Ireland’s constitutional ban on abortion remains unchanged by the proposed legislation. Article 40.3.3° 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.” Abortion is banned in any circumstances beyond those where it is judged that there is a real and substantial risk to the life of the mother, which puts the life of the unborn child equally at risk.
The proposed legislation will, however, provide legal clarity for members of the medical profession, in instances where there is a so-called “real and substantial” risk to the life of the mother and therefore the life of the unborn child as well. Decisions of Ireland’s Supreme Court, as far back as 1992, and the European Court of Human Rights, as recently as 2011, have required successive governments to legislate on this matter. Enda Kenny’s government is the first to do so. If successful, his “Republic of laws” will be one step closer.
James M. Smith is an associate professor in the English Department at Boston College. He is the author of Ireland’s Magdalen Laundries and the Nation’s Architecture of Containment (University of Notre Dame Press, 2007).