The problem with Clare Daly’s proposal on bodily integrity


 

I saw this on Twitter this morning:

 

Clare Daly TD proposal tweet 400x313

 

The proposal by Clare Daly TD is to insert the following into Article 40 of the Constitution, replacing the existing Article 40.3.3°:

The state acknowledges right of all citizens to personal autonomy and bodily integrity.

Presumably the intention here is to remove the restrictions around abortion in Ireland, which many have argued have led to abortion effectively being exported abroad, most especially to England.

This is the existing text of Article 40.3.3°, which was insterted following a referendum in 1983:

The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.

One of the problems with Daly’s proposal is that it is exclusive, affecting only “citizens.”

This wording creates a category of individuals in the state whose right to personal autonomy and bodily integrity is recognised – citizens of Ireland – and a category of individuals whose right to personal autonomy and bodily integrity is not recognised – those who are not citizens of Ireland.

One obvious consequence of this approach is that a situation such as the case of Miss Y from earlier this year remains unaddressed.

Thus, a fundamental right that is made contingent on citizenship status is no right at all.

 

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6 comments

  1. A constitution only deals with citizens.

    It’s not her wording that’s ‘exclusive’ -it’s the nature of a constitution.

    Changing / repealing the 8th Amendment is only one step for full access to abortion here, and Clare Daly is well aware of that.

    1. It’s totally untrue that a constitution only deals with citizens. If that were the case, women whose children would not be entitled to Irish citizenship would also not be subject to an abortion ban that protects the right to life of the unborn. Furthermore the Irish courts have already held that non-citizens are protected by the Constitution, even in some cases where the word “citizen” is used including other subsections of Article 40. I don’t see any reason why they wouldn’t interpret Clare Daly’s text similarly – though I’d agree the best course of action would be to change the wording to ensure they couldn’t.

  2. Thanks for your comment, eif.

    I take your point, although there are a couple of things which come to mind:

    One is that the issues affecting cases such as of Miss Y remains, which is my main point.

    Another is that, for instance, the Article concerning the right to vote in local elections stipulates citizens “and such other persons as may be determined by law.” Also, arguably, the Constitutional protection afforded by 40.3.3° appears to apply to all unborn children, regardless of actual or potential citizenship. Perhaps a broader provision could have been included; perhaps not.

    I’ve no doubt whatsoever that Daly is highly capable, and that she has obtained expert legal advice, but as I say the problems remain.

    1. Yes, the Miss Y type situations aren’t covered, but I guess I wanted to point out that the problems remaining are outside the capacity of this action, rather than something Clare Daly has done / failed to do.

      A friend had posted a link to this blog, and people were assuming – from how it was worded – that non-citizens were being ignored, rather than it being an issue with the nature of a constitution and the idea of citizenship.

      But maybe I was wrong and it’s not? I didn’t know about that phrasing around the local elections – seems so simple really, doesn’t it?

      I don’t think the bill is gonna go anywhere this time, unfortunately. The political will isn’t there.

      1. Yeah, it may not be that women in those situations are being ignored, as such, but that they remain outside of this proposal as it’s worded (for whatever reasons lie behind that).

        That’s true, unfortunately – I supposed Daly’s Bill is more than anything symbolic, given the government’s control over the legislature (and apart from other issues around so many politicians simply not wanting to properly address the issues of abortion and reproductive rights in Ireland).

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