Reconsidering the Irish Constitution and International Law: Abortion and Fatal Fetal Abnormality

Abstract

In this paper, we demonstrate that it is unclear whether Irish law precludes abortion in cases of fatal fetal abnormality (FFA). Although the UN Human Rights Committee has found that Ireland’s restrictive abortion framework violates numerous provisions of the 1966 International Covenant on Civil and Political Rights (ICCPR), it has not taken a position on whether Irish law prohibits abortions in cases of FFA. Rather, it has focused on whether abortion in such circumstances is accessible in Ireland and directed that Ireland should amend its laws as necessary to ensure compliance with the ICCPR. In the face of this uncertainty, we argue that Irish law can and should be read in line with Ireland’s international law obligations. This novel argument is grounded in an examination of Articles 29.3 and 29.6 of the Irish Constitution, which set out the relationship of Irish law with international law; and the Irish courts’ jurisprudence on these articles. In following this approach, Irish law can be read as not prohibiting abortion in cases of FFA. Ireland can thus comply with its international law obligations, maintain its reputation as a high compliance state, and reduce the likelihood of future complaint brought against it to the Human Rights Committee or other Treaty Monitoring Bodies.