Abortion and Ireland’s Supreme Court


14 November 2008

Ireland declared its independence from English rule in 1922 when the sovereign state first crafted its constitution. The 1922 and the latter 1937constitution outlined Ireland”Ÿs governmental structure that combined British common law, indigenous Irish norms, and borrowed American models. In this paper, I will first examine the historical creation surrounding Ireland”Ÿs current legal system, and then analyze the inherent autonomy and power of Ireland”Ÿs High and Supreme Courts. This analysis will include the structural aspects of the High and Supreme Courts and how it contributes to the court”Ÿs political influence. Second, this paper will examine the possible policy making powers through judicial review the High and Supreme Courts have in Ireland”Ÿs democratic government. In this section of the paper, I will evaluate how this power shared by both the High and Supreme Courts allows the judicial branch to interpret the constitution and deem laws unconstitutional thereby acting as a judicial lawmaker. Finally, I will assess the impact of the Supreme Court in Ireland”Ÿs deeply debated social topic of abortion. In this section, I will argue that the Court”Ÿs authority goes beyond interpreting the Constitution, and into extra-constitutional policymaking.

Ireland”Ÿs laws, from the 12th century to the early 20th, developed under English rule. Before colonial rule, Ireland utilized its own unique method of lawmaking and jurisprudence. The earliest record of law dates from 600 AD. This form of adjudication, known as Brehon, stemmed from the word Brithem, meaning jurist (Sinder: 19). The traditional role of the Brehons was more as mediators than judges. The Brehons derived their legitimacy and power from the Druidic tradition and the ancient laws passed down through that lineage. There were no enforcing mechanisms and each Brehon held his or her own legal autonomy. This native law coexisted with the English common law from the 12th to the 17th centuries.

The coexistence of these two legal methodologies is due to the incomplete English rule of Ireland. England did not have complete control of Ireland, nor was the common law applicable to the Irish people (Sinder: 37). In the early 17th century, England finally claimed complete control of Ireland, subsequently applying all English law to all within Ireland”Ÿs borders. For the next 400 years, the Irish people lived under England”Ÿs rule. This changed abruptly in the War of Independence that culminated in 1922 creation of the Irish Free State and its first constitution.

The 1922 constitution espoused the separation of powers doctrine borrowed from America”Ÿs governmental model. It established the legislative, executive, and judicial branches. The Constitution specifically provides the judicial branch as independent, ”All judges shall be independent in the exercise of their functions, and subject only to the Constitution and the law” (Irish 1922 Constitution, Article 69). The 1922 constitution created the Supreme, High, and District Courts, in articles 64 through 69. There is no explicit enumeration of jurisdiction or powers granted to the judicial branch in 1922, these powers were laid out in the 1924 Courts of Justice Act. This act explicitly introduced the High, Supreme, District, and Circuit courts into the Irish Free State”Ÿs political system.

A special circumstance found in the 1922 Constitution”Ÿs creation is the approval requirement needed by the English government. Thus, many aspects of the 1922 Constitution did not ultimately fit into the Irish Free State”Ÿs ideals of sovereignty. Another facet of the constitution is the codification of common laws into the new constitution. Not surprisingly, the years following 1922 found many amendments to the Constitution, eventually evolving into a re-creation of the Irish Free State”Ÿs constitution (Courts Service). The new constitution drafted in 1937 reflected the 1922 constitution, with all their prior amendments, the 1924 Courts of Justice Act, and renamed the sovereign state Ireland. The 1937 Constitution, and the latter 1961 Courts Establishment and Constitution Act, enumerate all powers of the judiciary that is in effect today.

Now that we have traced the historical influences of the Irish law, we will now look into the composition of the High and Supreme Courts. In both courts, appointments are made by the president (Irish Constitution 1937, Article 35.1) following parliament”Ÿs advice, which includes the list of possible appointments presented to the President (Irish Constitution 1937, Article 13.9). The conjunction of these two provisions creates an effective check on the executive”Ÿs power of judicial appointing. This is an important factor of judicial legitimacy due to the inability to stack the judiciary with presidential or senate cronies. However, John Kelly argues in his book, Fundamental Rights in the Irish Law and Constitution, ”appointments to the bench are mostly confined to prominent government supports among the legal profession” (Kelly: 192). Furthermore, the qualifications of an appointee solidify the practical legal requirements needed by a judge. ”No person shall be appointed a judge of the High Court or of the Supreme Court who is not at the date of his appointment a practising barrister of twelve years’ standing”, or was a judge in one of the international courts to which Ireland is a signatory (Courts and Court Officers Act, 2002 Part 2 Section 4). This reiterates the necessary experience needed to sit on the High or Supreme Courts, thereby further legitimizing the court as a well trained judiciary. The number of judges on the High and Supreme Courts differ substantially and is decided by legislation. The High Court has jurisdiction in all civil and criminal cases; therefore, it must have a large judicial makeup. Currently, there are thirty-two ordinary judges on the Court, with the president of the circuit court and the Chief Judge being additional judges, totaling thirty-four judges on the High Court (Citizens Information Board). The Supreme Court has seven ordinary judges, not including the Chief Judge, putting the current total to eight judges (Citizens Information Board).

Once appointed, the High or Supreme Court judge may sit on the bench until the age of 70 (Courts and Court Officers Act, 1995 Part 47 Section 1). The constitution also provides that the salary of the judge shall not be decreased while in office (Irish Constitution 1937, Article 35.5). Moreover, judges can only be removed by a resolution passed by both the Senate and the House of Representatives (Irish Constitution 1937, Article 35.4.1). These three provisions empower the High and Supreme Courts by It allowing for a separation from the political faction”Ÿs influence. Without needing to be reelected, or worrying about a salary reduction, or the unlikely probability of being impeached, the judge can make unpopular decisions. Kelly notes, ”in spite of the political basis of judicial appointments…Irish judges have in general not shown themselves subservient to the wishes of the government which appointed them (Kelly, 193). Why this matters so much is because the constitution grants both branches the power of judicial review. The constitution is the highest law in the land, and it is the position of the High and Supreme Courts to interpret and protect the constitution (Irish Constitution 1937, Article 15.4).

Basil Chubb states in his book The Politics of the Irish Constitution, that the High and Supreme Courts have the power to, ”invalidate on constitutional grounds any act of any government agency — legislative, executive, administrative, police, or judicial”, and that these powers are derived from the constitution or inferred by the courts themselves (Chubb: 60). The significant powers of judicial review originate in jurisdiction. The High Court and the Supreme Court are the only courts which can hear cases involving the constitution. The constitution declares, ”[t]he jurisdiction of the High Court shall extend to the question of the validity of any law having regard to the provisions of this Constitution” (Irish Constitution 1937, Article 34.3.2). The High Court has original jurisdiction in all cases brought to the courts in Ireland -civil or criminal (Irish Constitution 1937, Article 34.3.1). This provides access to all of Ireland”Ÿs citizens by granting them the opportunity to bring constitutional questions to the court by process of concrete review. This is significant because individuals can bring claims challenging the constitutionality of provisions, regulations, and legislation. The Supreme Court is the court of final appeals (Irish Constitution 1937, Article 34.4.1). Therefore, they can review the decisions of the High Court through an extended concrete review procedure (Irish Constitution 1937, Article 34.4.3).

The Supreme Court also has abstract review regarding constitutional questions. Once a bill has reached the President from the Senate, the President can refer this legislation to the Supreme Court. The Supreme Court can interpret the law and find if it is repugnant to the constitution. If so, the president cannot sign it into law. If not, it will be passed and the law”Ÿs constitutionality can never be reviewed again (Irish Constitution 1937, Article”Ÿs 26.1.1, 26.1.3, 26.3.1, & 26.3.3). The Supreme Court also has the power to rule and deem the President incapacitated and thus initiate the impeachment process (Irish Constitution 1937, Article 12.3.1). When the Supreme Court interprets constitutional challenges, whether they are from the president or through appellate jurisdiction, the Court must be unified in its decision. Simply put, there can be no dissents or concurring opinions in the published statement. If there are disagreements between the judges, they will never be disclosed (Irish Constitution 1937, Article 34.4.5 & 26.2.2). This legitimates the Supreme Court”Ÿs decisions by binding the ruling in one united opinion.

The power to interpret the constitution and to review laws makes the judiciary an influential branch of government. With both concrete and abstract review, all individuals in Ireland can bring cases of constitutionality. The constitution of Ireland cannot be amended or repealed easily. It requires the Houses of Representatives, Senate and a majority of voters per referendum to pass (Chub: 1). However, the courts in one decision can alter the meaning of a law and create implicit rights they find in the constitution. This significant power can be controversial, especially in hotly debated social issues such as abortion.

Ireland as a nation is majority Catholic. The preamble of the 1937 Constitution reads, ”In the Name of the Most Holy Trinity, from Whom is all authority and to Whom, as our final end, all actions both of men and States must be referred…Humbly acknowledging all our obligations to our Divine Lord, Jesus Christ, Who sustained our fathers through centuries of trial” (Irish Constitution 1937, Preamble). The moral and spiritual obligations of Ireland emerged from the Catholicism. In the question of abortion, the Catholic Church itself demands excommunication to any woman who has had the procedure (Coopens). Besides the loss of spiritual communion, Ireland”Ÿs current criminal code deems abortion a felony with a lifetime sentence, while assisting in an abortion is a misdemeanor (The Offenses Against the Person Act of 1861, Article 58 & 59). In general, the nation has a strong Catholic religiosity and an inherent societal norm and case law that are against abortion.

Ireland”Ÿs constitutions never explicitly stated any position on abortion before 1983. Whether this was because women and doctors never took part in abortions, or the government felt it not necessary is a topic for another paper. What is important here is the successful referendum sponsored by pro-life organizations that became the eighth amendment to the constitution. Placed within the rights provision section of the 1937 Constitution, this amendment affirms, ”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” (Irish Constitution 1937, Article 40.3.3). This explicit rights provision is exactly what the Pro Life groups wanted. It gives constitutional protection to the fetus, guaranteeing the right of life to the unborn. Alpha Connelly states in her book Gender and the Law in Ireland, ”this amendment has since been the subject of litigation involving not only the issue of entitlement to termination of pregnancy but also questions of access to information about abortion services and the right to travel to avail of abortion services in another country” (Connell:11).

In 1992, the Irish courts would have to rule on the lawfulness of abortion and the eighth amendment in the case Attorney General v. X. This case is predicated by the rape of a fourteen-year-old young woman by one of her classmate”Ÿs father, a forty one year old man. She became pregnant and wanted an abortion. Because all abortion was illegal in Ireland, it had been common practice to travel to another country to receive the procedure. The Irish Family Planning Association provides statistics on their website, ”Between January 1980 and December 2004, at least 117,673 women travelled from Ireland for abortion services in Britain. There are no statistics to account for the number of women who travel to other countries for abortion services” (IFPA). When the young woman, who came to be known as X, traveled with her parents to Britain for an abortion, the attorney general filed an injunction to stop the procedure. Instead of breaking the law, the family came back to Ireland to fight this in court. The whole while, the child was suicidal and did not want anything to do with the fetus inside her. Her lawyers argued the suicidal tendencies of X constituted a real harm to herself, and would commit suicide if she did not get the abortion.

The High Court ruled with the attorney general by granting a permanent injunction that would force the child to have her baby. The Supreme Court heard the case on appeal and overturned the High Court”Ÿs decision. This is where we see the power and political impact the court has in Irish politics. The Supreme Court reasoned, using the proportionality test, the life of the mother outweighed that of the fetus. The judges stated, ”if it is established as a matter of probability that there is a real and substantial risk to the life, as distinct from the health, of the mother, which can only be avoided by termination of her pregnancy, such termination is permissible, having regard to the true interpretation of Article 40.3.3″ (Attorney General v. X). This decision legalized abortion in Ireland in the event that is a substantial risk to the mother”Ÿs life. This right came only by a Supreme Court pronouncement. There was no democratic process, and it stood in direct opposition to the intent of the eighth amendment. There was an attempted referendum for what would have been the twelfth amendment, which would have overturned the Supreme Courts decision. This referendum failed because popular opinion, in this case, was in overwhelming favor of the young young woman who was raped.

Five years later, another controversial abortion case came before the courts, The C Case. this case is predicated by the following facts. C was raped by a family friend at thirteen and became pregnant. She was one of twelve kids in a travellers family which lead a nomadic lifestyle. Due to the squalid living conditions and the lack of support and attention from her parents, C was placed in the care of the Eastern Health Board (EHB). C was suicidal and a danger to herself. Therefore, she met the X case test and was legally allowed to get an abortion. The EHB brought her case to the District Court in an attempt to bring custody back to the parents so she could travel to Britain and obtain an abortion. The day before the court hearing, the parents changed their minds and did not want their child to have an abortion.

The District court ruled that the child would stay in the custody of EHB. The court also ruled her abortion would continue and the EHB would organize and fund the entire process from paperwork to abortion. The parents with the financial support of pro-life organizations, appealed to the High Court. The High Court affirmed the ruling of the District Court. It reasoned the state had a vested interest in the health of those in its care. It also overruled the wishes of the parents. Professor Amy Buckley states, ”it is not obvious from the text of the Constitution that such a finding necessarily deprives parents of every right concerning the upbringing of their children” (Buckley: 303). Furthermore, Buckley argues that, ”The C case implies that any pregnant woman (including women whose pregnancies are the result of consensual sex) who is sufficiently suicidal such that there is a “real and substantial” risk to her life may have an abortion. Depending upon how medical necessity is defined under the relevant health care regulations, such a woman may qualify for a state-funded abortion” (Buckley: 305).

The C case not only affirmed the X test, but also provided the state could fund an abortion if necessary. Once again, the court declared a rule without any democratic process. If proposed legislation mirrored the High Court”Ÿs opinion, both the legislators and the electorate would contest it. Here, the Court declared policy, thus an action of judicial lawmaking.

In this paper, I have argued that the courts can and do influence policy and effectively legislate from the bench. The constitutional provisions that create the court”Ÿs structure insulate the judges from external influences and pressures. The process of appointment, salary protection, near life tenure with little threat of impeachment, embolden the judges to broaden their juridical powers. The constitution is the highest law in the land and the judges have the sole responsibility of interpreting it. The judicial structure provides insulation allowing judges to make the unpopular decisions to uphold constitutionality, especially concerning abortion.

The eighth amendment was meant to make abortion explicitly illegal. Before its creation, the Irish constitution had an arguably implicit protection for the fetus. The amendment has a built-in proportionality test. Alpha Connelly explains, ”the right to life of the unborn, as guaranteed by the Constitution, is not absolute. It is limited by “žthe equal right to life of the mother” (Connelly: 11). Thus, the judges created abortion law by interpreting the constitution in this way. The ruling and subsequent policy may be correct, but it is controversial and evidence of the courts power in the government. Professor Buckley argues that the courts strength in this matter is due to the weakness of the legislators: ”due in large part to the failure of the government to legislate on the highly sensitive issue of abortion, judges have increasingly ignored the mandates of Catholic natural law in favor of outcomes which support the liberalizing trend in Irish political theory and practice” (Buckley: 275). Like the other branches, the judiciary applies their power to specific policy interests as shown in the abortion cases. First, the Courts find a constitutional right to an abortion if there is substantial harm to the mother. Next, they found a constitutional right that the state can assist in all levels the procurement of an abortion if there is substantial harm to the mother. Since the X case ruling, there has been successful constitutional amendments to allow travel and information for receiving an abortion (Irish Constitution 1937, amendment 13 and 14). Clearly, the judges play a prominent role in constitutional politics, a role that is outside of usual law and policymaking procedures.