“To what extent should the law reflect a moral vision, even when this involves an interference with the rights of individuals who might disagree with that vision?”

The relationship between the law and morality is one which has been a source of discussion and controversy for a whole host of reasons. It can be argued that although it is fundamentally futile for a particular moral vision to not influence law making, is it just for one’s perception of what is morally right to hinder the rights of others who may not share such moral visions? In a democracy, we the people decide who makes the laws for us – preferably the laws should reflect the moral vision of the people who we choose to represent us. However, due to the complex nature of morality the value system of the people tends to be varied. Thus, the law does not please everybody and as a result the rights of some individuals are hindered due to the contrasting moral vision of others. The purpose of this essay is to explore the way in which abortion as an issue is one which has been greatly affected by adverse moral visions. As a result, the rights of individuals in Ireland who may disagree with that vision have been affected. The Enactment of the 8th Amendment.
The lawfulness of abortion under the constitution of Ireland can be considered as a topic which has sparked much debate between dissimilar views on abortion and bodily autonomy in Ireland. Kingston wrote that before the insertion of the eight amendment into the Irish constitution in 1983, the constitution didn’t contain any specific provision on the topic of abortion. Article 40.3 affirmed that the state guarantees to respect its citizens, and to ultimately “protect as best it may from unjust attack”. Pre 1983, it was unclear to many people as to what exactly defined the word “citizen”. The question on whether an unborn foetus was deemed as a citizen in the moral vision of the Irish constitution was never called upon any court to determine. Howbeit, via obiter dictum in the Supreme Court, the general moral vision of the law was that abortion was in fact restricted, and privacy rights in the constitution did not universally permit abortion. Irish constitution’s portrayal of privacy and what they considered as a “citizen” can be considered as unclear, and thus it led to confusion in the determination of cases regarding the moral perception of such issues. McGee v Attorney General. McGee v Attorney General can be considered as a case which played a pivotal role in the development of the court’s moral vision and recognition of marital privacy under Article 40.3 of the constitution as an unenumerated right. McGee came into conflict with the law as she ordered contraceptives from England on the grounds that if she were to fall pregnant again, she would put her life in danger. However, the packet was seized and confiscated by the Customs authorities. Indeed, this case sparked discussion regarding the law’s moral vision of what marital privacy consists of. McGee indefinitely felt as if the moral vision of the law was interfering with her own personal rights as she brought an action in the high court in which she claimed that s.17 of the Act of 1935 was conflicting with the 1937 constitution of Ireland and had not been advanced in force by Article 50 of that constitution. McGee v Attorney General certainly provoked a great deal of debates; which highlighted different moral interpretations of the law itself. O’Keefe P himself dismissed the claim that the “freedom of conscience” is a freedom to choose one’s own religion and act in accordance to its rules of behaviour, and that it is not a freedom for an individual to act in furtherance of his private welfare within the limits set by his own conscience. On the other hand, by referring to Article 40.3, Walsh J claimed that McGee’s state of health was indeed important, “a conception which is likely to put her life in jeopardy may be avoided”. Arguably this case explores the various ways in which marital privacy could be explored; Article 40.3 as an unenumerated personal right, and Article 41 as one of the rights of the constitutional family. The stark issue of the rights of the mother and the rights of the unborn foetus began to be explored in much further depth. This would suggest that the issue of various moral visions regarding abortion were affecting the law and thus the entry into force of the eight amendment developed. Arguably the interpretation of Article 40.3 prior to the 1983 constitution varied greatly and inevitably led to many discussions surrounding the moral vision of the country as a whole regarding abortion. In both of the cases G v. An Bord Uchtála and Norris v. Attorney General the issue of abortion as a moral concept is reiterated. Such discussions on the topic of abortion and the insertion of the Eight Amendment into the constitution ultimately led to an interference with one’s choice to obtain an abortion in Ireland. In G v. An Bord Uchtála, Walsh J professes his view on the topic of abortion. He claims that the right to one’s life exists both before and after birth. He proposed the idea that living foetuses should have equally the same rights as living humans. Walsh J states that the foetus has a right to exist irrespective of the marital status of his/her parents. This suggests that perhaps Walsh J’s moral judgement was that the reference to a “citizen” in Article 40.3 of the Constitution concerns both living people and foetuses too. Walsh J’s view on abortion had ultimately stimulated further discussion regarding this issue in Norris v. Attorney General. Although this case does not necessarily deal with the same subject as the aforementioned cases, McCarthy J still felt that it was absolutely necessary to reiterate Walsh J’s moral judgement on Article 40.3. He did find that his case made it necessary for him to expressing his views on the “killing of an unborn child”.
The development of a moral vision against abortion into the law.
The Pro-Life Amendment Campaign can be considered as an example of an event which influenced the law to reflect a specific moral vision regards to abortion and ultimately hindered the rights of individuals who disagreed with their particular view on this issue. The anti-abortion activists who were members of “PLAC” endeavoured to prevent the possibility of the Irish legal system judicially creating or allowing a right and access to abortion like the United States courts had done in Roe v.Wade.. Despite the obiter dictum of the previous cases mentioned in this essay, “PLAC” intended to ensure that their moral vision was incorporated into the law by prompting the Oireachtas to pass the 8th Amendment in the Constitutional Bill in 1983. By September 7th, by means of a vote the 8th Amendment was passed; constituting Article 40.3.3°. Although this insertion of the 8th Amendment into the constitution can be deemed as morally pleasing to the pro-life campaigners, it must be noted that as a result of this constitutional change, many pro-choice individuals’ rights were affected greatly. Following the insertion of the 8th Amendment into our constitution; abortion was de facto criminalised in Ireland. It can be argued that as a result of the insertion of the 8th Amendment into our constitution; every woman in Ireland’s individual right to privacy and bodily autonomy was interfered with, whether they agreed with the vision or not. However, on the other hand it can be argued that the state now officially acknowledges the right to the life of the unborn. Attorney General v. X and Others. Attorney General v. X and Others is a case which can be viewed as one which clearly displays the effects on the rights of people who do not necessarily agree with the moral vision which is reflected by the law. X fell pregnant at aged 14 against her own will as a result of rape by an older man. In accordance with the plaintiff and her parents’ moral consciences they made the decision to obtain an abortion in England. However, the Attorney General had obtained an interim in injunction which restrained X from having an abortion due to Article 40.3.3°. This is arguably a case which deals with the moral vision of the law interfering with the rights of individuals – X claimed to be “naturally..greatly distraught and upset” and was suicidal due to her unwanted pregnancy. However, due to the new laws set down by the 8th Amendment, Costello J claimed that the Attorney General was obliged and had a constitutional duty to protect the life of the unborn. The issue of the law versus morality can be seen in the discussions of this case as Costello J determines that the life of the unborn should take authority over the mental state of the mother – a view which clashes with that of many medics and the World Health Organisation. However, in this case; John Rogers took a different approach and refuted Costello’s judgements – declaring that X actually had a constitutional right to have an abortion. He declared that the Oireachtas had not enacted any legislation pursuant to the 8th Amendment (Which set standards out whereby the court could make their own decisions regarding the conflict between the right to live of the mother, and the foetus’s right to live. Rogers claimed that Article 40.3.3°. could not prevent a woman from having an abortion if such a situation occurred. Lastly, he stated that through a matter of probability, common law stated that if the continuation of a pregnancy posed a great risk on the life of the mother, she was entitled to an abortion. This case portrays the way in which the moral vision which the law reflects may have the power to interfere with the rights of individuals who may not agree with this vision. Costello J agrees with the moral vision reflected by Article 40.3.3°, and thus his arguments are in favour of the way in which the 8th amendment was set. However, through the situation that X found herself in, as an observer it is clear that her moral vision on what the right thing to do in that situation wasn’t in compliance with the law set down.
Conclusion
As it is fundamentally impossible for the law to be completely objective without any influence from a moral vision; to a certain extent the law should reflect the moral vision of the majority of the people. However, from exploring the topic of abortion and the law it is evident that the moral vision exerted by the law sometimes does not agree with the moral visions of everybody. As a result of this, certain individuals’ rights are interfered with greatly. In the case of abortion; the enactment of the Eight Amendment and the subsequent development of the court’s interpretation of this area was certainly in favour of the pro-life campaigners – as the viewpoint of the Irish courts is currently in accordance with their moral vision. On the contrary, pro-choice campaigners such as X and her family in Attorney General v. X and Others consider abortion as a right, and due to the moral visions of the opposing side, their desired right is interfered with greatly. The topic of abortion and morality has been a constant struggle in the Irish courts system, and still is today with the controversy regarding the death of Savita Halappanavar in 2012 and subsequent “Repeal the 8th” campaigns.

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[ 1 ]. Kingston and Whelan, “Abortion and the Law” (Round Hall Sweet & Maxwell 1997) 11
[ 2 ]. [1974] I.R. 28
[ 3 ]. See (2)
[ 4 ]. McGee v Attorney General (1974) I.R.284
[ 5 ]. (1980) I.R. 32.
[ 6 ]. (1984) I.R 36.
[ 7 ]. See (6)
[ 8 ]. 410 U.S. 113 (1973).
[ 9 ]. See (1)
[ 10 ]. (1992) 1 I.R. 1.
[ 11 ]. See (1)
[ 12 ]. See (10)
[ 13 ]. Van Look, P, & Cottingham, J 2013, 'The World Health Organization's Safe Abortion Guidance Document', American Journal Of Public Health, 103, 4, pp. 593-596
[ 14 ]. See (1)