Most countries have written constitutions, which usually provide human rights guarantees. In many such countries, issues like abortion generate deep disagreement about rights, and are frequently ‘constitutionalised’, i.e they become issues of constitutional law. (For a discussion of how this has played out in Ireland, see Fiona de Londras, Constitutionalizing Fetal Rights: A Salutary Tale from Ireland.)
Activists and politicians often try to constitutionalise issues on the assumption that it will place the rights in question beyond politics. This is a fallacy, especially where rights are subject to deep and sustained disagreement. The abortion saga in the US and Ireland is a good example of this fallacy.
What does Roe v Wade have to do with this?
In the US, a constitutional right to choice has existed since the 1973 Supreme Court decision of Roe v Wade. By extending a constitutional right to privacy to choice surrounding abortion, the decision prevents bans on abortion prior to foetal viability. Challenges to Roe v Wade have, though, maintained traction in a way that few other issues have.
How has Roe v Wade been challenged?
For decades, numerous state governments have attempted to undermine or overturn Roe v Wade by passing laws restricting access to abortion, instead of banning it outright. Court challenges to such laws have occasionally raised the prospect of Roe v Wade being modified, or even overturned.
Central to this story is the 1992 decision of Planned Parenthood v Casey, which modified the decision in Roe v Wade by holding that states may place restrictions on access to abortions (prior to foetal viability), but may not place an ‘undue burden’ on patients seeking them.
As the Supreme Court’s composition has changed, the Planned Parenthood v Casey ruling has become a vehicle for attempts to undermine Roe v Wade. The tactic in these attempts has been for a state to pass measures restricting access to abortion, with the hope that subsequent constitutional challenges result in the measures being deemed to not place an undue burden on patients seeking abortions.
The most important recent attempt occurred in 2016, in the case of Whole Woman’s Health v Hellerstedt. This case concerned Texan laws which placed onerous restrictions on the operation of abortion clinics, in the name of protecting women’s health. Seen as making the provision of abortion services largely unfeasible, it was one of the most far-reaching restrictions placed on US abortion providers.
The Supreme Court held that HB2 placed an ‘undue burden’ on patients seeking abortions. Had the Supreme Court found that HB2 did not create an undue burden, Roe v Wade would have become mainly theoretical in effect, as state legislatures seeking to prohibit abortion could do so by less explicit means than formally banning it.
How is Roe v Wade in jeopardy now?
Attempts to undermine or overturn Roe v Wade have escalated during the Trump administration. This is due to the emerging conservative majority on the Supreme Court, following Trump’s appointment of Justice Neil Gorsuch and Justice Brett Kavanaugh. Recent attempts include:
- Regulations in states like Indiana and Louisiana which make the operation of abortion clinics practically impossible, similar to Whole Woman’s Health v Hellerstedt; and
- More direct attacks, such as:
- Bans on abortion after six weeks of pregnancy have been passed in Kentucky, Ohio, Mississippi and Georgia, and after eight weeks in Missouri; and
- Alabama legislation which effectively bans all abortions.
Legal challenges have been brought against all these measures, and the Supreme Court is due to hear a challenge to the Louisiana measures early this year. With Gorsuch and Kavanaugh on the court, there is therefore a real possibility of the Supreme Court overturning Roe v Wade in its current term, or at least strip it of practical effect.
How does this fit into the bigger picture?
Supporters of Roe v Wade can undoubtedly celebrate its success so far at striking down and preventing outright bans on abortion. The perpetual vulnerability of Roe’s precedent does, however, highlight the failure of constitutional law to completely insulate a putative right from sustained political disagreement.
The same phenomenon, albeit in reverse, can be seen in Ireland’s experience with abortion and constitutional law.
What was Ireland’s Eighth Amendment and why is it relevant?
The Eighth Amendment to Ireland’s Constitution conferred a right to life on what it called the ‘unborn’. Passed with overwhelming support in 1983, its purpose was to use constitutional rights to prevent the legalisation of abortion, whether by legislation or an equivalent Irish case to Roe v Wade.
Public opinion on this issue changed radically over the following 35 years. In May 2018, a referendum on repeal of the Eighth Amendment passed with 66.4% support.
Key to this development was the growth of social liberalism in Ireland. So too were the practical consequences of the Eighth Amendment, and its requirement that abortion could only be legislated for as a means of preventing maternal deaths. This created a complex legal framework for doctors, and numerous tragedies were attributed to it by some, including the death of Savita Halappanavar.
Controversy arising from cases like this, and the lack of exceptions for rape and fatal foetal abnormalities, were catalysts for the movement to repeal the Eighth Amendment.
How does this compare with Roe v Wade?
Mirroring the American experience with Roe v Wade, the Eighth Amendment was successful in preventing legalisation of abortion in Ireland for 35 years, but was unsuccessful in putting the right it contained beyond political contestation.
What is the wider relevance of these examples?
With abortion, the US and Ireland have both seen constitutional law fail to place the right in question beyond politics, because in each case the rights were constitutionalised without a broader societal shift in consciousness and power relations. This point is also highlighted by both countries’ experiences with more settled rights issues.
In the US, the right to sexual privacy which Roe expanded was first grounded in the right to contraception (Griswold v Connecticut), which came alongside the sexual revolution of the 1960s. In Ireland, the right to privacy in family planning and contraception was recognised in McGee v Attorney General, but only gradually legislated for as public attitudes changed. Without growing support, McGee could have had a similarly precarious legacy to Roe v Wade.
Another example of this phenomenon in both countries is the striking down of laws criminalising gay sex. This occurred in the US in Lawrence v Texas (2003). The same laws were repealed in Ireland in 1993 following ECHR litigation, but more importantly, shifting social attitudes. In each country, it is impossible to imagine reversal of these changes, due to a sea change in attitudes to the LGBTI+ community, rather than because of constitutional law.
What’s the Bottom Line?
Irish and American experiences show that while constitutionalising rights has tangible effects by affording them greater legal protection, rights only become truly guaranteed when attitudes and power shifts make them politically irreversible.
This is worth bearing in mind by activists, who should better recognise the limits of constitutional law, and the importance of the political context that constitutional law operates in. * Anthony Kennelly is a solicitor based in Dublin. Anthony holds law degrees from the University of Limerick and the London School of Economics, including a Master of Laws (LLM) in Public Law. His LLM dissertation outlined reasons for caution in including certain rights guarantees in constitutions.