IN A BID to reform our 76-year-old Constitution, the Irish government recently set up the Constitutional Convention, a body of 100 parliamentarians and members of the public, to review and suggest changes to be made on specific aspects of Bunreacht na hÉireann. Issues addressed so far include the lowering of the voting age, the length of the Irish presidency, and the gendered assumptions implicit and explicit within the text.
Specifically, the Convention was asked to vote on the ‘women in the home’ clause, which stipulates that “the State recognises that by her life within the home, woman gives to the State a support without which the common good cannot be achieved”, and that the State “shall, therefore, endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home.”
Recognising the outmoded gender norms underlying this clause, the Constitutional Convention overwhelmingly voted for it to be altered, thereby reflecting contemporary understandings of women’s roles both within and without the home, while still acknowledging the importance of caring labour as conducted by people more generally. Also, the Convention voted for gender-inclusive language (the Constitution uses the male pronoun extensively), and recommended government action to encourage greater participation by women in public life.
To be sure, all of these proposed changes are to be welcomed, and it is heartening to see that the Convention members wish to see women’s advances made over the decades, reflected in the foundational document of our State to further cement women’s equal status as citizens and rights bearers.
Sadly, one looming omission from the Convention’s laudable focus on gender and women, is the issue of reproductive rights. While the Convention has rightly been criticised for its rather limited agenda, this omission is all the more stark given the current context of ongoing inquiries and the inquest into Savita Halappanavar’s death. The recently completed HSE report into the tragic events unfolding last October in Galway, has pointed to Ireland’s unworkable legal situation as a significant factor in the treatment of Mrs Halappanavar.
Indeed, several maternity hospital chiefs have called for legal clarity to be brought to the issue, and the government has pledged to do so by introducing legislation allowing for abortion in accordance with the X Case – that is, in cases where the woman’s life is at risk (including at risk from suicide).
What has not been addressed, though, is the bearing the Irish Constitution has on all of this, a factor which lies at the root of the legal quagmire we currently find ourselves in. Introduced in 1983 as the 8th Amendment to the Constitution, Article 40.3.3 of the Constitution equates the life of the unborn with that of the mother, and it is this article which is proving detrimental to the lives of women in this country. For although equivalency between lives may be theoretically pleasing to the right-wing ‘moral’ faction responsible for forcing the introduction of the amendment in the first place, the fact is that in real situations one life may have to be prioritised over another.
Given the punitive measures attached to providing or facilitating abortion (enshrined in Irish law elsewhere), it is not surprising that Article 40.3.3 has often effectively meant a deprioritising of women’s lives. Indeed, the HSE report finds this to be the case in Savita Halappanavar’s treatment, which saw an undue emphasis placed upon the foetus rather than upon Savita’s life. In the messy, empirical world we inhabit, it may also not be possible to establish when a woman’s life as opposed to her health is at risk, a fact medical practitioners have pointed out time and time again in their calls for legal clarity.
Ultimately, if the lives of women merit equal protection to men’s, and if our rights to health and bodily integrity are to have meaning in the real world, then the Irish government needs to go beyond X Case legislation by removing Article 40.3.3 from the Constitution. Since we’ve already come some way toward reforming the fundamental tenets of our State, it is incumbent upon us to continue in this vein by removing an article that has proven to be detrimental to women’s lives and wellbeing, and that is 30 years out of step with contemporary gender norms.
Dr. Clara Fischer is a co-ordinator of the Irish Feminist Network and is member of the Abortion Rights Campaign.
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