“The Work of Some Irresponsible Women”: Jurors, Ghosts, and Embracery in the Irish Free State (original) (raw)
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6 West, above n 2 ('progressive constitutionalism') 651. Although West is speaking here in the US context, this framing applies well to Fletcher J's engagement with the Irish Constitution. views law as an open set of possibilities, and thus a vehicle for change, growth, and authenticity, rather than the static product of an unambiguous past historical process, and thus a vehicle for obedience. 7 In her re-visioning of the decision, Fletcher J harnesses the disruptive potential of the Constitution to address the power imbalances perpetuated by Article 40.3.3. Contrasting her judgment to the original 'expose[s] the contingency and biases of existing decisions and disrupt[s] the unique authority of the courts and legal decisionmaking'. 8 In my commentary I bring together the work of Fletcher J, the feminist judge, and Ruth Fletcher, the feminist academic, to critique the existence and impact of 40.3.3. Reading the judgment in light of Fletcher's academic work merges aspects of critique and law reform which are central to the feminist judging methodology. The Emergence of Article 40.3.3 In order to understand the decision in Attorney General v X it is necessary to consider the historical and jurisprudential context within which the case arose. At that time abortion in Ireland was regulated within a web of Constitutional, legislative, and common law provisions originating with the Offences Against the Person Act 1861 (OAPA), sections 58 and 59, which prohibit procuring or attempting to procure a miscarriage. 9 Sections 58 and 59 of the OAPA were reaffirmed in the Health (Family Planning) Act 1979. 10 In England, the OAPA was interpreted to allow for an exception to the general prohibition when the life or health (physical or mental) of the pregnant woman were likely to be severely impacted. 11 However, it is clear that even prior to the insertion of 40.3.3 into the Irish Constitution, such an interpretation was unlikely to be permissible in Ireland. 12 Evidence for this proposition can be traced through the statements of Kenny J in Ryan v Attorney General 13 to its clearest exposition in the judgment of Walsh J in G v An Bord Uchtála, when he held that a child: has the right to life itself and the right to be guarded against all threats directed to its existence whether before or after birth The right to life necessarily implies the right to be born… 14 Notwithstanding the prevailing jurisprudence, a concern emerged that the Constitution could provide an avenue through which abortion would become