.N. ESCOR, Hum. Rts. Comm. 66th Sess., 1779th mtg., U.N. Doc. CCPR/C/79/Add.110 (1999). In particular, the Committee has noted "with concern" the strict laws on abortion "which lead to high numbers of clandestince abortions with attendant risks to life and health of women." Id. p 11.
14. International Covenant on Civil and Political Rights, adopted 16 Dec. 1966. G.A. Res. 2200 (XXI), U.N. GAOR, 21st Sess., Supp. No. 16, U.N. Doc. A/6316 (1966) (entered into force 23 Mar. 1976), 999 U.N.T.S. 171.
15. Convention on the Elimination of All Forms of Discriminating Against Women, adopted 18 Dec. 1979, G.A. Res. 34/180, U.N. GAOR, 34th Sess., Supp. No 46, U.N. Doc. A/34/46 (1980) (entered into force 3 Sept. 1981), 1249 U.N.T.S. 13, reprinted in 19 I.L.M. 33 (1980) [hereinafter Women's Convention]. Although the Women's Convention does not include any reference to abortion, CEDAW has examined the restrictive abortion laws in many states. See Report of the Committee on the Elimination of Discrimination Against Women on its Twenty-First Session, U.N. GAOR, 54th Sess., Supp. No. 38, Pt. II, pp 202-35, U.N. Doc. A/54/38/Rev.1 (1999) (concluding observations on Chile). CEDAW expressed concern about the "inadequate recognition and protection of the reproductive rights of women in Chile." Id p 228. It was especially concerned about the laws prohibiting and punishing any form of abortion, which CEDAW said, affected women's health by increasing maternal mortality and causing further suffering when women are imprisoned for violation the law. The Committee urged the government "to consider review of the laws relating to abortion with a view to their amendment, in particular to provide safe abortion and to permit termination of pregnancy for therapeautic reasons or because of the health, including mental health, of the woman. The Committee also urges the government to revise laws which require health professionals to report women who undergo abortions to law enforcement agencies and which impose criminal penalties on these women." Id. p 229. See also Report of the Committee on the Elimination of Discrimination Against Women on its Seventeeth Session, U.N. GAOR, 52d Sess., Supp. No. 38, Pt. II, pp 273-321, U.N. Doc. A/52/38/Rev.1 (1997) (concluding observations on Argentina). The Committee expressed concern that, "despite economic and social development in Argentina, maternal mortality and morbidity due toe childbirth and abortion remained high." Id. p 304. It recommended that legislation penalizing mothers who had abortions should be reviewd. Id. p 319. In commenting on Slovenia'as initial report under the Convention, the Committee noted "with satisfaction the inclusion of the right to abortion in the Constitution of Slovenia." Report of the Committee on the Elimination of Discrimination Against Women on its Sixteenth Session, U.N. GAOR, 52d Sess., Supp. No. 38, Pt. I, p 81-122, 98, U.N. Doc. A/52/38/Rev.1 (1997) (concluding observations on Slovenia).
16. Convention on the Rights of the Child, adopted 20 Nov. 1989, G.A. Res. 44/25, U.N. GAOR, 44th Sess., Supp. No. 49, U.N. Doc. A/44/49, at 166 (1989) (entered into force 2 Sept. 1990), reprinted in 28 I.L.M. 1448 (1989).
17. See Philip Alston, The Unborn Child and Abortion under the Draft Convention on the Rights of the Child, 12 Hum. Rts. Q. 156 (1990). The ninth preambular paragraph of the CRC refers to the child's right to legal protection before as well as after birth, reiterating the third preambular paragraph to the Declaration on the Rights of the Child. The Working Group on the Convention included an interpretive statement in the travaux preparatories, to the effect the the ninth preambular paragraph did not have any bearing on the definition of the child as a human being in Article 1 of the Convention. It also rejected a draft savings clause providing that nothing in the Convention should affect any provisions more conducive to the rights of the child before as well as after birth. The definition of a child continues to remain controversial. See, e.g., Reservations and Declarations entered by Argentina, Ecuador, Guatemala, the Holy See, available at www.unhchr.ch/html/menu3/b/treaty15_asp.htm.
18. Brian Cowen, Address at the United Nations Special Session of the General Assembly for the Review and Appraisal of the Implementation of the Programme of Action of the International Conference on Population and Development (30 June 1999), available at www.un.org/popin/ unpopcom/32ndsess/gass/state/ireland.pdf.
19. John O'Donoghue, Minister for Justice, Equality and Law Reform, Address to the Special Session of the UN General Assembly, "Women 2000: Gender Equality, Development and Peace for the 21st Century" (6 June 2000), available at www.un.org/womenwatch/daw/folllowup /beijing+5stat/ statments/ireland6.htm.
20. In the build up to the Beijing + 5 review meeting, many feared that conservative forces would try to undermine the Beijing Declaration and Platform of Action. In the final negotiations, however, the coalition of the Holy See and G-77 states disintegrated. Led by Brazil and Peru, a new bloc emerged-know as Some Latin American Countries (SLAC). SLAC came under intense pressure from the Holy See and certain other members of the G-77. Its strengths grew, however. It was joined by the fourteen Caribbean CARICOM countries (thus becoming "SLACC") and in the final negotiations worked closely with India and the bloc of Southern African countries knows as SADC, as well as Cameroon, Ghana, and Kenya. This fragmentation ensured that the Beijing Declaration and Platform of Action were accepted as a floor for further negotiations. Attempts to roll back the achievements of Beijing, the ICPD, and the ICPD + 5 were thwarted. However, little was achieved in the way of progress. Against a background of fragmentation and dissent between states, negotiations were largely focused on containment rather than progress. See generally, Center for Reproductive Rights, Beijing + 5: Assessing Reproductive Rights (Nov 2000), available at www.reproductiverights.org/pub_bp_beijing5.html.
21. See Department of Justice, Equality and law Reform, Report of Proceedings, UN General Assembly Special Session, Women 2000: Gender Equality, Development and Peace for the 21st Century; National Forum for Non-Govermental Organisations (10 May 2000).
22. See Yvonne Scannell, The Constitution and the Role of Women, in De Valera's Constitution and Ours 123-36 (Brian Farrell ed., 1998);
23. Gender and Sexuality in Modern Ireland (Anthony Bradley & Maryann Gialanella Valiulis eds., 1997);
24. Irish Women's Studies Reader (Ailbhe Smyth ed., 1993);
25. Hanna Sheehy-Skeffington, Bean na h-Éireann, in In Their Own Voice: Women and Irish Nationalism 32-34 (Margaret Ward ed., 1995);
26. Carol Coulter, The Hidden Tradition: Feminism, Women and Nationalism in Ireland (1993).
27. Declan Kiberd, Inventing Ireland 9 (1996).
28. Irish Marion Young, Inclusion and Democracy 252 (2002).
29. Noel Browne, Church and State in Modern Ireland, in Ireland's Evolving Constitution 1937-1997, 41, 48 (Tim Murphy & Patrick Twomey eds., 1998).
30. Ruth Fletcher, Post-colonial Fragments: Representations of Abortion in Irish Law and Politics, 28 J. L. & Society 568, 574 (2001).
31. See National Union of Mothers of Ireland, Submission to the Forum on Europe (3 Dec. 2001), available at www.forumoneurope.ie/ index.asp?locID=65&docID=-1;
32. Neart, Beijing + 5: Alternative Report for Ireland (May 2000) available at www.nwci.ie/documents/beijing.doc;
33. Ailbhe Smyth, The "X" Case: Women and Abortion in the Republic of Ireland, 1992, 1 Feminist Legal Stud. 163 (1993);
34. The Abortion Papers, Ireland (Ailbhe Smyth ed., 1992).
35. Constitution of Ireland, 1937 [hereinafter Ir. Const.].
36. See Yeats and Women (Deirdre Toomey ed., 1997). Cathleen Ni Houlihán is one of W.B. Yeats' most popular poems. It is now accepted that it was in fact co-written by his patron, Lady Gregory.
37. See Margaret Ward, Unmanageable Revolutionaries: Women and Irish Nationalism (1983).
38. Until 1922, Ireland was under British rule. Following the war of independence , which occured between 1919 and 1921, the Irish Republica Army, under Michael collins, and the british government entered into the Anglo-Irish Treaty. Pursuant to this treaty, the new nation would be referred to as the "Irish Free State." The nation would remain under the British Commonweath, but could have its own army. See Anglo-Irish Treaty, 6 December 1921. The Irish Free State became the Republic of Ireland in 1937 with the enactment of Bunreacht na hÉirean, the Constitution of Ireland.
39. See generally Ania Loomba, Colonialism/Postcoloniasm: The New Critical Idiom (1998);
40. Ratna Kapur & Brenda Cossman, Subversive Sites: Feminist Engagements with Law in India (1996);
41. Ratna Kapur, A Love Song to Our Mongrel Selves: Hybridity, 8 Sexuality & L. 353 (1999);
42. Valentine M. Moghadam, Patriarchy and the Politics of Gender in Modernising Societies: Iran, Pakistan and Afghanistan, 7 Int'l Sociology 35 (1992).
43. Supra note 24 and accompanying text.
44. See generally Linda Connolly, The Irish Women's Movement: From Revolution To Devolution (2002);
45. Carol Coulter, The Hidden Tradition: Feminism, Women and Nationalism (1993).
46. See generally Fletcher, supra note 19.
47. See Ronan Fanning, Mr De Valera Drafts a Constitution, De Valera's Constitution and Ours, supra note 15, at 33, 43.
48. In Re Howley [1940] I.R. 119. In this case, Justice Gavin Duffy referred to the reformation and subsequent common law jurisprudence as "temporary pollutions" that interrupted and distorted the normal flow of "a Catholic common law."
49. The role of the Roman Catholic hierarchy in Ireland in draffting the 1937 Constitution has been the subject of much historical commentary. See Browne, supra note 18, at 41;
50. Desmond M. Clarke, Church and State: Essays in Political Philosophy (1984);
51. Dermot Keogh, Church, State and Society, in De Valera's Constitution and Ours, supra note 15, at 103;
52. Dermot Keogh, Ireland and the Vatican: The Politics and Diplomacy of Church-State Relations 1922-1960 (1995);
53. Dermot Keogh, The Vatican, The Bishops and Irish Politics 1919-1939 (1986).
54. Dermot Keogh, Church, State and Society, in De Valera's Constitution and Ours, supra note 15, at 109.
55. Ibid. Id.
56. Ibid. Id.
57. See generally Siobhán Mullally, Equality Guarantees in the Irish Constitution: The Myth of Constitutionalism and the Neutral State, in Ireland's Evolving Constitution, supra note 18, at 147;
58. Dolores Dooley, Gendered Citizenship in the Irish Constitution, in id. at 121;
59. Frank Martin, The Family in the Constitution-Principle and Practice, in id. at 79.
60. Ir. Const. art. 41(2)(2).
61. See Letter of Pope John Paul II To Women 6 (29 June 1995), available at Congregation for the Doctrine of the Faith, www.vatican.va/holy_father/john_paul_ii/letters/documents/ hf_jp_ii_let_29061995_women_en.html.
62. Letter to the Bishops of the Catholic Church on the Collaboration of Men and Women in the Church and in the World, by Cardinal Joseph Ratzinger, approved by Pope John Paul II (31 July 2004), available at Congregation for the Doctrine of the Faith, www.vatican.va/roman_curia/ congregations/cfaith/doc_doc_index.htm.
63. Report of the Committee on the Elimination of Discrimination Against Women on its Twenty-First Session, U.N. GAOR, 54th Sess., Supp. No. 38, Pt. II, pp 161-201, U.N. Doc. A/54/38/Rev.1 (1999) (concluding observations on Ireland).
64. Concluding Observations of the Human Rights Committee: Ireland, adopted 21 July 2000, U.N. ESCOR, Hum. Rts. Comm., 69th Sess., 1858th mtg., p 16, U.N. Doc. CCPR/CO/69/IRL (2000).
65. See Alison Healy, New Coalition Formed to Challenge Views of National Women's Council, Ir. Times, 11 May 2000. (Neart comprised more than twenty affiliate groups, including Human Life International, National Union of Mothers Working at Home.)
66. Neart, Beijing supra note 20, at 62. See also Department of Justice, Equality and Law Reform, supra note 14.
67. Department of Justice, Equality and Law Reform, supra note 14.
68. National Women's Council of Ireland, Promises Made Promises Broken: Beijing + 5 Alternative Report for Ireland (2000) available at www.nwci.ie/documents/beijing.doc. The Council is a nongovernmental organization representing more than 300 women's groups in Ireland.
69. See generally Mary Ann Glendon, Rights Talk: The Impoverishment of Political Discourse (1991);
70. Glendon, Abortion and Divorce in Western Law, supra note 3. Much of the Catholic Right discourse in Ireland draws on the work of US Lawyer Mary Ann Glendon.
71. Kajsa Sundstrom, Abortion-A Reproductive Health Issue 3 (1993), quoted in Eriksson, supra 3, at 6.
72. See Center for Reproductive Rights, The Holy See at the United Nations: An Obstacle to Women's Reproductive Health and Rights (2000), available at www.crlp.org/pub_bp_holysee.html;
73. Doris Buss, Racing Populations, Sexing Environments: The Challenges of a Feminist Politics in International Law, 20 Legal Stud. 463 (2000);
74. Joel Richard Paul, Cultural Resistance to Global Governance, 22 Michigan J. Int'l L. 1 (2000).
75. See Report of the Fourth World Conference on Women, Beijing Declaration and Platform for Action, adopted 17 Oct., U.N. GAOR, 50th Sess., at 157, U.N. Doc. A/CONF.177/20 (1995). After the draft resolution was adopted, representatives of the following states made general and interpretative statements or expressed reservations: Peru, Kuwait, Egypt, Philippines, Holy See, Malaysia, Iran (Islamic Republic of), Libyan Arab Jamahiriya, Ecuador, Indonesia, Mauritania, Oman, Malta, Argentina, Brunei, Darussalam, France, Yemen, Sudan, Dominican Republic, Costa Rica, United Arab Emirates, Venezuela, Bahrain, Lebanon, Tunisia, Mali, Benin, Guatemala, India, Algeria, Iraq, Vanuatu, Ethiopia, Morocco, Djibouti, Qatar, Nicaragua, Togo, Liberia, Syrian Arab Republic, Pakistan, Nigeria, Comoros, Bolivia, Colombia, Bangladesh, Honduras, Jordan, Ghana, Central African Republic, Cambodia, Maldives, South Africa, United Republic of Tanzania, Brazil, Panama, El Salvador, Madagascar, Chad, Cameroon, Niger, Gabon, United States of America, and Canada. The observer for Palestine also made a statement.
76. Id. at 159-60. In a statement that reveals a broader agenda, the Holy See criticized the "ambiguous language" of the Declaration and Platform concerning unqualified control over sexuality and fertility, which in its view, could be interpreted as including "societal endorsement of abortion and homosexuality."
77. See Joel Richard Paul, supra note 47, at 7.
78. Id. at 7-8.
79. In 1971, 60 percent of women aged fifteen years and over were engaged full time in "home duties." In 1991, this had fallen to just under 50 percent. In 1970, women accounted for 28 percent of the labor force. In 1991, this had risen to just 32.9 percent. Following the rapid expansion of the Irish economy in the 1990s, this figure has now risen to approximately 46 percent. See generally First Commission on the Status of Women (Ireland), Report to Government (1972); Second Commission on the Status of Women (Ireland), Report to Government (1993);
80. Ethel Crowley, Making a Difference?: Female Employment and Multinationals in the Republic of Ireland, in Women and Irish Society: A Sociological Reader 81 (Anne Byrne & Madeleine Leonard eds., 1997).
81. The Report of the Second Commission on the Status of Women, published in 1993, called for tax individualization to eliminate disincentives for married women seeking to enter into employment. Second Commission on the Status of Women, supra note 53, at 76. Finally, in 1999, in response to increasing labor shortages, the government decided to act, introducing a series of measures including individualization of the income tax system and tax incentives to encourage women to return to paid employment. This challenge to the traditional gendered division of labor met with opposition. As one commentator noted, "old allies re-emerge[d] to criticise women who go to work." Mary Holland, Old Allies Re-Emerge to Criticise Women Who go to Work, Ir. Times, 9 Dec. 1999. See also Dáil Debates 15 Dec. 1999 per Mr John Bruton T.D., available at www.gov.ie /debates-99/15dec99/sect9.htm. Catholic Right groups pointed to the constitutional commitment to recognizing and protecting women's lives within the home. Citing Article 41(2) of the Constitution of Ireland, 1937, they argued that if women should not be, "forced by economic necessity to neglect their duties within the home," economic incentives should not be offered by government to encourage such neglect. Portrayed as an attack on the family, a devaluation of women's work within the home, and possibly unconstitutional, the tax individualization plan was withdrawn, to be resubmitted one year later modified to take into account the criticisms levied against it. The debate has not ended, however. Incentives to encourage greater female participation in the labor force have been given added momentum by European Union membership and Community strategies to promote gender equality. The European Community framework strategy on gender equality (2001-2005), seeks to promote gender equality in economic life and a change in gender roles and stereotypes. Communication from the Commission to the Council, the European Parliament, the Economic and Social Committee and the Committee of the Regions: Towards a Community Framework Strategy on Gender Equality (2001-2005), COM(2000)335. As a strategy, it conflicts directly with the Catholic Right's concern to protect women's roles within the home and Ireland's inherited tradition of gender-differentiated citizenship. These concerns have voiced themselves most recently in opposition to the Treaty of Nice. Neart, Submission to the National Forum on Europe: Opposition to Nice Treaty (1 Dec. 2001), available at www.forumoneurope.ie /index.asp?locID=65&clocID=-1. See generally Siobhan Mullally, Beyond the Limits of the Discrimination Model: Promoting Gender Equality, in Equality in Diversity: The New Equality Directives 295 (Eilis Barry & Cathryn Costello eds., 2003).
82. Article 40(3)(3), inserted following the enactment of the Eighth Amendment to the Constitution Act, No. 8 (7 Oct. 1983), reads: 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.
83. Offences against the Person Act §§ 58, 59 (1861), reprinted in 7 The Statutes 266 (3d ed. 1950). See also Kingston, A. supra note 4, at ch. 3.
84. McGee v. Attorney General [1974] I.R. 284.
85. Roe v. Wade, 410 U.S. 113 (1973).
86. Griswold v. Connecticut, 381 U.S. 479 (1965).
87. See Tom Hesketh, The Second Partitioning of Ireland: The Abortion Referendum of 1983 (1990).
88. See Kingston, A. supra note 4, at 4-6;
89. Ruth Fletcher, supra note 19, at 574-75.
90. See Ruth Fletcher, supra note 19, at 576.
91. One anti-abortion slogan read: "The Abortion Mills of England Grind Irish Babies into Blood that Cries out to Heaven for Vengeance." Id. at 577.
92. See also Emily O'Reilly, Masterminds of the Right (1992).
93. Ir. Const. art. 40(3)(3).
94. See Attorney General v. X [1992] 1 I.R. 1.
95. S.P.U.C. v. Grogan, 3 C.M.L.R. 849 (1991).
96. See also Society for the Protection of Unborn Children v. Coogan [1989] I.R. 734.
97. See Treaty Establishing the European Community, 25 Mar. 1957, 298 U.N.T.S. 11, art. 60 (1957) (entered into force 1 Jan. 1958), reprinted in European Community Law: Selected Documents 4 (George A. Bermann et al. eds., 1993).
98. S.P.U.C., 3 C.M.L.R. 849, pp 30-32 of Advocate General Van Gerven's opinion.
99. Jason Coppel & Aidan O'Neill, The European Court of Justice: Taking Rights Seriously? 29 Common Market L. Rev. 669, 687 (1992).
100. See also Diamuid Rossa Phelan, Right to Life of the Unborn v. Promotion of Trade in Services: The European Court of Justice and the normative shaping of the European Union, 55 Mod. L. Rev. 670 (1992).
101. S.P.U.C., 3 C.M.L.R. 849, pp 20, 21 of the judgment. Coppel & O'Neill, supra note 70, at 687.
102. See generally Diamuid Rossa Phelan, supra note 70.
103. Treaty on European Union and Final Act, 7 Feb. 1992, reprinted in 31 I.L.M. 247 [hereinafter Maastricht Treaty].
104. Protocol No. 17 annexed to the Treaty on the European Union and the Treaties establishing the European Communities. Specifically, it provided: Nothing in the Treaty on European Union, or in the Treaties Establishing the European Communities, or in the Treaties or Acts modifying or supplementing those Treaties, shall affect the application in Ireland of Article 40.3.3 of the Constitution of Ireland.
105. Attorney General v. X [1992] 1 I.R. 1, 7 (per Costello, J.).
106. Fletcher, supra note 19, at 574. See generally. The Abortion Papers, Ireland, supra note 9.
107. Attorney General v. X [1992] 1 I.R. 1, 57-58 (per Finlay, C.J.).
108. Society for the Protection of Unborn Children v. Grogan, [1994] 1 I.R 46 (Ir. H. Ct.).
109. Justice O'Flaherty, dissenting on this point, held that restricting a woman's right to travel would interfere to an unwarranted degree with the individual's freedom of movement, the authority of the family and the protection of the dignity and freedom of the individual. Attorney General v. X [1992] 1 I.R. 1, 88 (per O'Flaherty, J.).
110. Declaration of the High Contracting Parties to the Treaty on the European Union, adopted 1 May 1992, in Guimaràes (Portugal). The Declaration provided, inter alia: That it was and is their intention that the Protocol [No. 17] shall not limit freedom to travel between Member States or, in accordance with conditions which may be laid down, in conformity with Community law, by Irish legislation, to obtain or make available in Ireland information relating to services lawfully available to member states.
111. The Eleventh Amendment to the Constitution Act, No. 11 (116 July 1992) was enacted, amending Article 29 of the Constitution and thereby permitting Ireland's ratification of the Treaty. See Ir. Const. Art 29(4)(4).
112. Open Door Counselling & Dublin Well Woman v. Ireland, App. Nos. 14234/ 88, 14235/88, 15 Eur. H.R. Rep. 244 (1993).
113. See Attorney General v. Open Door Counselling & Dublin Well-Woman Centre [1988] I.R. 593.
114. European Convention for the Protection of Human Rights and Fundamental Freedoms, 4 Nov. 1950, 213 U.N.T.S. 221, Europ. T.S. No. 5 (entered into force 3 Sept. 1953), available at www.echr.coe.int/Eng/ BasicTexts.htm [hereinafter European Convention].
115. Open Door Counselling & Dublin Well Woman v. Ireland, App. Nos. 14234/ 88,14235/88, 15 Eur. H.R. Rep. 244 (1993).
116. Ibid. Id.
117. The European Court of Human Rights has not ruled on whether the Convention requires contracting states to permit a woman to terminate a pregnancy. From the Court's jurisprudence to date, it would seem that contracting states enjoy a very wide margin of appreciation in regulating abortion. However, the former European Commission on Human Rights has stated that placing a higher value on the "unborn life of the fetus" than on the life of a pregnant women would be contrary to the object and purpose of the Convention. X v. United Kingdom, App. No. 8416/79, 3 Eur. H.R. Rep. 408 (1980) (admissibility decision of 13 May 1980). The Commission supported this interpretation of the right to life, as protected under Article 2 of the Convention, by pointing out that most of the contracting states allowed abortions when necessary to save the mother's life. In H v. Norway, Application No. 17004/90 (unreported 19 May 1992), the applicant argued that the Convention must grant the father of a 14 week old foetus a minimum of rights regarding his unborn child, where the health of the mother is not endangered. The Commission found his application to be inadmissible. It concluded that any interpretation of the potential father's right under the Convention, "in connection with an abortion which the mother intends to have performed on her, must first of all take into account her rights, she being the person primarily concerned by the pregnancy and its continuation or termination." Any possible interference with the applicant's rights under the Convention was "justified as being necessary for the protection of the rights of another person."
118. Open Door Counselling & Dublin Well Woman v. Ireland, App. Nos. 14234/ 88, 14235/88, 15 Eur. H.R. Rep. 244, 76 (1993).
119. The proposed Twelth Amendment of the Constitution Act (Referendum on right to life), dealing with the right to life of the unborn, was defeated. The Bill proposed to amend Article 40(3)(3) as follows: It shall be unlawful to terminate the life of an unborn unless such termination is necessary to save the life, as distinct from the health, of the mother where there is an illness or disorder of the mother, giving rise to a real and substantial risk to her life, not being a risk of self-destruction.
120. Thirteenth Amendment of the Constitution Act, No. 13 (23 Dec. 1992) (providing that Article 40(3)(3) be amended so as not to limit freedom of travel); Fourteenth Amendment of the Constitution Act, No. 14 (23 Dec. 1992) (providing that Article 40(3)(3) be amended so as not to limit freedom of information regarding abortion services).
121. Attorney General v. X [1992] 1 I.R. 1, at 92.
122. Ibid. Id.
123. Regulation of Information (Services Outside the State for Termination of Pregnancies) Act, No. 5 (1995).
124. Re Article 26 and the Regulation of Information (Services Outside the State for the Termination of Pregnancies) Bill, 1995 [1995] 1 I.R. 1.
125. Constitution Review Group (Ireland), Report of the Constitution Review Group 257-59 (1996).
126. See Irish Medical Council, A Guide to Ethical Conduct and Behaviour (5th ed. 1998). The Medical Council is a regulatory body established by the Medical Practitioners Act, No. 4 (1978).
127. A. and B. v. Eastern Health Board & C. [1998] 1 I.R. 464 [hereinafter C].
128. Id. at 468
129. Id. at 483 (per Geoghegan, J.).
130. Id. at 482.
131. id A. and B. v. Eastern Health Board & C. [1998] 1 I.R. 464 [hereinafter C].
132. Fianna Fáil is one of the oldest and largest political parties within the Irish state. Further information is available at www.fiannafail.ie. The Progressive Democrats were a minority party in the coalition government. They were formed as a political party in 1985 and currently hold eight seats in the Irish Parliament. Further information is available at www.progressivedemocrats.ie/.
133. Office of the Taoiseach, Green Paper on Abortion (1999), available at www.taoiseach.gov.ie/upload/publications/251.rtf. The Green Paper was prepared by an inter-departmental Working Group, charged with considering the constitutional, legal, medical, moral, social and ethical issues surrounding the question of abortion. A Cabinet Committee, composed of four men and two women oversaw the Group's work. Submissions were invited from interested members of the public.
134. See Catholics for a Free Choice, Submission to the Inter-Departmental Working Group on Abortion, Catholic Options in the Abortion Debate: Reforming Irish Law (Mar. 1998), available at http:// flag.blackened.net/revolt/darg/sub_cont.html;
135. Press Release, Opening Remarks by Catholics for a Free Choice to the All-Party Oireachtas Committee on The Constitution (12 July 2000) available at www.cath4choice.org/new/pressrelease/ 071200DublinAbortionReform.htm
136. See All Party Oireachtas Committee on the Constitution, Fifth Report: Abortion (2000) available at www.taoiseach.gov.ie/ attached_files/upload/publications/1434.pdf Three options commanded support within the Committee, though not majority support. The first was to leave the legal position unchanged and to focus instead on measures to reduce crisis pregnancies. The second was to introduce legislation to give effect to the Supreme Court judgment in the X case. The third was to amend the Constitution so as to protect existing medical practice while at the same time maintaining a prohibition on abortion-in effect rolling back the options opened by the Supreme Court judgment in the X case.
137. Twenty-Fifth Amendment of the Constitution (Protection of Human Life in Pregnancy) Bill, No.48 (2001) [hereinafter Proposed Twenty-Fifth Amendment]. The Bill draws on similar legislation introduced in Poland in 1993, the Family Planning, Protection of the Human Foetus, and Conditions Permitting Pregnancy Termination Act. Prior to 1993, abortion on social grounds was permitted in Poland.
138. See Proposed Twenty-Fifth Amendment, supra note 112, at Second Schedule § 1 (1).
139. Id. Second Schedule § 2(3).
140. Id. Second Schedule § 1(2).
141. Mark Brennock, Taoiseach Rules Out Abortion Legislation Following Defeat, Ir. Times, 8 Mar. 2002, at 1.
142. Ibid. Id.
143. See, e.g., Press Release, S.P.U.C., International Pro-life Leaders Call for a No Vote in Irish Abortion Referendum (28 Feb. 2002), available at www.spuc.org.uk/releases/20020228.htm.
144. Treaty of Nice Amending the Treaty on European Union, the Treaties Establishing the European Communities and Certain Related Acts 2001/C80/ 01, 2001 O.J. (C80/1). The Twenty-First Amendment of the Constitution Act, No. 2 (2001) was defeated in a referendum held on 7 June 2001. A second referendum on the Treaty of Nice was held on 19 October 2002. This time the referendum was carried, with 63 percent voting "Yes."
145. Christian Democrat Party, The Laeken Summitt: Creating an Alternative Vision of the European Union, Submission to the Forum on Europe (19 Dec. 2001), available at www.forumoneurope.ie/uploadedfiles/ documents/christian_dems.doc.
146. See Protocol on Article 40.3.3 of the Constitution of Ireland, Provisional consolidated version of the Protocols annexed to the Treaty establishing a Constitution for Europe and of Annexes I and II, 2003/ 2004 IGC, at 313, available at www.euobserver.com/nice/nice5.html.
147. See Irish Council for Civil Liberties (Women's Committee), The Need for Abortion Law Reform in Ireland: The Case Against the Twenty-Fifth Amendment of the Constitution Bill, 2001 (2002), available at www.iccl.ie/women/abortion /abortion¶per2002.html.
148. Baby O v. Minister for Justice, Equality and Law Reform, Unreported Supreme Court Judgment, [2002] I.R. 169.
149. Id. at 173.
150. Id. at 182.
151. Ibid. Id.
152. Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Ireland, 1998, cited in 37 I.L.M. 751 (1998) (hereinafter Belfast Agreement).
153. See also, Colin Harvey & Stephen Livingstone, Human Rights and the Northern Ireland Peace Process, Eur. Hum. Rts. L. Rev. 162 (1999);
154. Human Rights, Equality, and Democratic Renewal in Northern Ireland (Colin J. Harvey ed., 2001);
155. Colin Harvey, Governing After the Rights Revolution, 27 J.L. & Soc'y 61 (2000).
156. Nineteenth Amendment of the Constitution Act, No. 19 (3 June 1998). The full text of Article 2 of the Constitution of Ireland (as amended) reads: It is the entitlement and birthright of every person born in the island of Ireland, which includes its islands and seas, to be part of the Irish Nation. That is also the entitlement of all persons otherwise qualified in accordance with law to be citizens of Ireland. Furthermore, the Irish nation cherishes its special affinity with people of Irish ancestry living abroad who share its cultural identity and heritage.
157. See L. and O. v. Minister for Justice, Equality and Law Reform, [2003] I.E.S.C. 1, 451 (per Fennelly, J.).
158. Twenty-Seventh Amendment of the Constitution Bill, No. 15 (24 June 2004). The referendum followed a period of heated debates on the rights of migrant families to remain in Ireland on the basis of having an Irish born child. In the L. and O. cases, the Supreme Court held that the right of a citizen child to the company, care and parentage of her of his parents was subject to the common good, namely the state's interest in immigration control and the integrity of the asylum process. L. and O. [2003] I.E.S.C. 1, 148 (per Murray, J.).
159. Irish Nationality and Citizenship Bill, No. 40 (2004), available at www.oireachtas.ie/viewdoc.asp?fn=/documents/bills28/bills/2004 /4004/ document1.htm.
160. Eithne Luibhéid, Globalization and Sexuality: Redrawing Racial and National Boundaries Through Discourses of Childbearing, in Women's Movement: Migrant Women Transforming Ireland 77 (Ronit Lentin and Eithne Luibhéid eds., 2003), available at www.tcd.ie /Sociology/mphil/ dwnl/migrantwomenpapers.PDF.
161. Proposed Citizenship Referendum, Sunday Independent, 14 Mar. 2004, at 6.
162. Id. at 6.
163. See G. Quinn, Reflections on the Legitimacy of Judicial Activism in the Field of Constitutional Law, Dli 29 (1991);
164. Gerry Whyte, Constitutional Adjudication, Ideology and Access to the Courts, in Law and Liberty in Ireland 149 (Anthony Whelan ed., 1993).
165. People v. Shaw [1982] I.R. 1 (per Kenny, J.).
166. Jürgen Habermas, Multiculturalism and the Liberal State, 47 Stan. L. Rev. 849 (1995).
167. See Belfast Agreement, supra note 128. See generally Geoff Gilbert, The Northern Ireland Peace Agreement, Minority Rights and Self-Determination, 47 Int'l Comp. L. Q. 943 (1998);
168. Colin Harvey & Stephen Livingstone, supra note 128.
169. This phrase is adapted from Declan Kiberd, supra note 16.
170. Catholics for a Free Choice, supra note 110.