Ireland is in the process of proposing removal of the 8th Amendment – the provisions, inserted in the 1980s, recognising the right to life of the unborn as equal to that of the mother. The process – which should result in a referendum in June of 2018 – has involved a Citizen’s Assembly debating such changes, a special parliamentary committee conducting detailed hearings, and advice from the government’s legal advisors. One of the core issues – still being disputed – is whether the provision should be repealed without more, or replaced with a wording that specifically excludes judicial intervention in the abortion question. In this paper, I outline this disagreement, and what it shows about legal uncertainty; the role of the judiciary; the priorities of interest and lobby groups; and the particular problems presented by constitutionalising debate on contested moral issues.
The paper deals with the issue of abortion law in a comparative perspective.
Despite the scientific progress, the regulation of abortion represents an insidious field, which involves extra legal issues, such as the status recognized to the unborn, the freedom of choice of the woman and the right to life of the unborn. Moreover, since it arose in the public sphere, it has polarized civil societies.
The paper compares the evolution of abortion law in the USA and in Europe, arguing that the federal principle may represent an effective tool in order to address abortion regulation avoiding the polarization of the competing perspectives on the rights at stake.
The paper will show this role of federalism through the lenses of the case law and of the role of the judiciary in the USA and in Europe (with particular focus on Germany, Ireland and Italy).
An element that singularizes the Mexican constitutional debate on abortion in the Latin American scenario is no doubt federalism, since the Supreme Court decided in 2008 that abortion was to be adjudicated under this frame, and not under a fundamental rights frame. While this approach has been criticized for its minimalism, and for generating a mosaic with 32 different regulations, many of them restrictively reshaped, backlash way, in response to Mexico City’s regime of partial legalization, in this paper I will underline that decentralization has also had non-negligible advantages. I will argue that decentralization have exerted an important legitimizing effect on progressive reforms in the rest of the country and abroad, and an effectivity-reinforcing effect, which —as suggested by a decade of constitutional litigation in Mexico — we have little reason to believe would have occurred if centralization and unification had rather been the selected path.
This paper addresses the 1818 criminal case of a Connecticut minister named Ammi Rogers who was accused of impregnating Asenath Smith, a young woman to whom he was not married, and then giving her an abortion-inducing substance. Procedural and substantive difficulties in prosecuting Rogers were said to be the impetus behind an 1821 Connecticut statute that is cited as the first United States statute to criminalize abortion. Ammi Rogers’s case marked the beginning of a process of using formal law to rein in social, religious and sexual autonomy. In the decades subsequent to Rogers’s case, legal barriers to abortion spread throughout the United States. In many cases abortion laws seemed to be responses to the way that growing numbers of people could exercise sexual autonomy via access to and knowledge of abortion services, thereby controlling their own lives. In short, it was fear of sex, drugs and rock and roll that often fueled legal limits on abortion.