Ruth Fletcher Dissertation Ireland Abortion

Post-colonial legal forms: A feminist critique of Irish abortion lawFletcher, Ruth ProQuest Dissertations and Theses; 2001; ProQuest Dissertations & Theses (PQDT) pg. n/a INFORMATION TO USERS This manuscript has been reproduced from the microfilm master. UMI films the text directly from the original or copy submitted. Thus, some thesis and dissertation copies are in typewriter face, while others may be from any type of computer printer. The quality of this reproduction is dependent upon the quality of the copy submitted. Broken or indistinct print, colored or poor quality illustrations and photographs, print bleedthrough, substandard margins, and improper alignment can adversely affect reproduction. In the unlikely event that the author did not send UMI a complete manuscript and there are missing pages, these will be noted. Also, if unauthorized copyright material had to be removed, a note will indicate the deletion. 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Post-colonial Legal Forms: A Feminist Critique of Irish Abortion Law RUTH FLETCHER A dissertation submitted to the Faculty of Graduate Studies in partial fulfilment of the requirements for the degree of DOCTOR OF JURISPRUDENCE Graduate Programme in Law Osgoode Hall Law School York University Toronto, Ontario December 2000 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 1+1 National Library of Canada Acquisitions and Bibliographic Services 395 Wellington Street Ottawa ON K1A ON4 Canada Bibliotheque nationale du Canada Acquisitions et services bibliographiques 395, rue Wellington Ottawa ON K1A ON4 Canada Your file Votre r616rence Our file Notre refSrtHJce T h e a u t h o r h a s g r a n t e d a n o n e x c l u si v e licen ce allo win g the Nati onal Libr ary of Can ada to repr oduc e, loan , distr ibut e or sell copi es of this thesi s inmi crof orm, pape r o r el e ct r o n ic f o r m at s. 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A Feminist Critique oflrish Abortion Law As A Post-Colonial Legal Form by Ruth Fletcher a dissertation submitted to the Faculty of Graduate Studies of York University in partial fulfillment of the requirements for the degree of DOCTOR OF JURISPRUDENCE © 2000 Permission has been granted to the LIBRARY OF YORK UNIVERSITY to lend or sell copies of this dissertation, to the NATIONAL LIBRARY OF CANADA to microfilm this dissertation and to lend or sell copies of the film, and to UNIVERSITY MICROFILMS to publish an abstract of this dissertation. The author reserves other publication rights, and neither the dissertation nor extensive extracts from it may be printed or otherwise reproduced without the author's written permission. Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. ------------------------------------------------------------------ FACULTY OF GRADUATE STUDIES Irecommend that the dissertation prepared under my supervision by Ruth Fletcher entitled A Feminist Critique oflrish Abortion Law As A Post-Colonial Legal Form be accepted in partial fulfillment of the requirements for the degree of DOCTOR OF JURISPRUDENCE Leslie Green November 2000 Supervisor Recommendation concurred in by the following B. Cossman - Examining Committee Ovl·l @ D. K.hayatt December 2000 w ---------------------------------------------------------------- Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. post-X.This judicial response to the constitutionalization of the right to life of the 'unborn' followed a 'pro-life' campaign which justified itself in part by drawing on Irish colonial history and representing abortion as a British Protestant colonial tool. from travelling for an abortion was a result of the interpretation of the fetal right to life as an interest so fundamental to the Irish public that it had to be absolutely protected. make a relational paternal interest out of the pregnant woman's equal right to life. It was this post-colonial role of the 'prolife' amendment which explains how the courts could make an absolute public interest out of the fetal right to life pre-X. The 1992 court order which stopped X. and. a fourteen year old suicidal rape victim. the courts addressed post-colonial anxiety by bringing reproduction under the nation's control. Rather. In doing so I develop a theoretical conception of post-coloniality as a historical object which has effects on societies which iv . I make this argument by showing how post-coloniality has operated as a cultural motivation for abortion law in certain social discourses. By making the people responsible for the protection of fetal life. the interpretation of Article 40 3 3 was a means of asserting the people's sovereignty. This was the context in which the legal interpretation given to the fetal right to life went beyond one justified by the language of Article 40 3 3 of the Irish Constitution.Abstract This dissertation argues that the peculiarity of Ireland's constitutional protection of a right to life of the 'unborn' reflects that right's distinctive status as a postcolonial assertion of Irish cultural authenticity. . Further reproduction prohibited without permission.Reproduced with permission of the copyright owner. have emerged through the formal ending of colonialism. I go on to depict a conception of legal form as a mechanism for explaining the relationship between social content and legal content. Through caselaw analysis I reveal how pre-X the post-colonial legal form attributed absolutist content to a constitutional provision which formally recognized competing rights between woman and fetus. but by interpreting it as a relational right rather than as an individual right. As a post-colonial legal form. I argue that legal form creates legal subjects by instilling in them rational control over particular objects. I go on to identify how the post-colonial legal form managed the crisis produced by the X case by recognizing X's right to life. . the 'pro-life' amendment used the historical legacy of the Constitution as a signifier of nationhood to shape the relationship between the people as legal subject and abortion as legal object. Further reproduction prohibited without permission. v Reproduced with permission of the copyright owner. Special thanks to Brenda Cossman. and more generally at York. Lea Dooley. . Shelley Gavigan and Les Green whose distinct contributions to the development of my research have been invaluable. My new colleagues at Keele have generously supported me over the last hurdles. and Eric Tucker for their patience and encouragement during my time as a graduate student at Osgoode. VI Reproduced with permission of the copyright owner. Liz Sheehy and Gina Feldberg taught me what an ideal supervisory and examining committee should be. Further reproduction prohibited without permission. to them my gratitude. And finally a big thank-you to Michael McKinnie who somehow managed to listen and laugh always at the appropriate moments through it all. Many others contributed to the rich intellectual environment at Osgoode. Didi Khayatt. LOJTaine Code.Acknowledgments Thanks to Mary Condon. which I feel fortunate to have participated in. ..................................................................118 Law as sovereign command..................................................................................................Table of Contents 1................................ 185 Rights holder by virtue of relationships............................................................................. POST-COLONIAL LEGAL FORM...............183 Absolutism in dissen/...................................................................................................................................................................................................................................................................................196 PRO-CHOICE SERVICES AS THE EXPLOITERS OF WOMEN........................................................................159 A NEO-COLONIAL THREAT? THE EXCLUSION OF EUROPEAN COMMUNITY LAW............................................................. LEGAL FORM MATTERS: CONTRADICTION AND CHANGE IN THE CONSTITUTIONAL STATUS OF ABORTION 79 FROM LAW AS A COMMODITY FORM..........................................................................................................................................................166 5......................................................113 ...................147 a public interest in womanhood................................................126 4..........................OF PUBLIC REPRODUCTION....................................118 Law as micro power.....................143 the impact of other constitutional rights.................................................................................................................................. 210 6..............................................................................................................................141 restrictions on the ordinal)' right to life......................................37 Not just class................49 POST-COLONIALITY AS A HISTORICAL OBJECT.......................................................................................................................................................................... 105 .................137 Disregard for Disregard for Disregard for Disregard for Disregard for Disregard for Article 40 33's qualifying clauses..........................190 Rightsho/der as an innocent victim deserving mercy..................................................... 39 THE HYBRID POST-COLONIAL..........................................................35 Not just the state................................. RELATIONAL LEGAL CONTENT: THE WOMAN'S RIGHT TO LIFE AS A RELATIONAL PATERNAL INTEREST 179 A WOMAN'SRELATIONALRIGHTTOABORTION..........86 Abortion and the commodity form theory............................................28 From decolonization to post-coloniality...... POST-COLONIAL LEGAL FORM.............................................................................................................................................................................................................................................................................................................................133 A FETUS'S ABSOLUTE RIGHT TO LIFE.........138 thefactual context of pregnancy.......................................................................................................41 THE GLOBAL POST-COLONIAL... LOCATING POST-COLONIALITY: THE SOCIAL FRAGMENTS BEHIND IRISH ABORTION LAW.....................................................................................199 A COLONIAL THREAT? STATE SUPPORT FOR ABORTION.........................................................................................................................................................................................................58 3.... I 2............................................... 233 vii ................................................................................................................................................................................................. ABSOLUTIST LEGAL CONTENT: THE FETAL RIGHT TO LIFE AS AN ABSOLUTE PUBLIC INTEREST.........................................................................................................................92 Changing legalform.....................................TO LAW AS AN OBJECT FORM........................................................................................................................................................................................................................................................56 POST-COLONIALITY AS A MOTIVATION FOR ABORTION POLITICS............ 25 THE HISTORICAL POST-COLONIAL....151 other relevant law. CONCLUSION................................................................................................................................................................................................................ 217 BIDLIOGRAPHY........................................................................................155 SPUC AS THE GUARDIAN OF THE PUBLIC INTEREST IN FETAL LIFE......................193 Rightsholder in need of paternal protection........... INTRODUCTION ...... 98 Gendering legalform........................................................................................................................................................................................................................................................................................................................................... assertion of a public interest in thefetus......................................... Reproduced with permission of the copyright owner. . Further reproduction prohibited without permission. in which a second young rape victim who was in the state's care also found herselfbefore the courts looking to be allowed travel to Britain for an abortion. 3 A poll commissioned by the Pro-Life Campaign and carried out by Irish Market Surveys in early May 2000 showed 67% in favour of a popular vote on the abortion issue. The need for legal clarification was driven home when the 1992 X case was followed by another disturbing case in 1997. 2 Yet as the Green Paper on Abortion indicates the likelihood of another referendum.R. feminist demands for women's access to abortion in their own country continue to be confronted with repeated referrals of the abortion issue to 'the will of the people'. hereinafter referred to as the X case. As a result of 1 the Supreme Court decision in Attorney General v. Sunday Independent 9 July 2000. there is no legislative guidance as to how it should be decided when a real and substantial risk exists. and B. However.R. Introduction Almost twenty years after the 1983 constitutional amendment to incorporate the right to life of the 'unborn'. as it is commonly referred to in Ireland. Eastern Health Board. Ireland faces the possibility of a fifth constitutional referendum on the issue of abortion.1. In the wake of two controversial cases which each brought a young pregnant rape victim before the superior courts in search of a legal right to abortion. 1. X and others [1992] 1 I. the current constitutional position is that a woman has a right to abortion where her life is at real and substantial risk. 465. v. 3 1 Attorney General v. 2 A.. [1998] I I. . See: "Pro-lifers press for new abortion referendum". X. the government has finally begun a consultation process which is expected to culminate in the provision of substantive legal guidance as to when an abortion is permitted. Distrinct Judge Fahy and C. Further reproduction prohibited without permission. .Reproduced with permission of the copyright owner. As a result the Irish legislature has ultimately had to face up to the responsibility of providing legal guidance on abortion and has initiated the ongoing reform process.The reform process out of which the Green Paper has emerged demonstrates both the felt practical need for the legal regulation of abortion and the cultural centrality of abortion in contemporary Ireland. should balance its legal obligation to protect fetal life with its legal obligation to provide for the medical treatment of children in its care. which provides: The State acknowledges the right to life of the unborn. both the Irish state and Irish society proceeded as if there was no need for legislative guidance as to the parameters of Article 40 3 3. as a State agency. 2 Reproduced with permission of the copyright owner. and with due regard to the equal right to life of the mother. It was only when women's ability to use the backdoor British option was threatened when the Attorney General sought an injunction to stop X from travelling for an abortion. as far as practicable. guarantees in its laws to respect. . by its laws to defend and vindicate that right. and. thus relieving both law and medicine of any pressure to accommodate abortion needs. The lack of legal clarity was again emphasized when the Eastern Health Board ended up in court because of the uncertainty about how it. that the implications of the vague constitutional position crystallized. Further reproduction prohibited without permission. That many women had managed to evade the reach of constitutional fetal protection could no longer obscure the fact that Ireland's most vulnerable young women could end up having their lives taken to court because of a lack of legal provision for the circumstances in which abortion was permitted within the State. Before the X case. Women addressed their need for abortion by travelling to Britain to avail of private abortion services there. 000 submissions. all of which sought a complete ban on abortion. such as the Medical Council or the Institute of Obstetrics and Gynaecology. Petitions containing 36. a year later than expected and eighteen months after the deadline for submissions. A 'Green Paper' is a discussion document and signals the beginning of a legal reform initiative. The current reform process began with a request for submissions from any interested parties on the relevant law to an Interdepartmental Working Group on Abortion. The Green Paper itself was published in September 1999. Feminist and pro-choice submissions were also received. Responses to the Green Paper were requested and the all party Oireachtas (Parliamentary) Committee on the Constitution is to hold 4 Interdepartmental Working Group on Abortion. .. the dearth of submissions from bodies representing health care professionals.The reform process itself. available at: http://www. nurses and counsellors were represented among those who participated in the consultation process. ibid. was noted. Green Paper on Abortion (Dublin: Department of an Taoiseach. a 'White Paper' is a statement of policy and provides the rationale for proposed legal reforms. at paragraph 5. as were submissions 5 from political parties and reproductive health organisations. for a list of the groups who made submissions. chaired by then Health Minister Brian Cowen. 1999). The Working Group received over 10. as well as the circumstances which brought it into being. the intensity of political participation serves as further evidence of abortion's public prominence. Although groups of doctors. 5 See Appendix 4.ie/taoiseach/ publication/ default. were also submitted. the vast majority of which were not only antiabortion but 4 requested an absolute ban on abortion.irlgov. Now that the most privileged means of expressing abortion's cultural importance has shifted momentarily from the legal stage to the political stage. is evidence of abortion's strong cultural resonance in Irish society.500 signatures.02. which was appointed to formulate a Green Paper.htm. 3 Reproduced with permission of the copyright owner. . Further reproduction prohibited without permission. and there were 3. Option one proposes an absolute ban. is not due to issue its report until October 2000.898 submissions from individuals or organisations. 10.000. to whom the Green Paper was referred. The retention of the constitutional status quo with legislative restatement of the prohibition on abortion. and option seven adopts a more liberal position and allows the possibility that grounds other than a risk to life (such as rape or risks to health). 7 Of the 105. 6. rather it outlined and discussed seven possible approaches to the issue: 1. The Green Paper made no explicit recommendations as to how abortion reform should be approached. Most of these approaches advocate variations on an extremely conservative abortion policy which would only permit abortion where there is a risk to the life to the pregnant woman. 6 As this process has not concluded as I write.public hearings to which invited parties will make representations during May to July 6 2000. 2. Permitting abortion on grounds beyond those specified in the X 8 case. 7. I am not in a position to review its implications for . An amendment of the constitutional provisions so as to restrict the application of the X case.000 were circular letters.000 were petition signatures. 5. 3. 90. The All Party Oireachtas (Parliamentary) Committee on the Constitution. Legislation to regulate abortion in circumstances defined by the X case.000 responses most of which preferred option one: a complete ban on abortion. 4. A reversion to the position as it pertained prior to 1983. An absolute constitutional ban on abortion. The retention of the status quo. The Taoiseach (Prime Minister) has reported that the Green Paper received 105. Further reproduction prohibited without permission. 8 February 2000.4.16. at paragraph 7. 513. 4 Reproduced with permission of the copyright owner. 7 Dail (Lower House orParliament) Debates. . supra note 4.the purposes of this dissertation. 8Green Paper. No. Vol. the slow shift away from an absolutist negative attitude to abortion is significant. it is extremely doubtful that the legislature will take a liberal stand against popular opinion which dominantly desires a restrictive abortion law.might justify abortion. This dissertation is a response to the opportunity for reflection that such a change provides. the time is ripe for taking a step back from the process of abortion reform in order to pose some critical questions about it. how has the legal system resolved the conflict between the constitutional right to life of the 'unborn' and the woman's right to abortion where her life is at risk? What are the cultural justifications for the particularities of Irish abortion law and how do they pose particular challenges to a pro-choice feminism? In this dissertation the answer which I pursue is that the peculiarity of Ireland's constitutional protection of a right to life of the 'unborn' reflects that right's distinctive 5 . Although there is a political commitment to reform and to the clarification of the circumstances in which abortion is permitted. Even though liberal abortion reform is unlikely. Now that the policy-makers have at least recognized that they cannot simply prohibit abortion and ignore the consequences. Why is it that Ireland is the only Western nation state to constitutionalize the fetal right to life? How could the judicial ann of a parliamentary democracy justify stopping a young pregnant woman from travelling outside the country for the duration of her pregnancy? Once that decision was overturned on appeal. Rather both the Government and the All Party Committee have been at pains to make the reform process as open and deliberative as possible in the hope of producing a consensus on minimal abortion reform. .Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. status as a post-colonial assertion of Irish cultural authenticity. The court order which stopped X from travelling for an abortion was a result of the interpretation of the fetal right to life as an interest so fundamental to the Irish public that it had to be absolutely protected. This judicial response to the constitutionalization of the right to life of the 'unborn' followed a 'pro-life' campaign which justified itself in part by drawing on Irish colonial history and representing abortion as a British Protestant colonial tool. This was the context in which the legal interpretation given to the fetal right to life went beyond one justified by the language of Article 40 3 3 of the Irish Constitution. Rather, I argue, the interpretation of Article 40 3 3 was a means of asserting the people's sovereignty. By making the people responsible for the protection of fetal life, the courts address postcolonial anxiety by bringing reproduction under the nation's control. It is this postcolonial role of the pro-life amendment which explains how the courts could first make an absolute public interest out of the fetal right to life and second make a relational paternal interest out of the pregnant woman's equal right to life. Thus as Irish feminism engages with the reform process, there is a need to pay attention to the trends which have informed legal interpretation of abortion related rights so far. When presented with the recognition of a fetal right to life co-equal to the right to life of the pregnant woman, the courts have chosen to interpret the fetal right to life as an absolute public interest which justifies the censorship of information about abortion. When presented with a young suicidal pregnant rape victim claiming a right to abortion, the courts have chosen to interpret her right to abortion as a relational paternal interest justified by her 6 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. relationships and circumstances rather than by her individuality. Through this process of constitutional interpretation the courts have been active agents in claiming a post-colonial cultural authenticity for Irish pro-life identity. That post-colonial cultural authenticity is judicially formed first by representing the value of fetal life as something essential to the Irish nation which cannot be interfered with. Yet the X case reveals the hybridity of the pro-life amendment - its production through a nationalist negotiation with colonial history rather than through an escape from that history - as the Supreme Court can no longer sustain absolute protection for fetal life. But, as I will show, the hybridity of the constitutional protection of fetal life is managed by making the assertion of a woman's conflicting right to life dependent on victimized circumstances. The possibility of change through legal reform and the actuality of change in legal interpretation both coincide with a developing recognition that abortion is an Irish practice, even if it is not one performed within national boundaries. In 1995 the Department of Health made the unprecedented decision to commission research into the factors 9 contributing to unwanted pregnancies and abortion. The commissioning and reporting of this research represented for the first time an explicit recognition that Irish women were having abortions and that public policy needed to consider the implications of that practice. Since 1970, 72,000 women who have given addresses from the Republic of Ireland have had abortions in England or Wales. 10 In 1994 the abortion rate for Irish women was 5.8 per 9 See Evelyn Mahon, Catherine Conlon and Lucy Dillon, Women and Crisis Pregnancy, (Dublin: Stationery Office, 1998). 10 The data on Irish abortions is provided by the statistics published by the Office of Population Censuses and Surveys which documents the numbers of non-resident women having abortions in England and Wales. 7 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. thousand women between the ages of 15 and 44. This may be compared with a rate of 6 per thousand in the Netherlands in 1994, which has the lowest rate of European countries which have legal abortion, and with a rate of 14.79 per thousand in Britain in 1992. 11 Just over 79% of Irish women having abortions in England or Wales were single, and 70% of them were aged between 20 and 29. The research report shows that 99% of the Irish women who had abortions did so on the legal ground that "the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, or injury to the physical or mental health of the pregnant woman", the most liberal of the grounds provided by the 1967 Abortion Act. Unsafe sexual practice was identified as the main factor contributing to women having unplanned pregnancy. Those who chose abortion as their way of managing unplanned pregnancy had a range of complex reasons for doing so, including shame about non-marital sexual activity, fear of disclosing their pregnancies to their parents, and anxiety about work and motherhood. The economic risks, financial dependency and negative stereotyping of lone mothers were identified as the main aspects of the underlying social context which made crisis pregnancy a stressful event in a woman's life. The decision by the Department of Health to commission the research that went into the Women and Crisis Pregnancy Report, represents, like the decision a legal a pathbreaking acknowledgement reform process, to initiate of abortion as an issue which has to be addressed. The gap between the Therefore, Irish women who give English or Welsh addresses or who have abortions outside of England and Wales are not included in these statistics. 11 Supra note 9 at 30. 8 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. rationales behind Irish women's abortion practice and the rationales recognised by the legal reform process illustrate however, the hurdles yet to be surmounted as feminists look for legal accommodation of women's abortion needs. Abortion has long occupied a central position in feminist politics, some might argue too central. 12 The phenomenon of women terminating their pregnancies has exercised the minds of moral theorists over the ethics of women's decision-making fetallife, 14 cultural 16 and the ending of challenged historians to document and explain the significance of abortion's development, groups. 13 15 and required sociologists to trace abortion's capacity to mobilize social Abortion has confronted legal scholars with problems of regulation, theorists questions about its symbolic role, 18 provoked 17 posed conservatives into 12 See for example, Marlene Gerber Fried (ed.), From Abortion to Reproductive Freedom: Transforming a Movement (Boston: Southend Press, 1990). 13 Carol Gilligan, In a Different Voice (Cambridge: Harvard University Press, 1982). 14 See for example: Laurie Shrage, Moral Dilemmas of Feminism: Prostitution, Adultery and Abortion, (New York: Routledge, 1994); John T. Noonan et al., The Morality of Abortion (Cambridge, MA: Harvard Univesity Press, 1970); L.W. Sumner, Abortion and Moral The01y, (Princeton: Princeton University Press, 1981); Ronald Dworkin, Life's Dominion: An Argument about Abortion, Euthanasia and Individual Freedom (New York: Alfred A. Knopf, 1993). 15 See for example: John Keown, Abortion, Doctors and the Law: Some Aspects of the Legal Regulation of Abortion in England from 1803 to 1982, (Cambridge: Cambridge University Press, 1988); Shelley Gavigan, "The Criminal Sanction as it Relates to Human Reproduction: The Genesis of the Statutory Prohibition of Abortion", (1984) 4 The Journal of Legal Hist01y 20; Sally Sheldon, Beyond Control: Medical Power, Women and Abortion Law, (London: Pluto Press, 1997);.Michael Thomson, Reproducing Narrative: Gender, Reproduction and Law, (Aldershot: Ashgate, 1998). 16 See for example: Kristen Luker, Abortion and the Politics of Motherhood (Los Angeles: University of California Press, 1984); Gail Kellough, Aborting Law: An Exploration of the Politics of Motherhood and Medicine (Toronto: University of Toronto Press, 1996); Victoria Greenwood and Jock Young, Abortion in Demand (London: Pluto Press, 1976). 17 See for example: Janine Brodie, Shelley Gavigan, and Jane Jenson, The Politics of Abortion (Toronto: Oxford University Press, 1992); Glanville Williams, The Sanctity of Life and the Criminal Law, (London: Faber and Faber, 1958); Bernard Dickens, Abortion and the Law, (Bristol: McGibbon and Kee, 1966); James Kingston and Anthony Whelan, with Ivana Bacik, Abortion and the Law, (Dublin: Round Hall and Sweet & Maxwell, 1997). 18 See for example: Rosalind Pollack Petchesky, "Foetal Images: The Power of Visual Culture in the Politics of Reproduction", in Michelle Stanworth (ed.) Reproductive Technologies: Gender, Motherhood and 9 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. campaigning against it, 19 significance in women's lives. 20 and demanded that feminists account for its particular Given that abortion has such an intimate link with the role of women in the reproduction of the human species, its capacity to become a focus for so many different analyses and movements is perhaps unsurprising. Yet the way abortion has operated as such a focus has changed a lot historically and culturally. For example, feminist concerns about abortion may range from criticisms of foeticide in India to criticisms of abortion prohibitions in Ireland. They may address changes in the current means of abortion's 1 regulation, from legal to medical for example/ or relate the emergence of abortion as an object of legal regulation to the professionalization and masculinization of medical practice m. theiate eteent h century.22 nm. Thus although patriarchal control of women's reproductive capacity may almost always feature as a facet of abortion, explaining abortion policies and practices in terms of a simple relationship between patriarchal control and feminist resistance can rarely provide an analytical framework which can adequately unearth the complexity and diversity of abortion practices over time and space. As the variety of feminist critiques of abortion Medicine (Minneapolis: University of Minnesota Press, 1987) at 57-80; Emily Martin, The Woman in the Body: A Cultural Analysis of Reproduction, (Boston: Beacon Press, 1987); Thomson, supra note 15. 19 See for example, Austin Flannery (ed.), Abortion and Law: A Doctrine and Life Special (Dublin: Dominican Publications, 1983); Rebecca Klatch, "Women of the New Right in the US: Family, Feminism and Politics" in Valentine Moghadam (ed.), Identity Politics and Women: Cultural Reassertion and Feminisms in International Perspective (Boulder: Westview Press, 1994) at 367-388. 20 Rosalind Pollack Petchesky, Abortion and Woman's Choice: The State, Sexuality and Reproductive Freedom (Boston: Northeastern Press, 1990/1984); Kathleen McDonnell, Not an Easy Choice: A Feminist Re-examines Abortion, (Toronto: Women's Press, 1994). 21 Sheldon, supra note 15. 22 See Thomson, supra note 15, in particular "The Doctor, the Profession, his Patient and her Abortion", 3-36; Petchesky, supra note 20, in particular see: "Abortion and the State: Nineteenth Century Criminalization", at 67-100; Linda Gordon, Woman's Body, Woman's Right, (New York: Penguin, 1990/1974). 10 Reproduced with permission of the copyright owner. . Further reproduction prohibited without permission. Some recent feminist scholarship has revisited materialist theory in an attempt to avoid some of the excesses of post-structuralist emphases on language and discourse as the means through which women are socially constructed. .shows. That concern is materialist because it emerges out of the concrete conditions of women's lived experiences. Further reproduction prohibited without permission. the conditions which must advantage some as they disadvantage others along gender divides. by particular kinds of abortion access is better answered if feminists also set out to answer how and when such restrictions. II Reproduced with permission of the copyright owner. and therefore be able to change. feminists need to combine the why questions with the how questions. or conversely liberated. and applies to the actual processes through which law and women's lives affect each other. perhaps oversimplified. operate. Whether and why women are restricted. I understand this. My critique of Irish abortion law is feminist in the sense that it is underpinned by a concern for the empirical and normative effects of abortion law on women's lives. It is post-structuralist because my critique takes the representations through which these processes work seriously. and liberations. To analyse. feminist critique is at its best when a concern with constraints on women's lives is combined with a concern for the means through which such constraints operate. Similarly. knowing the means by which a certain practice affects women's lives is inadequate to the task of understanding and altering that means if one does not also know the ends to which it applies. way of combining the questions I have thought appropriate to ask about my research topic as mapping onto a theoretical framework which draws on both materialist and post-structuralist feminism. and to transform the economic practices which deny women the material resources they need. 12 . Nancy Fraser. "Merely Cultural". "Fan1ily. Iris Marion Young. Gretlle Peterson ed. 23 See Nancy Fraser. Fraser identifies the principal benefit of this paradigm as its capacity to illuminate different aspects of actual concrete injustices and to minimize the potential for conflict between different types of emancipatory political claims by identifying how they can co-operate with each other. Judith Butler. (1999) 8(3) Social and Legal Studies 369-390. Nancy Fraser. (1997) 223 New Left Review. Law. See Susan Boyd. it sparked a lively debate over tl1e recognition/redistribution distinction. "Heterosexism. The Tanner Lectures on Human Values. Recognition and Participation". "A Rejoinder to Iris Young". "Social Justice in the Age ofldentity Politics: Redistribution. When an earlier version of the first chapter of this book was published.The debate which has emerged out of Nancy Fraser's drawing of an analytical distinction example. vol. (1998) 228 New Left Review 140-150.. 1999). "Unruly Categories: A Critique ofNancy Fraser's Dual Systems Theory". (London: Verso. 23 between socio-economic injustice and cultural injustice is one such Fraser stresses that the distinction is a heuristic device and that actual concrete injustices cannot be neatly segregated into two types. She argues that a critical practice such as feminism should combine a transformative politics of recognition with a transformative politics of redistribution in order to tackle cultural and socio-economic injustice respectively. Feminists need both to transform the cultural representations which stigmatize women. and Nancy Fraser. A second benefit is that this paradigm identifies the need to transform the underlying processes of economic and cultural injustice rather than to simply affinn the value of those to whom injustice has been done. 1997). (1997) 222 New Left Review 147-160. 19 (Salt Lake City: 1998) 1-67. (1998) 227 New Left Review 33-44. see "From Redistribution to Recognition? Dilemmas of Justice in a Postsocialist Age". for an engagement with Fraser and Butler in a critique of gay and lesbian struggles for legal recognition of 'spousal relationships'. Justice Interruptus (New York: Routledge. Misrecognition and Capitalism: A Response to Judith Butler". ( 1995) 212 New Left Review 68-93. and Sexuality: Feminist Engagements". See furtller: Nancy Fraser and Kevin Olson. Adding Insult to Injury: Social Justice and the Politics of Recognition. .Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Therefore. feminists argue that women should be the ones who decide whether or not to have children. In the second instance. feminist arguments for women's reproductive freedom generally have two dimensions. supra note 20. authority over their reproductive capacities. and the . The goals which guide feminist engagement with abortion law are the transformation of the cultural representation of women as incapable of exercising transformation of the 24 Petchesky. the denial of abortion access is also a form of economic injustice since it denies women the capacity to opt out of the materially undervalued role of motherhood. and places most of the burden of social reproduction on women. When Irish feminism engages with law in the struggle to liberalize abortion access. rather than from their individual interests. the feminist argument for women's reproductive freedom derives from the acknowledgement of women's social position. its practice has both the aspects of recognition and of redistribution. 24 In the first instance the demand for women's reproductive freedom arises from the argument that the denial of women's reproductive control infringes their bodily integrity and self-determination. As Rosalind Petchesky has clarified. Given that women are the most affected by pregnancy under a social division of labour which gives women primary responsibility for child care. in Fraser's terms. The denial of abortion access does a cultural injustice to women by refusing to recognize their authority over their reproductive capacity when authority over one's physical person is culturally represented as a hallmark of individuality.Feminists criticize the legal restriction of access to abortion for both economic and cultural reasons. Further reproduction prohibited without permission. .13 Reproduced with permission of the copyright owner. . it was so obviously patriarchal in its manipulation of women to the ends of reproduction. On the one hand I felt that a feminist critique of Irish abortion law hardly had to be justified. in the enforcement of Article 40 3 3 if feminist critiques were to be taken seriously by Irish policy makers. I knew that it was necessary to show how women's legal interests had been underrepresented. My feminist critique seeks to explain how Irish abortion law has come to represent the woman as subservient to her fetus. One of the most frustrating aspects of my research process when I first began the work for this dissertation was the difficulty I had in confronting what seemed to me at once so obvious and yet so needing to be said: that the legal regulation of abortion in Ireland completely neglected women's legal interests. that I began to see that the revelation of how judicial interpretation had brought abortion law to the point of excluding women's interests also pointed towards a more complex explanation as to why abortion law was so extremely restrictive. if not omitted. Almost at the same time as my concern for combining the ends and the means in feminist critique grew through reading different feminist theories and studies.economic regime which makes women primarily responsible for the labour of social reproduction. Further reproduction prohibited without permission. It was through this work. and post X the recognition of 14 Reproduced with permission of the copyright owner. at the same time as it provides an explanation as to why that representation is dominant. The construction of an absolute fetal right to life. my own development of a feminist critique of Irish abortion law was experiencing the same tensions. the close analysis of the controversial case-law which forms the basis of Chapters Four and Five. And on the other hand. In other words. 1992). Noel Whitty. "The Right to Life of the Unborn. . Further reproduction prohibited without permission.An Assessment of the Eighth Amendment to the Constitution". The protection of patriarchal interests might have required pro-natalism. See also: John Quinlan. 15 Reproduced with permission of the copyright owner.e. 25 Legal scholars had explained the peculiarities and traced the development of doctrine revolving around Article 40 3 3. And legal scholars had not really shown how abortion law could have developed differently even within Irish 25 The most prominent collection of feminist essays on Irish abortion politics is: Ailbhe Smyth (ed. This method of combining what amounted to a 'reading against the grain' of abortion law with a theoretical development of an explanation for that which was hidden about abortion law. its post-colonial legal form. supra note 17.). "Law and the Regulation of Reproduction in Ireland: 1922-92". Feminist critiques of the enforcement of Article 40 3 3 had revealed the negative effects it had on women's lives and argued against its representation ofwomen. were not simply the result of a patriarchal interest in tying women to the task of reproduction. (1993) 43 University ofToronto LawJourna/851-888. The Abortion Papers-Ireland (Dublin: Attic Press. i. nor the sort of relational rights that the courts later recognise as inhering in a woman by virtue of her dependent status. also evolved as my response to what I perceived to be missing in the literature on Irish abortion law and politics generally. (1984) Brigham Young University Law Review 371-402. I came to see abortion law as a post-colonial legal form through a continuous process of feeding my answers to the how questions into my answers to the why questions.a relational woman's right to abortion. There had to be some further explanation for the extremes to which abortion law was prepared to go. but not the sort of absolutism which would deny women any rights rather than allow abortion.Z 6 But feminist critiques largely had not looked beyond the offensive legal practice itself to ask what might account for its particularities and its recentness. 26 The leading work in this area is: Kingston and Whelan. Prohibiting what had been the acceptable practice of aborting pregnancies prior to quickening . In one sense my project is an attempt to redress this imbalance by providing both an internal critique and an external explanation of the law. . and as a result of a campaign to prevent its legalization.the fourth or fifth month of pregnancy when the foetus became 'ensouled'. over which was adopted when Ireland was part of the United Kingdom. and in 1917 that it provided for the excommunication of the pregnant woman who aborted. abortion was regulated through the 1861 Offences against the Person 27 Act. 27 See infra at 141 for a discussion of the relevant provisions. It was only in 1869 that the Roman Catholic Church dropped the reference to the 'ensouled' foetus in the provisions on excommunication for abortion. One of the most particular aspects about Irish abortion law is the relatively recent nature of its public prominence. I set out to clarify the relationship between the post-colonial legal form and the content of Irish abortion law as part of the task of explaining why and how that law neglected women's interests. Up to this point.was one means by which female midwives were marginalized and separated from their female patients. and carried into the law of the Irish Free State in 1922 under the Free State Constitution. and later under the 1937 Constitution. Abortion came to occupy a central position on the political stage only from the early 1980s on. The 1861 Act was part of a wider pattern of abortion criminalization and medical professionalization in the late nineteenth century.constitutional parameters. but did not. Further reproduction prohibited without permission.16 Reproduced with permission of the copyright owner. . 31 R.Z Rose reports that there were eleven investigations undertaken into illegal abortions by the time the Bill became law. 28 Section 17 prohibited the sale. A lone voice of objection was heard in the Dail. PhD thesis. 29 Dai1 Reports 1935 A. Sweden. gynaecologist 28 Which became: Criminal Law (Amendment) Act. . v. 6. Acts of the Oireachtas.93% of the live birth rate. Jackson reports that non-marital births then termed illegitimate accounted for 3. Dr. 32 Pauline Conroy Jackson. prosecutions for illegal abortions dropped sharply. As women's travel was restricted during the Second World War however.The young independent Irish Free State saw no reason to refrain from this trend in restricting women's reproductive control. 30 R. Irish 32 Since the adoption of the 1967 Abortion Act in Britain. The lack of infonnation about and access to fertility control methods did not stop Irish women from trying to avoid unwanted pregnancy.S. "Outside the Jurisdiction: Irish Women seeking Abortion". An Outline of Fertility Control Focussing on the Element of Abortion in the Republic of Ireland. advertising and importation of contraceptives. women have travelled there and availed of private abortion services rather than use backstreet abortion services. a Bill to criminalize contraception was passed by the Dail (Lower House of Parliament). the highest proportion ever recorded between 1864 and 1977. University ofStockho1m. 30 However. which interpreted the 1861 Act as permitting therapeutic abortion. In 1935. Rowlette TD (MP) warned that the Bill could lead to increased criminal 9 infanticide and abortion. Bourne [1938] 3 AllER 615. 1935. in Ailbhe Smyth. Michael Solomon. backstreet abortion increased along with the rate of non-marital births. after the Bourne 31 decision in Britain in 1937. no. Institute of Sociology. unpublished. Rose. 17 Reproduced with permission of the copyright owner. and with author. manuscript on file in Trinity College Dublin's library.supra note 25. Further reproduction prohibited without permission. See also: Pauline Jackson. 119-137. . "Abortion Trials and Tribulations". June Levine. But as political demands for legalized contraception grew. if feminists were reluctant to publicly draw a link between abortion and contraception.and co-founder of the first family planning clinic in Ireland. abortion remained taboo. conservatives were not. While attending one birth. Sisters: The Personal Story of an Irish Feminist . people improvised. "The Contemporary Women's Movement in the Republic oflreland" (1988) 11(4) Women's Studies International Forum 331-341. In 1968. The Irish Women's Liberation Movement listed access to contraception as one of its demands in its 1971 manifesto. the 34 Women organized a well publicized train trip to North to get contraceptives there and bring them back to Dublin. the Family Planning Study Circle was founded and in February 1969 its members opened the Fertility Guidance Clinic in Dublin. They became even less so when the Supreme Court 33 Michael Solomons. Feminists and fertility control advocates felt that to include abortion in their list of demands would be to invite public rejection. As no mechanical means of contraception were available. However. The Clinic avoided the 1935 Act's prohibition on the sale of contraceptives by adopting a practice of giving contraceptives away for free while requesting 'donations' from their clients. and family planning clinics began to establish themselves. tells an interesting anecdote which illustrates the point: "Desperation bred ingenuity. a colleague came across the strange phenomenon of a baby born with the top of a Guinness bottle stuck on its head. Pro Life? The Irish Question (Dublin: Lilliput Press. 1992) at 6. 34 See Ailbhe Smyth. the first private clinic to offer contraceptive advice. The mother had hoped it would act as a contraceptive"! 33 It was not until the late 1960s however that women's groups began to organize around demands for legalized contraception. 18 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 1982).(Dublin: Ward River Press. . McGee's right to marital privacy. bona fide. 37 The Health (Family Planning) Act. 38 where the US Supreme Court had determined that the unspecified constitutional right to privacy. 1995). the stipulation in section 17 of the Criminal Law (Amendment) Act. "The Need for a Constitutional Amendment".interpreted the Constitution as protecting a right to marital privacy which included the right 5 to use contraception without the State's interference. 116-127. in Gerard Quinn. Haughey used a now infamous phrase: "This Bill seeks to provide an Irish solution to an Irish problem. As a result of the Health (Family Planning) (Amendment) Act. "Marital Privacy and Family Law: A reply to Mr. 1992. O'Reilly". Before prescribing contraception. replying to James O'Reilly. as far as practicable. first recognized in a case concerning contraception. supra note 19. I have not regarded it as necessary that we should conform to the position obtaining in any other country. by its Jaws to defend and vindicate the personal rights of the citizen". The McGee decision provoked a hostile reaction from conservatives not simply because it paved the way for the legalization of contraception. emphasis added. 36 Which provides "The State guarantees in its Jaws to respect. which prohibited the importation of contraceptives for personal use was found unconstitutional because it violated Mrs. Masterminds of the Right. "Missing Mary McGee: The Narration of Woman in Constitutional Adjudication". (1977) 66(264) Studies: An Irish Quarterly Review 330. provided that all contraceptives. Attorney GeneraP a majority of the Court declared that the right to marital privacy was one of the unspecified personal rights guaranteed by Article 40 3 1 36 of the Irish Constitution.). (1977) 66(261) Studies: An Irish Quarterly Review 8. (Dublin: Attic Press. Wade. Conservatives argued that the right to privacy could enable the legalization of abortion. in Flannery. 39 See in particular: William Binchy. 1935. would be available only on prescription from a doctor. gave Jane Roe a right to abortion. Attracta Ingram and Stephen Livingstone (eds. especially given the precedent of Roe v. In justifying the restrictive nature of the Act. the doctor had to ensure that "the person required the contraceptives for the purpose. 1992) at 51. condoms can now be made available to anyone over 17. See also William Binchy.R. . 35 39 [1974] I." See Emily O'Reilly. In McGee v. including condoms and spermicides. 1979. of family planning or for adequate medical reasons and in appropriate circumstances". see Leo Flynn. 38 (1973)410US 113. 91106. "Marital Privacy and Family Law". For a feminist critique of this decision. albeit marital privacy. Therefore. and. 37 but also because of its recognition of a constitutional right to privacy. Justice and Legal Theory in Ireland (Dublin: Oak Tree Press. 284. 19 Reproduced with permission of the copyright owner. . Further reproduction prohibited without permission. had issued official statements opposing the idea of a 'pro-life' amendment being enshrined in the Constitution. As John O'Reilly. 20 . 1990) at 4-6.. By June 1982. The Second Partitioning of Ireland: The Abortion Referendum of 1983." It was the recognition of the particularly absolute Roman Catholic ethos of the proposed amendment which caused the Irish Protestant Churches to come out in support of the Anti-Amendment Campaign (AAC).. abortion becoming legally permitted in Ireland. the AAC raised five main objections to the pro-life amendment: • the amendment would do nothing to solved the problem of unwanted pregnancies. and Methodist . A diverse group of feminists. The PLAC held its founding conference in January 1981 in Dublin. What is proposed here is to take a positive stand to pre-empt the abortionists . 40 Tom Hesketh. The AAC was officially launched in April 1982. The alternative would have been to wait and watch the abortion lobby erode our laws by court cases and private members' 40 Bills. Presbyterian.. (Dublin: Brandsma Books. socialists.. and was officially launched in April as it unveiled its proposed constitutional amendment at a press conference: "The State recognises the absolute right to life of every unborn child from conception and accordingly guarantees to respect and protect such right by law. and liberals. each of the main Protestant Churches in Ireland Anglican. Their chosen method for doing so was by way of constitutional amendment to recognise the right to life of the 'unborn'. one of the chief instigators of the Pro-Life Amendment Campaign (PLAC) argued: Abortion campaigns have met with deadly success in other societies and the pro life reaction has only come when the battle was already lost. Attack is the best form of defense.Pro-life activists began to organize during the late 1970s to prevent. as they saw it. Reproduced with permission of the copyright owner. . Further reproduction prohibited without permission. and. or in cases of rape or incest. e the amendment sought to enshrine in the Constitution the teaching of one religious denomination.• the amendment allowed for no exceptions even in cases where pregnancy severely threatened a woman's health. with due regard to the equal right to life of the mother. the pro-life amendment became interpreted as 21 Reproduced with permission of the copyright owner. . by its laws to defend and vindicate that right. The manner in which post-colonial legal form attributes content to abortion law has changed in the aftermath of the constitutional amendment. In this dissertation the explanation I provide is that the pro-life constitutional amendment is a post-colonial legal form. A bitter and divisive campaign ensued that ultimately resulted in the following proposed constitutional amendment being put before the electorate in September 1983: "The State acknowledges the right to life of the unborn and. therefore. • that at a time of severe unemployment and when one third of the population was living at or below the poverty line. as far as practicable. Further reproduction prohibited without permission. requires explanation. The adoption of a pro-life amendment at the behest of conservatives and in a context where abortion itself was already criminal. the referendum would be an irresponsible waste of public funds. is its recent constitutional development. First. however. guarantees in its laws to respect. • the amendment would impede further public discussion and possible legislation on abortion." Fifty-four per cent of the electorate turned out to vote and the amendment was accepted by a majority of sixty-seven per cent to thirty three per cent. Irish abortion law can be identified as such because it marks the nation-state's independence from its former coloniser by making abortion an object of national control. In doing so abortion law constitutes the people as the primary legal subject having control over abortion. Part of what makes Irish abortion law so distinct. When it produces a relational interest in fetal life the pregnant woman's legal subjectivity is recognised. and provides social material for agencies engaging with that law. In doing so I develop a conception of post-coloniality as a historical object which has effects on societies who have emerged through the formal ending of colonialism. Article 40 3 3 was interpreted as bestowing a relational right to abortion on extremely victimized women. I make this argument by showing first of all in Chapter Two how post-coloniality has operated as a cultural motivation for abortion law. I hold that theorizing legal form helps to explain how social content becomes 22 . Post-coloniality works as a motivation for abortion law sometimes by constructing Irishness as needing protection from infiltration by foreign pro-choice values. has effects on the evolution of that law. When this post-colonial legal form produces an absolute interest in fetal life the pregnant woman is rendered a non-subject. Second.bestowing absolute legal protection on the fetal right to life. but only paternalistically as a victim whose circumstances justify an accommodation of her claim to abortion. Chapter Three argues that feminist legal theory ought to interrogate legal form more carefully if it is to account for the particular ways in which law changes and affects social relations. in the wake of the crisis produced when this interpretation is enforced against a fourteen year old rape victim. I argue that Ireland's history of English colonization is part of the background objective conditions of abortion law. and at other times by constructing Irishness as needing protection from exploitation by foreign pro choice reproductive service providers. . Further reproduction prohibited without permission.Reproduced with permission of the copyright owner. becomes more transparent. and abortion law was represented as an exclusively national issue through the rejection of European Community law. the potential for legal form to constitute the people as the subject in whom control over reproduction is vested. For Foucault. When. through a reading of O'Brien. Further reproduction prohibited without permission. The interpretation of the fetal right to life as a public 23 Reproduced with permission of the copyright owner. legal form translated the post-colonial social construction of exclusive pro-life Irishness into the interpretation of abortion as an infringement of an exclusive public interest in fetal life.legal content. Chapter Four details the process by which the post-colonial legal form attributed absolutist content to a constitutional provision which formally recognized competing rights between woman and fetus. Drawing on Pashukanis and Foucault. I reveal how the courts systematically failed to accommodate constitutional interests which could be construed as compromising the fetal right to life. In this way. how a public interest in fetal life was constructed and instilled in SPUC. As a post-colonial legal form. law creates sovereigns by issuing commands over people and things. the pro-life amendment uses the historical legacy of the Constitution as a signifier of nationhood to shape the relationship between the people as the legal subject and abortion as the legal object. In so doing the courts construct the fetal right to life as a marker of Irish cultural authenticity. Thus for Pashukanis. I argue that legal form creates legal subjects by instilling in them rational control over particular objects. law creates property owners by bestowing property rights over objects. and the means by which public abortion discourses get translated into law. . reproduction is identified as a set of social relations to which legal form responds and acts upon. but by interpreting it as a relational right rather than as an individual right. ought not become a mother. Although reproductive control remains dominantly a national responsibility. Once the fetal right to life loses its claim to absolute enforcement its hybridity is revealed and its cultural authenticity rebuked. national control of reproduction changes by making the assertion of X's right contingent on her relationships and social circumstances. . 24 Reproduced with permission of the copyright owner. becomes clearer. Chapter Five identifies how the post colonial legal form manages the crisis produced by the X case by recognizing X's right to life. the post-colonial legal form now attributes content to abortion law not by denying all women access to abortion. a young traveller girl. hopefully. As some of the trends and the changes in abortion law are revealed through this dissertation.interest reveals its post-colonial hybridity. but its expression as an absolute interest denies that hybridity in the name of cultural authenticity. but by subjecting them to a quality control test. Further reproduction prohibited without permission. In the C case the benevolent paternalism which had granted X a right to abortion becomes more directive as the Court implies that C. the task for Irish feminism as it attempts to influence the reform process. As the Supreme Court's accommodation of X's right to abortion punctures the absolute fetal right to life. in lain Chambers and Lidia Curti (eds. Locating Post-coloniality: The Social Fragments Behind Irish Abortion Law In this chapter I argue that a perceived need to define Irishness in opposition to Englishness. I join in the critique of an overly expansive concept of the post-colonial and argue that a conception of postcoloniality as a historical object provides a much needed corrective to contemporary uses of the 'post-colonial'. "Histories.). In the first part of this chapter. 1995) at 3. see Terry Eagleton. I argue that conceiving of post-coloniality as a historical object allows 41 Sometimes the opposition is constructed as Irish/English. Empires and the Post-Colonial Moment". Robert Young describes British as a "cunning word of apparent political correctness invoked in order to mask the metonymic extension of English dominance over the other kingdoms with which England has conducted illicit acts of union". Divided Horizons (London: Routledge. . If post-colonial critique is to clarify how and why post-coloniality has an impact on socio-legal practices it needs to develop an explanation of what it is about post-coloniality that allows its impact to vary over time and between players in the abortion debate. citizens of Southern Ireland do not. Although citizens of Northern Ireland might identify as British.). "Postcolonialism: The Case of Ireland". The manner in which this post-colonial representation of Irishness in opposition to Englishness has played out in abortion rhetoric has changed since the launch of the Pro-Life Amendment Campaign (PLAC) in 1981. 1998).2. See further Catherine Hall. is one of the rationales behind the legal restriction of abortion in Ireland. and nationalists generally identify as Irish. while Scottish and Welsh are referred to as such rather than as British. Further reproduction prohibited without permission. Robert Young. English and British are often used interchangably. Multicultural States: Rethinking Difference and Identity (London: Routledge. For a thoughtful account of the complexities and particularities of the British/Irish dyad. Colonial Desire. 1996) 65-77. 41 a perceived need which plays on Ireland's desire to distance itself from its former colonizer. reflecting a slippage between English and British which is common to the history of British imperialism. in David Bennett (ed. other times it is constructed as Irish/British. (London: Routledge. 25 Reproduced with permission of the copyright owner. The Post-Colonial Question Common Skies. 67. In Irish studies. The Irish/British dichotomy is further complicated by the Northern Irish context where unionists generally identify as British. but post-coloniality is a history that has been put to work in the effort to keep Ireland abortion free. and that the way in which it does so is affected by the influence of other objective features of abortion law in particular contexts. As Ella Shohat has argued. In the second part of this chapter. and by the character of the subjective interaction with abortion law in those contexts. Ireland's historical experience of colonization cannot in itself explain why Irish abortion law is so restrictive. If feminists understand how this has come to be. we will be in a better position to counter those anti-abortion arguments which both implicitly and explicitly invoke the exclusion of abortion as a nationalist mark of pure Irishness. This chapter seeks to locate post-coloniality by identifying how post-colonial critique might contribute to a feminist explanation oflrish abortion law.us to theorize the effects of colonialism when it is no longer the dominant historical narrative without positing colonialism as a transhistorical force. Further reproduction prohibited without permission. I examine different examples of pro-life arguments which identify Ireland's experience of colonization as a motivation for their conservative position on abortion law. . I argue that post-coloniality informs these arguments as a historical object. though the unresolved conflict over British presence in Northern Ireland operates as a constant reminder of its colonial heritage. and 26 Reproduced with permission of the copyright owner. This chapter also seeks to locate post-coloniality by exploring its significance in the context of the Republic of Ireland. now post-colonial for nearly eighty years. geopolitically. "the concept of the 'post colonial' must be interrogated and contextualized historically. supra note 42. 44 Shohat. Ann Kaplan. Ashcroft eta!. referring to The Empire Writes Back at 2. 45 42 43 Ella Shohat. significant differences between their processes of colonization. and the Portuguese. While European powers. and Helen Tiffin. "Notes on the Postcolonial". (London: Routledge. 45 The authors justify their omission of Irish. E. comments: "the authors expand the term 'post-colonial' to include all English literary productions by societies affected by colonialism". and between their relationships with other European countries may be lost when 'Europe' is referred to generally as the colonial power. contextual approach to defining colonial and postcolonial relationships. The problematic consequences of using such general categories as colonial Europe in post-colonial studies become more obvious when they contribute to the evacuation of the historical experience of colonization within Europe itsel£ While The Empire Writes Back post-colonial. Gareth Griffiths. Post-colonial critique risks losing its critical impact if it operates at too general a level. played key colonial roles. 1995) ll-32 at 14. 1989). and Michael Sprinker (eds). Welsh. the Dutch.. 44 43 is often criticized for the overinclusiveness of its definition of the that same definition was underinclusive to the extent that it omitted Irish literature from its survey of post-colonialliteratures. The Empire Writes Back: Theory and Practice in Post Colonial Literatures. the French. and at 3031. Identifying how Ireland's history as a former colony affects contemporary abortion politics provides one opportunity for post-colonial critique to develop a more specific. Bill Ashcroft. See also Aijaz Ahmad. I agree with Luke Gibbons when he says: "This remarkable statement (which does not appear to include Ireland as . (1992) 31/32 Social Text 99-113 at Ill. and Scottish literatures from their survey with the following comment: "While it is possible to argue that these societies were the first victims of English expansion. at 102. supra note 43 at 33. "Postcolonialism: What's in a Name?". Locating post-coloniality within an Irish context has the provocative effect of rupturing the general evocation of Europe as 'the' source of colonialism. Late Imperial Culture (London: Verso.42 culturally" if it is to avoid obscuring the multiplicity of possible perspectives within the 'post-colonial'. in Roman de Ia Campa. such as the English. their subsequent complicity in the British imperial enterprise makes it difficult for colonized peoples outside Britain to accept their identity as postcolonial". 27 Reproduced with permission of the copyright owner. . Further reproduction prohibited without permission. As Aijaz Ahmad points out. at 26. hybrid. and global) which inform the relevant literature. thus erasing in the process the entire indigenous population . the ruling Anglo-Irish interest. 28 Reproduced with permission of the copyright owner. We need. While I believe that postcoloniality is relevant to the critical theorization of Irish abortion law. contemporary one ofthose countries 'outside Britain') only makes sense if one identifies the Irish historically with the settler colony in Ireland. 46 Ahmad. . I do not think that it can provide a complete critical explanation. Rather I agree with Aijaz Ahmad when he argues: "we must also recognize that the effort to organize our thoughts along the singular axis of colonialism/postcolonialism creates more problems that it resolves. 46 Just as colonial and postcolonial sites have sometimes been construed too broadly. Luke Gibbons.a view closer in fact to Commonwealth than postcolonial literature". supra note 44. The historical post-colonial One of the first ways in which the term 'post-colonial' appeared as a theoretical category was in Marxist work which sought to theorize the significance of the moment of decolonization for a Marxist theory of the state. so too has the critical category of the post-colonial occasionally been invoked too generally. 1996) 171-180 at 174. I identify three different conceptions of the post-colonial (historical. in his Transformations in Irish Culture (Cork: Cork University Press. Further reproduction prohibited without permission. rather. my engagement with post-colonial theory in developing a feminist critique of Irish abortion law has provided me with an opportunity to reflect on how we might locate the post-colonial as a category of theoretical critique. Through a critique of these different conceptions of the post-colonial I develop the idea of post-coloniality as a historical object.Finally. to combine this particular distinction with many others in order to produce an integrated knowledge of a particular phase of global history". "Unapproved Roads: Ireland and Post-Colonial Identity". Hamza Alavi used the term 'postcolonial' in his 1972 New Left Review article: "The State in Postcolonial Societies: Pakistan and Bangladesh" 48 to theorize the particular implications of the historical rupture that occurred through decolonization. it is possible that an earlier incarnation of post-colonial critique might speak to some of the problems that are being identified with contemporary postcolonial studies. This sort of a theoretical approach has two main advantages for my purposes. reprinted in Kathleen Gough and Hari P. some of the particularities of more recent post-colonial work may be thrown into relief by comparing and contrasting the definition of the post -colonial invoked in both sets of debates.. eds. He wanted to contribute to a historically grounded theory of the state by suggesting how Marxist concepts and categories could accommodate the historical event of decolonization. ( 29 .47 post-colonial studies shows little evidence of engagement with these earlier debates. 1972) 34 New Left Review. His approach to the post-colonial had two historical aspects to it. 1973). It is useful therefore to recall the theoretical work that this conception of the post-colonial was called to do. And he focused on a historically specific instance of decolonization in investigating the theoretical significance of the postcolonial moment in Pakistan and Bangladesh. Imperialism and South Asia (New York: Monthly Review Press. Alavi's post-colonial analysis was historical at both an abstract and a concrete level because both his conceptual apparatus and his object of inquiry accommodated historical specificity. Shanna. It insists on the need for theoretical categories to work through the challenges that historical 47 48 Ibid. Therefore. For another. For one thing. Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. . This process of learning is best achieved by balancing the systematic application of theoretical concepts against the empirical assessment of their relevance. colonial conquest. it does not necessarily follow that the end of colonialism means the end of colonialism's effects. supra note 42: and Eve Darian-Smith. Some post-colonial critics have argued against a historical conception of the postcolonial. There are two problems with such objections in my view. Shohat.g. "Postcolonialism: A Brieflntroduction". Because such a descriptive 49 For example. 30 . neither of which are consistent with a critical theoretical perspective. nationalist uprising. but rather is always in the process of learning. In clarifying the theoretical framework which my post-colonial critique should adopt then. and try and overcome the disadvantages. and acquisition of independence) in the order of their happening. I want to hold on to the advantages of historical specificity and theoretical application which Alavi's post-colonial analysis displays. Not only does this post-colonial critique expect that changes will occur in its object of inquiry. Secondly.changes pose. (1996) 5(3) Social and Legal Studies 291-299.49 The main thrust of such arguments is that the 'post' in 'post-colonial' should not be interpreted as signifying the end of colonialism because this implies that colonialism can have no effects in its own aftermath. it accepts that theoretical knowledge such as Marxist knowledge is never a complete knowledge. A chronological account of events which marks the shift from the colonial to the post-colonial simply lists such events (e. The only historiographical approaches which might imply this are chronological or idealist. Firstly. it demands that its own critical apparatus account for and accommodate such changes. Further reproduction prohibited without permission.Reproduced with permission of the copyright owner. . The problems of such an equation for a historical conception of postcolonial critique become obvious when Shohat goes on to discuss some of the shortcomings of the term 'postcolonial': 50 Shohat. 5° In one sense the post-colonial is a relatively new addition to those concepts which work theoretically as a form of explanation. as if working historically precluded working philosophically or theoretically. It is interesting that Shohat characterizes this tension as one between philosophical and historical teleologies in the 'postcolonial'. ibid. But this kind of descriptive. the post-colonial is a descriptive marker of the aftermath of a significant historical event. I think that it is this tension between chronological descriptive and critical theoretical senses of the 'post-colonial' that Shohat is getting at when she comments that the post-colonial has two different sets of concepts with which it resonates. In so doing she equates history with descriptive chronology. or post independence. One set of concepts consists of those associated with assumed advances in intellectual history such as post-structuralism etc. In the other sense. chronological approach to the post-colonial is clearly at odds with a critical theoretical approach which tries at some level to explain how and why events signifying the end of colonialism happen and the differences they make. . at I 0 I. post war. while the other consists of those associated with the aftennath of particular historical events. Further reproduction prohibited without permission.history does not make any effort to explain possible connections between apparently discrete events it could be construed as implying that the end of colonialism means that colonialism has no relationship to events which occur after that end. 3I Reproduced with permission of the copyright owner.. political. Panama. it lacks a political content which can account for the eighties and nineties style US militaristic involvements in Granada. To argue therefore that a historical conception of the post-colonial is inadequate because it cannot accommodate the continuing influence of colonialism in the post-colonial moment. undermining colonialism's economic. Further reproduction prohibited without permission. I argue that it is only if post-colonial is understood in chronological or idealist historiographical terms that it carries the problematic implications that Shohat outlines. the term 'postcolonial' when compared with neo-colonialism. and Kuwait-Iraq. The 'postcolonialism' inadvertly glosses over the fact that global hegemony. A post-colonial critique which seeks to explain the after-effects of colonialism does not deny that inequalities in international power relations has survived colonialism.5 1 However. ibid. at 105. An idealist historiographical approach to the post-colonial might also imply that the end of colonialism means that the colonial has been transcended in such a way that it cannot have effects on that which follows. .The term 'postcolonial' carries with it the implication that colonialism is now a matter of the past. and for the symbiotic links between US political and economic interests and those oflocal elites. and cultural deformative-traces in the present. Such an idealist representation of the historical postcolonial ought to be rejected as a possible component of the critical concept of the post- 51 Shohat. persists in forms other than overt colonial rule. even in the post-cold war era. Once a particular concrete 'eruption' of colonialism has come to an end colonialism becomes an abstract force again. no longer affecting the actual situation in which it formerly played a part. may be to assume an idealist representation of the historical significance of the move to the 'post'. comes equipped with little evocation of contemporary power relations. 32 Reproduced with permission of the copyright owner. As a signifier of a new historical epoch. Idealist historiography represents history in terms of eternal and unchanging abstract forces which erupt momentarily in particular places and times. But the addition of the prefix 'neo' without further explanation does not indicate why and how neo-colonialism is a new form of colonialism any better than the prefix 'post' alone clarifies the theoretical difference between colonial and post-colonial. They argue that the idea of neo-colonialism better encapsulates the contemporaneity and continuity of the forces being critiqued under the rubric of the post-colonial. of their Feminist genealogies. Legacies. such as Shohat. In the first place. have suggested that neo-colonialism is to be preferred over post-colonialism as a conceptual term. the merit of neo-colonialism as a conceptual term is held to be that it allows us to think of colonialism as having new forms. Movements". colonia/legacies. "Introduction: Genealogies. as I have argued above. to argue that the term post-colonial cannot adequately communicate the effects of colonialism in its own aftermath is to problematically assume that either an idealist historiography underpins post-colonial critique. In the second place. or as recolonization as Alexander and Mohanty propose.colonial because it cannot take account of the way in which actual conditions both give rise to and change historical forces. . 1997) at xvii. Some critics. If contemporary capitalist exploitation of former colonies is to be categorized as neo-colonialism as Shohat suggests. 33 Reproduced with permission of the copyright owner. To simply assert that colonialism has new outlets without accounting for the production of such new outlets or their connection with colonialism is to lean too closely towards an idealist historiography. democratic futures (London: Routledge. 52 without an explanation 52 M. I am sceptical about the merit of replacing 'post-colonial' with 'neo-colonial' as an analytical term which captures the idea that colonialism has aftereffects. Jacqui Alexander and Chandra Talpade Mohanty. Further reproduction prohibited without permission. a working definition of colonialism would probably note that it involves the political control over and economic exploitation of certain territories (peripheries) by others (metropolitan centres).of why particular practices are new fonns of colonialism. Imperialism itself has also changed through these developments. between colonialism and neo-colonialism. Stucliffe (eds. in R. 34 . imperialism has outlasted decolonization. while colonialism preceded the modem fonn of imperialism. a shift which is signified theoretically through the increasing 53 Harry Magdoff. as well as the connection. then the rubric of neo-colonial risks representing colonialism as an eternal force which rears its head in different contexts and periods but does not itself substantially change.). 1972) 143-169.colonialism can be both related to and distinguished from colonialism by defining it as an imperialist mechanism in post-colonial conditions. As Magdoff has clarified. "Imperialism without colonies". Colonialism became a mechanism of imperialism primarily in the late nineteenth century when it contributed to the development of monopoly capitalism in Western Europe by securing markets in the colonies. The fact that most colonies have since achieved political independence has not meant that imperialist relations of socio-economic dependency and international labour division have also ended however. Owen and B. This task has been hampered by the conflation of imperialism and colonialism. Studies in the Themy of Imperialism. London: Longman. 53 The many varieties of colonialism mean that it is impossible to claim that one model fits all. however. For the purposes of clarification. Imperialism on the other hand refers broadly to the international relations of advanced capitalism. Thus neo. The key to avoiding this idealist trap is to theoretically account for the production of the distinction. Further reproduction prohibited without permission.Reproduced with permission of the copyright owner. . Aamir Mufti and Ella Shohat (eds. Further reproduction prohibited without permission. as is the case with a post-colonial critique of Irish abortion law after 1983. . and Postcolonial Perspectives. since each has a distinct role in the task of explaining the complexity of international relations.54 the advent of new types of international economic and cultural relationships should not blind us to the fact that the development of such relationships is not in itself new. As an analytical tool. While post-colonial captures the effects of formally ended colonialism. 1997) 173-187. Dangerous Liaisons: Gender. When the moment of decolonization is more remote from the object of inquiry.). (Minneapolis: University of Minnesota Press. neo-colonial should not replace post-colonial. and how they relate to each other. Nation. neo-colonial captures the effects of processes by which international divisions of labour are maintained without formal territorial control. in Anne McClintock. As Stuart Hall has argued. is enhanced. From decolonization to post-coloniality Alavi's theorization of post-coloniality focused on decolonization as the significant moment of historical rupture. 35 Reproduced with permission of the copyright owner. "The Local and the Global: Globalization and Identity". once the historical struggle for 54 Stuart Hall. Some post-colonial theorists have suggested that the conception of the post-colonial which is dominant in contemporary cultural studies is an attempt to analyse relations after decolonization.use of globalization as a framework in which to theorize the cultural and economic relationships between different parts of the globe. By maintaining a theoretical distinction between post-colonial and neo-colonial the possibility of illuminating different aspects of particular situations. other historical changes will come to have an effect on how social relations respond to a history of colonization and decolonization. When the purpose of decolonization has been substantially achieved and formal independence has been established. The way in which nationalism responds to colonial history in the moment of decolonizing struggle will not be the same in a moment beyond decolonization when some other political struggle. 5 The way in which colonial history is relevant for contemporary social relations will change as particular social struggles alter the terrain on which colonial history gets constructed. rather than a space 6 clearing gesture or challenge to colonialism. "Is the Post. Further reproduction prohibited without permission.in Postmodemism the Post. One way of thinking about Alavi's contribution is to consider his project in this important article as having traced the effects of decolonization as an historical subject on the state as an historical object. is assuming a more prominent social role. or between colonized peasantry and the bourgeoisie)". and is more an historical object which is acted on and changed.independence has become more remote.in Postcolonial?" (Winter 1991) 17 Critical Inquiry 336-357 at 348. 352. between colonized women and men. 56 36 Reproduced with permission of the copyright owner. 55 Appiah has also suggested that the post-colonial is a space clearing gesture after anti-colonial nationalism. Sixty years after the moment of decolonization. such as pro-life politics. argue£ that the post-colonial has emerged after or out of decolonization: "The 'post-colonial' also forms a critical locus for moving beyond anti-colonial nationalist modernizing narratives that inscribe Europe as an object of critique. however. Shohat. at 106-107. supra note 42. the 55 Shohat. Kwame Anthony Appiah. decolonization is less an historical subject acting on and changing Irish society. for example. toward a discursive analysis and historiography addressing decentred multiplicities of power relations (for example. . Decolonization is a subjective force responding to objective conditions of colonization. While Alavi theorizes decolonization as a historical subject. post-coloniality becomes one aspect of the objective conditions to which other subjective forces respond. he was explaining the difference that decolonization meant to what he saw as its primary object. complicating and expanding the site of post-colonial critique in this way simply builds on Alavi's work by extending the tracing ofpost-coloniality's effects beyond and within the state. I am more interested in the effects of post-coloniality on the law and on the civil society groups which have engaged with law in their efforts to shape the legal regulation of abortion.experience of being colonized shifts from being a driving force of social change to becoming a condition of the particular society's existence. Not just state the While Alavi traced the effects of decolonization on the state. such a move requires a qualification of Alavi's critique since he made certain assumptions about the relationship between the post-colonial state and civil society. and more with the specific entities of law and of those groups and individuals that have made legal interventions in the area of abortion. the state form. My study is less concerned with the state per seas a general form. 37 . When Alavi argued that the post-colonial state was characterized by a military-bureaucratic apparatus. my project requires a theorization of post-coloniality as a historical object. On the one hand. On the other hand. Once decolonization has been achieved. For some social forces post-coloniality is a more proximate objective influence than others. Reproduced with permission of the copyright owner. . Further reproduction prohibited without permission. 38 . In the Irish post-colonial context which I am examining however. the indigenous bourgeoisie. The authors of legal interventions are closer to the subject side of the subject/object relationship in my analysis of Irish abortion law. at 17-21. This kind of co-operation between state law and a particular section of civil society in the post-colonial period merits further investigation and suggests that a historical conception of post-colonial state/civil society relations should not assume that the former necessarily represses the latter. effectively inhibiting the latter's proper constitution. this characterization is problematically influenced partly by his adoption of a Milibandian instrumentalist reading of a Marxist theory of the state (which draws on the Communist Manifesto rather than Marx's later works to argue that the capitalist state manages social relations on behalf of the whole bourgeoisie). and partly because he overgeneralized from the specific context of Pakistan and Bangledesh. This characterization of the post-colonial state implies there is a structural tendency for the post colonial state to dominate civil society. as distinct from the state being an object 57 Alunad. but I will just focus on one that is useful for my purposes. As Ahmad has pointed out. civil society associations have exerted a strong influence on the parliamentary state in the realm of abortion policy. 57 Ahmad comments on a variety of reasons why this characterization is problematic. and the landowners.Alavi characterized the post-colonial state as having a military-bureaucratic apparatus which autonomously mediated the competitive but collaborative relations between the three classes of the metropolitan bourgeoisie. supra note 44. Reproduced with permission of the copyright owner. . Further reproduction prohibited without permission. Woman.coloniality has effects as a subject or as an object or as a combination of both.). Nira Yuvai-Davis. Anne McClintock. the Student Unions. and to explain what accounts for such differential impacts. Imperial Leather: Race. . There is also a need to clarify if post-coloniality has differential impacts as a subject/object. and Flora Anthias (eds. as part of the objective conditions in which those changes have occurred. Some requests for legal intervention in the shape of the pro-life amendment made explicit reference to Ireland's postcoloniality as part of the motivation behind an anti-abortion law. 1995). and the Attorney General have all acted as legal subjects in the sense that they have engaged with and chang d abortion law.coloniality on particular socio-legal processes one ought to clarify the degree to which post. post-coloniality has had an impact on those subjective legal interventions to differing extents. Bodies such as the Pro-Life Amendment Campaign. 58 58 See for example. I 989).of decolonization for Alavi. when investigating the effects of post. On other occasions. Gender and Sexuality in the Colonial Context (New York: Routledge. Therefore. In these instances postcoloniality is part of the explanation for why such legal interventions are sought.Nation. Further reproduction prohibited without permission.State (London: Macmillan. Feminists have drawn attention to the ways in which colonial and nationalist ideologies both draw on and shape gender relations. 39 Reproduced with permission of the copyright owner. Not class just Alavi's focus on the military-bureaucratic form of post-colonial state and its mediation of class interests does not easily provide an explanatory framework for the postcolonial state's negotiation of gender relations. As an object. post-coloniality provides some understanding of how particular legal interventions justified themselves. or as a mother bereft of her children. she says "political transgression was branded as sexual transgression". Nationalist ideology in tum has celebrated womanhood as having a key role to play in producing loyal foot soldiers. Declan Kiberd. 40 . "Defining their Role in the New State: Irish women's Protest Against the Juries Act of 1927". 60 One of the ways in which the newly independent Irish state asserted its independence and authority was by rolling back legal rights which women had had under the colonial regime. 61 Maryann Gialanella Valiulis.Colonial desire to civilize the natives has sometimes meant that women. Valiulis documents how the rolling back of women's rights began with the introduction of the option of opting-out of jury service for women in 1924. 1993) at 12. Hanafin argues that the 59 See Geraldine Meaney. 59 That gendered construction of the nation has had material effects. Colonial desire to subdue the natives has also justified itself through paternalist representations of the native population and country as feminine in their need for masculine control and authority. Ireland has a long history of being gendered female in both colonial and nationalist imaginaries. Nationalism has called those foot soldiers to the task of throwing off colonial power by representing the nation as a woman in distress. have been targetted as the appropriate bearers of the 'right' social standards and moral values. 60 Lynn Innes. (Dublin: Attic Press. Innes notes how women who participated in anti-colonial protests in Ireland were arrested and charged with prostitution. just 61 two years after the establishment of the Irish Free State. 1996). ( 1992) I 8( I) Canadian Journal of Irish Studies 42-60. regarded as responsible for social and cultural reproduction. Woman and Nation in Irish Literature and Society. Sex and Nation: Womem in Irish Culture and Politics. 1880-1935 (London: Harvester Wheatsheaf. 1991). Inventing Ireland: the literature of the modern nation (London: Vintage. Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. . these trends appear to suggest resources for theorizing the differential impact ofpost-coloniality on abortion law and on social movements engaged with that law. a reaction which helps explain the exclusion of gay sexuality from Irish national identity. 41 . As well as multiplying the sites of post-colonial analysis. (1998) 7(3) Social and Legal Studies 409-429. As Bhabha has articulated. the period of post-coloniality has extended beyond the moment of decolonization to the aftennath of decolonization.hypennasculinity of the young Irish nation state was a nationalist reaction against having being feminized as a colony. 62 A historical conception of the post-colonial needs to accommodate the fact that the rupture that decolonization produces is likely to be signified by realignments of gender and other social relations as well as by those of class. and on social movements such as nationalism and fundamentalism. "Rewriting Desire: The Construction of Sexual Identity in Literary and Legal Discourse in Postcolonial Ireland". One of the ways in which some contemporary post-colonial critics have analysed the effects of post-coloniality has been through the observation and critique of cultural products as hybrid. Given that I have identified the Alavi-style approach to the post-colonial as having the shortcomings of being exclusively focused on the locus of state in the moment of decolonization. hybridity is an effect of colonial power which "is the name for the strategic reversal of the process of domination through 62 Patrick Hanafm. The hybrid colonial post- More contemporary engagements with post-coloniality have moved away from the state as an object of post-colonial analysis to explore the effects of post-coloniality on literature and other cultural products. Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. . even before we resort to empirical historical instances that demonstrate their hybridity". that hybridity loses its historical connection to colonialism altogether by becoming equivalently relevant for all. at 112. sometimes having a contingent connection to colonial history. in his The Location of Culture (New York: Routledge. On occasion however. at 38. where a claim is made that cultural hybridity can be a stepping stone for the international community. hybridity is an ambiguous term. 65 It is in moments like these. In these various references of Bhabha's. For example he says: "It is only when we understand that all cultural statements and systems are constructed in this contradictory and ambivalent space of enunciation. at 37. 63 Hybridity is the result of the colonizeds' intervention into their own process of colonization. Bhabha has ambitious hopes for the recognition of cultural hybridity. 64 Ibid. sometimes having a necessary connection to colonial history. These ambiguities do not necessarily prove problematic when hybridity is 63 Homi Bhabha. that we begin to understand why hierarchical claims to the inherent originality or 'purity' of cultures are untenable. he seems to prioritize the role of language over history in producing hybridity. 65 Ibid. . 1994) 102-122. 42 Reproduced with permission of the copyright owner. while Bhabha's conception of hybridity initially appears to depend on historical context. 64 So. that historical context sometimes becomes a secondary theoretical consideration. and sometimes having no connection to colonial history at all. "Signs Taken for Wonders". he sees it as a means to articulating an international culture. Bhabha's categorization of hybridity as a necessary effect of symbolization in a particular colonial cultural context identifies both language and history as the two key components in the production of hybridity.disavowal". Further reproduction prohibited without permission. the Hindu revivalist movement in India has justified non-interference with the domestic sphere by arguing that the family is a pure cultural space uncontaminated by the public nature of colonialism. 66 In this guise. Feminist Legal Studies and the Postcolonial Project". and the claim that colonial power totally represses and silences native cultural traditions. hybridity has proved a useful conceptual tool for feminist critiques of law and policy as a means of disputing claims of cultural authenticity. "Turning the Gaze Back on Itself: Comparative Law. at 112: "If the effect of colonial power is seen to be the production of hybridization rather than the noisy command of colonialist authority or the silent repression of native traditions. 67 Empirical sociological analysis has shown that most Indians do not live in joint families even though the joint family is assumed to be the dominant family model. ( 1997) 2 Utah Law Review 525-544. Such studies reveal the joint family as an ideological entity which has significant effects on people's lives and is incorporated into law and policy even though it does not represent actual families. As Brenda Cossman has argued.applied as a theoretical construct to empirical situations which do have a colonial history. then an important change of perspective occurs." 67 Brenda Cossman. Bhabha sees hybridity as a refutation of both the claim that there are inherently original pure cultures. The joint family model came to be ideologically dominant in law through the colonial government's 66 Ibid. Cossman has shown how hybridity can add to this ideological critique by drawing attention to the way in which the joint family model is a product of a colonial intervention. But they do make it difficult to elaborate at an abstract level an explanation for aspects of and changes in such colonial situations. For example. 43 . the notion of cultural hybridity provides feminist critique with a conceptual apparatus for tracing the production of the dominant ideological form of the family through the colonial encounter. . Further reproduction prohibited without permission.Reproduced with permission of the copyright owner. has an ahistorical dimension it can only be minimally instructive about how hybridity works in post-colonial Indian society. However. A recognition of such cultural hybridity in the joint family model therefore disarms the claim that it ought to be defended as an emblem of pure Indianness. Therefore. when one examines more closely how hybridity is theoretically defined in this analysis . Because the concrete level of analysis .and not because hybridity particularly theoretically incorporates a postcolonial history.as the product of multidirectional transnational flow between the West and the non-West 69 - the connection between hybridity and a historical experience of colonialism becomes less clear. Defined in this way.the case study of the joint family model .acceptance of Sir Henry Maine's representation ofit as the chief model of familial relations 68 in India. Further reproduction prohibited without permission.the joint family model . I would argue that this 68 Ibid. But because the abstract level of analysis . hybridity becomes a generalized concept relevant to many transnational cultural interactions. while I agree that such post-colonial case studies of cultural hybridity have produced useful critical knowledge of particular social practices. .the theoretical construction of hybridity . The use of hybridity to theorize a historically post-colonial context works here mostly because the post-colonial history comes through in the application ofhybridity to an actual post-colonial object. 44 Reproduced with permission of the copyright owner. at 534 69 Ibid. and loses the theoretical sense of being produced by a historical shift through colonialism.has a historical dimension this application of a hybrid critique is instructive at the concrete level in clarifying our knowledge about how the joint family model came to be ideologically dominant in post-colonial Indian society. at 536-7. at which point it becomes difficult to say that the theoretical aspect of hybridity. Hybridity also provides a helping hand to the task of critiquing those who seek to legitimize gay and lesbian sexuality by claiming its incorporation within an Indianness that is Hindu to the exclusion of Muslims. at 358 . Hybridity facilitates a critique of the Hindu Right's attempts to repress minority sexualities by characterizing them as Western and excluding them from Indianness. Sexuality and the Law" (1999) 8(3) Social and Legal Studies 353-368. In the face of exclusionary cultural tactics. Ratna Kapur has also identified hybridity as a key tool for contesting the cultural essentialism which pervades the sexuality debates in contemporary post-colonial 70 India. '"A Love Song to Our Mongrel Selves': Hybridity. hybridity clearly provides a means of conceptualizing opposition and defence. Kapur argues that culture is hybrid when it is not "stagnant 71 and fixed but is constantly shifting and fluid". rather than the case-study aspect.occurs when the practice actually does have a post-colonial history. when post-coloniality is an historical object for the practice in question. Drawing on Stuart Hall. Without such specificity at the theoretical level there is nothing to limit its potential application to other empirical situations. is contributing to the production of such knowledge. this is also true of any number of cultural phenomena. While it may be true that cultural hybridity which is produced through contact with colonization is constantly shifting and fluid. 71 Ibid. it becomes clear that there is little about the concept which ties it at an abstract level to the effects of colonialism. However. When cultural hybridity is represented in 70 Ratna Kapur. when we look at how Kapur defines hybridity. 45 Reproduced with permission of the copyright owner. . Further reproduction prohibited without permission. Kapur goes on to argue. but they do not have the means to specifically explain why such a return is impossible. Hybridity. hybridity . not simply about its production". 73 Ibid.as a category of post-colonial critique . as useful as it is in the sexual debates and the culture wars. Here Kapur is conscious that her advocacy of hybridity could be read as an embracing of any cultural exchange no matter how problematic the forces which have contributed to its production. does not mean that I want the deployment of hybridity to amount to a celebration of the imperialism that helped produce it.redefines postcoloniality. Such general notions of hybridity and postcoloniality may still be useful for arguing against those who want others to return to an 'uncontaminated' state. Recognizing that one cannot return to a set of uncontaminated values could be a feature of any number of cultural moments from a sense of lost childhood innocence through ageing.such general tenns. again drawing on Hall. Kapur qualifies her 'love song to hybridity' by remarking: The celebration of hybridity is not intended to reflect the position of an uncritical native infonnant or an uncritical position on the history of imperialism. 46 . At the end of the article. at 363. She clearly states that post-colonial engagements with hybridity ought to incorporate a critique of the role of imperialism in producing such hybridity. It is important to remember that postcoloniality is about a 73 critique of imperialism that produced hybridity. to a sense that even feminist separatism cannot escape patriarchy. that cultural hybridity represents the post-colonial moment which is the "point of recognition that a return to a set of uncontaminated values is impossible". In making 72 I bid. 72 Here the post-colonial moment has become generalized beyond any condition of emergence from colonization. . Further reproduction prohibited without permission.Reproduced with permission of the copyright owner. While both are forms of hybridity. colonial in the first instance and post-colonial in the second. When Bhabha speaks of the colonizeds' mimicry of the colonizer as an effect ofhybridity.this claim Kapur provides a clue as to how her notion of hybridity has become generalized even though she wants it to remain tied to a critique of imperialism. while I acknowledge that hybridity has served in useful ways in particular concrete analyses I have two objections to its theoretical status. It is only by differentiating such different aspects of hybridity and by paying attention to the particular circumstances of its production that a sufficiently complex theoretical account of post-coloniality can be developed. .the sexuality debates between cultural nationalists and queer and feminist activists in 1990s post-colonial India . The historical context. The historical context in which she is tracing cultural hybridity . 47 Reproduced with permission of the copyright owner. rather than a feature of post colonial discourse which is the way in which Cossman and Kapur interpret and use it. Therefore. or why cultural analysis would not come to the 74 Bhabha. I fail to see why a generalized cultural hybridity should be located within the particular theoretical framework of post-colonial critique. supra note 63. When Bhabha discusses hybridity in such essays as "Signs Taken for Wonders"/ 4 hybridity is a feature of colonial discourse.is at a significant temporal and geo-political distance from the cultural hybridity produced during the imperial settlement of India. Further reproduction prohibited without permission. they are different forms. power relations and subject positions are different in both instances. Cossman and Kapur speak of cultural nationalists' claims of authentic Indian cultural values as hybrid. at 13.can be disproved in any specific sense. if hybridity theorises the effects of transnational flow in general then it is reductive to suggest that hybridity is a post-colonial theoretical category since hybridity encompasses more than post-colonial instances of 75 76 Aijaz Ahmad. Shohat. "The politics ofliterary postcoloniality" (1995) 36(3) Race and Class 1-20. But. it cannot accommodate historical specificity as a theoretical construct. the practice which it represents arose historically with transnational flow between cultures. While the concept of 'hybridity' might have arisen within the historical context of the emergence of post-colonial theory. There is no way in which a generalization of this order . 75 When hybridity works at such a level of generality.namely that in circumstances of transnational movement cultures bear the marks of their encounter with other cultures. .conclusion that hybridity poses anyway. hybridity itself defined in such broad terms does not lend us the conceptual apparatus with which to theorize these changes. 76 Although there have been historical changes in the production of transnational flow.colonial theory? We could say that post-coloniality is a specific instance of transnational flow between cultures. The question then becomes: if hybridity is so general a concept why should it be tied to the particular critical task of post. for example. To paraphrase Aijaz Ahmad. when the basic idea that informs cultural hybridity is so general it can only be treated as a truism. Shohat comments. that the notions of hybridity and syncretism were invoked in a Latin American context by diverse modernisms in the 1920s well before the terms emerged in the 1980s as key concepts of post-colonial theory. supra note 42 at 108-9. as former colonizer and former colonized renegotiate their relationship in conditions of formal independence. Further reproduction prohibited without permission. .48 Reproduced with permission of the copyright owner. The object of a global post-colonial critique does not necessarily have a post-colonial history. Turkey for example. This is exactly what happens. However. The global colonial post- In a third kind of post-colonial analysis this inconsistency between the theoretical and the practical levels of analysis is resolved not by making the theory more historically specific but by generalizing the practice. I suggest that we rein hybridity in and reassert its theoretical connection to colonialism as a historical process. 49 Reproduced with permission of the copyright owner.transnational movement between cultures. can become the object of a post-colonial analysis of hybridity. it has not necessarily been produced through the formal ending of colonialism. when post-colonial becomes a global category. If the practice of wearing the veil in countries which not only were not colonized but were imperial. It only becomes theoretically consistent to figure hybridity as a post-colonial theoretical category if post-colonial itself becomes generalized beyond its historical boundaries. Any social practice can be substituted for a post-colonial object. I argue below. can be theorized in post-colonial terms. Further reproduction prohibited without permission. the analysis is no longer post-colonial in any historical sense. then post-colonial becomes a metaphor. rather than generalize the empirical so that it fits a generalized theoretical. . Once both the object and the theoretical framework of the analysis are removed from historical moorings in conditions of post-coloniality. colonialism is the Anglo-American feminist interpretation of veil-wearing which identifies it as evidence of Muslim women's patriarchal oppression rather as an act of feminine resistance to patriarchy. (1992) 26 New England Law Review 1527. Thus the reader is left at a loss to understand whether the post-colonialism of which she speaks is that of an Algerian post-colonial fundamentalism which constructs the wearing of the veil as evidence of cultural authenticity even though it was actually introduced by the colonial forces.Abu-Odeh. A conception of post-coloniality which operates as a metaphor for the world represents particular social conditions as the effects of post-colonialism whether or not those social practices were historically produced through the ending of colonialism. or whether post. I am less clear about how her study is useful as an example of post-colonial critique. While I find Abu-Odeh's analysis insightful and helpful as a feminist intervention in its revelation of different possible interpretations of women's cultural practices. Rather she discusses how some women's practice of wearing the veil as an act of refusal to the male gaze is evidence of a feminist interpretation. She refers generally to the wearing of the veil in Muslim societies but does not tie it to any particular post-colonial society. explores different ways of reading the wearing of the veil in her post-colonial feminist critique. or whether she thinks post-colonialism is sufficiently broad to combine the two. for example. 50 . One of 77 Lama Abu-Odeh. "Postcolonial Feminism and the Veil: Considering the Differences". 77 She suggests that the wearing of the veil should not be simply or automatically read as evidence of feminine submission to a patriarchal cultural demand that women should hide themselves. .Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 79 Bhabha comments: "Postcolonial criticism bears witness to the unequal and uneven forces of cultural representation involved in the contest for political and social authority within the modem world order. at 171. See further Ahmad." 80 As a generalized global category. Eve DarianSmith characterizes post-colonialism as a critique of modem forms of domination whose insight lies in understanding how the past informs the present. and Aijaz Ahmad. supra note 63 171-197. "The Postcolonial and the Postmodem: The question of agency". For example. everything is flattened into a sameness. If post. Imagine if critical race theory and racism were spoken of and used as one and the same? 80 Homi Bhabha. In its global manifestation. post-colonial is a metaphor for whatever forces produce domination and unequal relations of power. Bhabha refers to a post-colonial world in "The Commitment to Theory". in his The Loction of Culture. The most it can offer is a critique of processes of domination. The use of the word 'postcolonialism' to name the practice of criticizing postcolonial conditions and practices. 79 Darian-Smith. supra note 63 at 21. and it becomes impossible to see or anticipate change.colonial refers to the world. supra note 75 at 9. then it is no longer a category which has any theoretical connection to the end of colonialism. post-colonial theory is limited to operating at a very broad level of generality. Socialist Register 1997 (London: Merlin Press. When postcolonialism functions as both critical and oppressive practice any distance between critique and the object of critique is lost. "Post- colonial Theory and the 'Post-' Condition". 1997) 353-381 at 365-367.the ways in which this metaphorical conception of post-coloniality has been put to work is in the increasingly common references to 'the post-colonial world' or 'the global condition of post-coloniality' in the literature. to name the systemic force which produces post-colonial conditions and practices is further indication of the theoretical and methodological confusion that results from the loss of historical structure. 78 Such references make explicit the direction in which the dominant strain of post-colonial theory has been heading for some time. rather than. or sometimes as well as. supra note 49. global conception of post-coloniality has 78 For example. Once its object becomes the world. I would argue that a metaphorical. or to some global condition. 51 . In other words. the post-colonial simply becomes a generalized category describing and criticizing global conditions. . Further reproduction prohibited without permission.Reproduced with permission of the copyright owner. it cannot explain much about the specificities of post-coloniality. As Dirlik argues: Postcoloniality's repudiation of structure and totality in the name of history ironically ends up not in an affinnation of historicity but in a self referential. 52 .little critical weight. at 3 I. The problem here may be the problem of all historicism without a sense of structure. cultural complexes. post-colonial methodology is confused. supra note 44. Without a web of 81 Ahmad. that is the effects of colonialism after independence. If I adopted such a conception in critically analyzing Irish abortion law I would not be able to distinguish between different problematic dimensions of that law since post-coloniality would be the generalized explanation for them all. Aijaz Ahmad has expressed the problem with positing such a metaphorical conception of postcoloniality in these tenns: The fundamental effect of constructing this globalized transhistoricity of colonialism is to evacuate the very meaning of the word and disperse that meaning so widely that we can no longer speak of detenninate histories of determinate structures such as that of the postcolonial state. such as India. 82 Therefore. if those specificities are simply instances of a global condition which is the projection of a post-colonial subjectivity. the new but nationally differentiated labor regimes. "The Postcolonial Aura: Third World Criticism in the Age of Global Capitalism (1994) 20 Critical Inquiry 328-356 at 340. legislations. Dirlik has also trenchantly criticized the global. universalizing historicism that reintroduces through the back door an unexamined totality. 82 ArifDirlik. 81 etcetera. He comments that specific problems in the historiography of post-colonial societies. the role of the state in reformulating the compact between the imperialist and the national capitals. get conflated with general problems of a global condition called post-coloniality in post-colonial discourse. metaphorical aspects of post-coloniality. it projects globally what are but local experiences. Reproduced with permission of the copyright owner. . Further reproduction prohibited without permission. justice (not just representation) and ethics as the issues central to our analysis of globalization". and local." Even efforts to overcome the generalizing defects of post-colonial theory occasionally stray into globalizing language. memory. 83 heterogeneous.translocal relationships. Alexander and Mohanty say: "we foreground a paradigm of decolonization which stresses power. relational analysis. If more or less any society can claim to be post-colonial the significance of having endured and emerged from having one's territory ruled by a power external to that territory is 83 84 Ibid. Alexander and Mohanty. I think there are two potential problems with this tethering of decolonization to global and transnational conditions. at 345. supra note 52 at xix . thereby undermining their distinctive critical potential. One of the political effects of ripping post-coloniality from its historical moorings is that the harm that was and is done through colonialism is appropriated and dissolved. They suggest that decolonization should be the primary analytical tool for globalization and transnational feminism. 84 Here they 'foreground' decolonization as the paradigm for feminist praxis in global contexts and for the analysis of globalization. it is impossible to determine what is different. A paradigm of decolonization likewise cannot accommodate all that is globalization unless it is understood as a synonym for globalization. history. While decolonization is an important aspect of feminist struggle in its effort to overcome the subordinating effects of colonialism. decolonization cannot grasp all that is feminist praxis unless it is used as a metaphor for that practice. a move which erases the specificity of both feminism and decolonization. 53 Reproduced with permission of the copyright owner. . Further reproduction prohibited without permission. I do not think that it is necessary to insist that colonialism still exists in order to criticize social injustices in a post-colonial society.belfasttelegraph. 86 Jeannine Purdy.evacuated. (1995) 17(3) Loyola of Los Angeles International and Comparative Law Journal737-764. If post-colonial critique is to maintain a critical edge then its task must be to explain how colonial histories are interpreted and put to work in post-colonial conditions. See for an earlier analysis: J Scott Tiedemann. Interestingly one of the first actions of the new Northern Irish Assembly was to pass a Democratic Unionist Party motion to prevent the extention of the 1967 Abortion Act to Northern Ireland.uk/. some rejections of post- colonial as a historical concept seem anxious to retain the idea of continuing colonialism in conditions of formal sovereignty because they can then claim the moral authority of an anticolonial position in order to criticize contemporary situations which they find problematic. "The abortion controversy in the Republic oflreland and Northern Ireland and its potential effect on unification". The Belfast Telegraph. They can be criticized on their own terms. As Purdy argues. "Factions unite in abortion debate".co. 19 June 2000. While I agree that an anti-colonial position is morally superior to a pro-colonial position. given the injustice and suffering produced through the enforced rule of a people by an external authority. "Postcolonialism: The Emperor's New Clothes? (1996) 5(3) Social and Legal Studies 405426. available at http://www. Furthermore. not the other way around. The label should follow the criticism. 54 . See Chris Thornton. The post-colonial marriage to poststructuralist theory is instructive in so far as it helps us to understand the significance of contemporary readings for the meaning of past events. when post-colonial becomes a general descriptor it refuses recognition to those situations of continuing colonialism.85 or native communities in North America or Australia. 85 Although the introduction of devolved government may change this fonnal situation. such as Northern Ireland. 86 Interestingly. I believe it hinders knowledge production and struggles against injustice to label something in order to criticize it. Further reproduction prohibited without permission. .Reproduced with permission of the copyright owner. produces post-coloniality. interpretation through language and discourse in the moment of reading is not the only determinant of meaning. Therefore. The problem then is to retain a sense of historical structure within the post-colonial while accommodating a diversity of cultural negotiations of the post-colonial. 55 Reproduced with permission of the copyright owner. If colonialism never ends then what advantage can there be to adopting a post colonial critique? In other words.Colonialism is given a particular meaning when read through a post-colonial narrative. the achievement of independence. When colonialism is displaced as the dominant historical narrative. post-colonial critique loses its critical capacity unless it works historically. A post-colonial critique which divorces itself from the historical conditions of its production cannot account for the role of history in constructing the meaning of the practices which post-colonial critique sets out to theorise. . post-colonial critique can contribute to our critical knowledge of historical events by showing how the legacy of colonialism is given meaning through a post-colonial reading. The 'post' in post-colonial only becomes theoretically significant when one adopts a historical understanding of post-coloniality. Post-coloniality becomes the objective condition in which those historical fragments are read. The possibility of a post-colonial reading is brought about through a historical shift from colonialism to post-colonialism. Unless the 'post' signifies a historical change it becomes redundant. This is what post-colonial theory forgets when it strays from a historical self understanding. But. and how social practices are informed by such post-colonial readings. its components scatter and become historical fragments which haunt the new dominant post-colonial historical narrative. The historical event that is the end of colonialism. Further reproduction prohibited without permission. it would be able to account for the afteraffects of colonialism in conditions of post-coloniality. 56 Reproduced with permission of the copyright owner. Brushing post-colonial history against the grain means accounting for the fragmentation of colonialism as a once dominant historical narrative now displaced.Post-coloniality as a historical object If a historical conception of post-coloniality adopted the version of materialist historiography which Walter Benjamin has outlined. On this interpretation of history we can begin to understand how the colonial construction of the Irish as Roman Catholics. Benjamin's metaphor allows us to conceptualize the co-existence of historical structure and fragmentation. H. We can also account for the distinction between different sorts of mobilizations of post-coloniality as a justification for abortion law. 1973) 256-66. Hannah Arendt trans. . Further reproduction prohibited without permission. Although those fragments no longer keep that dominant narrative together. They can also provide substance for newer historical narratives to appropriate and mould. Zohn (London: Fontana. continues to have effects even when that colonialism has come to an end. "Theses on the Philosophy of History". and theorized postcoloniality as 'brushing history against the grain'. they still haunt now dominant historical narratives. A history against the grain suggests that it is important to understand how the potential of social movements has not been exhausted simply because they were not victorious. If post-colonial critique has anything to offer the critique of Irish abortion 87 Walter Benjamin. for example. A history against the grain allows us to understand how anti-abortion groups can perceive themselves as marginalized and put history to work in addressing that perceived marginalization. 87 for example. in his Illuminations ed. he thought that the object was primary in the sense that it is possible. . no matter what it may be in itself. that it is when post-colonial theory offers a historical conception of post-coloniality which theorizes history against the grain. "Subject and Object". I suggest therefore. at 509 57 Reproduced with permission of the copyright owner. He argued that the subject cannot be a subject without incorporating some objective element and that the subject is dependent on the object more than the object is dependent on the subject. to have an object without a subject.) The Essential Frankfurt School Reader. anti-abortion strategy and more an objective force which ties 88 Theodor Adorno. This conception of an object draws on Adorno's discussion in "Subject and Object". is subjectively captured by means of a fixed concept. Hence the resistance offered to defining by subject and object."88 Although Adorno clearly saw subject and object as mediating each other. Post-coloniality is an object of abortion law in the sense that it is a feature of Irish society that informs subjective interventions into Irish law to greater and lesser degrees. albeit perhaps a weaker dependency than the subject's dependency on the object in Adorno's view. he also argued that "If the object lacked the moment of subjectivity. The fact that post-coloniality has such a differential impact on arguments made about abortion law indicates that it is less a subjective force mobilizing. providing coherence and substance to.law. Further reproduction prohibited without permission. 89 Ibid. (eds. potentially if not actually he says. (New York: Continuum. On the other hand. its own objectivity would become nonsensical" 89 indicating the object's dependency on the subject. in Andrew Arato and Eike Gebhardt. where he comments: "Defining means that something objective. 1993) at498. The AngloNormans. adopted Irish customs and language. Although the presence of the 58 . For others. racism . Although some might argue that Ireland's colonization began with the arrival of the Anglo-Normans in 1169. a trace which cannot be erased. that law must first of all be a product of a society which has experienced two historical processes: colonization and decolonization. Post-coloniality Politics as a Motivation for Abortion For the sort of post-colonial critique which I defend to be relevant to the analysis of Irish abortion law. a condition whose effects cannot be eradicated. or 'Old English'. As a historical object post-coloniality is always there.the greater Dublin area. post-coloniality is a less proximate objective influence. women having abortions. As a historical object.subjective activity to the conditions of its existence in some way. But the extent to which post-coloniality is a relevant feature of legal interventions depends on the character of the subjective interaction with it. patriarchy. pro-choice groups. A sense of English governance was only really felt within the Pale . the Attorney General. and have been referred to 'as more Irish than the Irish themselves'.and on its relationship with historical subjects .pro-choice and pro-life movements. the more plausible view is that Ireland's colonization was achieved primarily through the conquest by the 'New English' in the seventeenth century. post-coloniality is a proximate object. such as Richard Greene or Youth Defence (discussed below). post-coloniality is part of the background of Irish abortion law.capitalism. For some subjects of abortion law. lived peacefully alongside the native Irish. But the degree to which post-coloniality has effects on social and legal practices depends on its relationship with other historical objects . Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. . Church and State in Tudor Ireland. 92 to Curtis's documentation of Victorian sterotypical depictions of Irish Celts as dangerous ape-men or 90 See further: Donnchadh 0 Corrain. through the political control and economic exploitation of external territories. On Colonialism. The consequences of Ireland's colonization have been discussed and debated in a variety of contexts. Three of the many events which made up this long and complex colonial process which have taken on a particular cultural resonance as signifiers of Irish colonialism are: 91 the Penal Laws. and Brehon law90 finally supplanted by English law. "Women and the Law in Early Ireland". However.). These measures set in train a process that would eventually culminate in the establishment by the nineteenth century of an English landlord class. in Mary 0' Dowd and Sabine Wichert (eds. the fact that the native Irish retained substantial economic and cultural control until the 1600s challenges the claim to pre-1600 colonization. Queen's University Belfast. 1959) at 330. Although colonial processes differ over time and space. Chattel. and the Great Famine. Green and Co. the Act of Union. A History of the Penal Laws against Irish Catholics. State and Society (Belfast: Institute of Irish Studies. Servant or Citizen. civil rights taken away. it is this process of building a strong capitalist nation-state. 59 Reproduced with permission of the copyright owner.. Further reproduction prohibited without permission. all in the name of privileging Protestantism over Catholicism. 92 Karl Marx and Fredrich Engels. (London: Longmans. (Moscow: Progress Publishers. . that particularly characterises colonialism. during the seventeenth century lands were confiscated. such as Ireland. 1995) 45-57. Women's Status in Church. from Marx's view that English emancipation through the overthrow of the landed aristrocracy would be impossible without the routing of its 'strongly entrenched outposts in Ireland'.'Old English' had important implications for the eventual colonization of Ireland. such as England. 91 See further: Robert Dudley Edwards. 1935). Under this Treaty the Southern twenty six counties of Ireland became recognized as the Irish Free State while the Northern six counties remained part of the United Kingdom. George Boyce. Through partition that part of Ireland which was to become the Republic and whose abortion law is the object of this dissertation was decolonized.93 simianized agitators. as the second necessary condition for a post-colonial critique. But the formal establishment of an independent Southern Irish state in 1921 was the key moment of decolonization for my purposes since it signified the formal beginning of the end of British political control of Southern Ireland. came about after the War of Independence when the Anglo-Irish Treaty was signed in 94 1921. 1776-1997 (London: MacMillan 1999). Apes and Angels. A more thorough account of the evidence of Irish colonization is beyond the scope of this chapter. Curtis. Decolonization. . The process of establishing Independence was to continue through the 1930s . 94 See further: D.with the adoption of the 1937 Constitution which declared Ireland sovereign . 93 L.P. Although the economic and cultural effects of the colonial relationship would continue to have an impact on Irish policy-making. Decolonisation and the British Empire. these short comments are intended merely to indicate that the first necessary condition for a post-colonial critique can be fulfilled. (Newton Abbot: David and Charles.and through the 1940s when Ireland withdrew from the Commonwealth and declared itself a Republic in 1948. 1971). 60 Reproduced with permission of the copyright owner.The Irishman in Victorian Caricature. Further reproduction prohibited without permission. the moment in which Ireland begins to be recognised internally and externally as author of its own policies is significant in marking the beginning of national responsibility for the living conditions of Irish subjects. 61 Reproduced with permission of the copyright owner.In the post-colonial aftermath of decolonization and colonization. Abortion is a wrong that the English do to the Irish in the same way as colonial conquest was a wrong that the English did to the Irish. ( 1998) 60 Feminist Review 61-83. 95 A colonial history continues to have contemporary effects in a number of ways. 96 This slogan clearly constructs abortion as a weapon that England uses against Ireland. supra note 45. a wrong which demands not only recognition but vengeance. although Ireland may be a first world country. I also argue that the varying ways in which this is done demonstrate how the colonial experience can take different ideological forms depending on how it intersects with other aspects of its social context. Ireland: Between the First and Third Worlds (Dublin: Attic Press. these processes become referents which help make sense of new social developments. One of the pro-amendment posters displayed during the Pro-Life Amendment Campaign bore the following slogan: "The Abortion Mills of England Grind Irish Babies into Blood that Cries out to Heaven for Vengeance". 96 Cited in Lisa Smyth. it has a third world memory. not least by creating the background social conditions out of which new developments emerge and by providing the social material which such new developments remould for their own purposes. Abortion is also a means by 95 Gibbons. . see also Carol Coulter. The violent and bloody language here associated with abortion invokes memories of violent and bloody struggle between a colonizing England and a colonized Ireland. 1990). In the remaining section of this chapter I identify some of the ways in which the campaign to seek constitutional protection for embryonic and fetal life has used the Irish experience of British colonization to support its demands. As Luke Gibbons has put it. Further reproduction prohibited without permission. "Narratives of Irishness and the Problem of Abortion: The X Case 1992". from the provision of abortion in England. in other examples of pro-life rhetoric a post-industrial service oriented conception of colonial England emerges as anti-abortion advocates stress how abortion is a service which exploits Irish women as it provides profits for English service providers and their Irish agents. as it does from the external English provision of abortion. This particular postcolonial depiction of English abortion mills in the 1980s is significant both because it clearly identifies abortion as a colonial tool and because it contrasts with the more subtle construction of abortion as a traitorous service which although evident in the 1980s becomes more dominant in the 1990s. They also clearly depict the threat as stemming from an external source. The reference to 'mills' indicates that it is an industrial conception of colonial England that is being conjured up here to demonize abortion. . Whereas.which the English control Irish population growth. a title which Tom Hesketh subsequently took for his book 62 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. the quality press referred to abortion as a means of politically dividing the Irish nation. During the height of the PLAC the Irish Times carried an editorial entitled: "The Second Partitioning of Ireland". In this example. In the latter instance the threat stems as much from internal Irish sources. While pro-life activists represented abortion as a violent colonial tool of population control. anti-abortion advocates use an industrial conception of colonial England to symbolize the wrong of abortion. This point is relevant to my argument that there are changes in the way in which the representation of English colonialism is put to work on behalf of conservative abortion policy. as I discuss below. such as pregnancy counselling centres. The PLAC allowed the Irish people to inscribe their constitution with a 'pro-life' ethos at the same time as it left national accommodation of moral diversity unresolved. . 63 Reproduced with permission of the copyright owner. divided the South into those who saw constitutional support for fetal rights as a necessary measure to shore up traditional social values. The 97 Hesketh. The 1921 Treaty enabled a young Irish nation state to emerge from the British colonial regime at the same time as it left the nationalist project unresolved by maintaining Northern Ireland as part of that colonial regime. the PLAC. The first partitioning. and the splitting of the Republic of Ireland into pro-referendum and anti-referendum camps. The PLAC is recognized as an agent of division and compared to the agent of division that was the 1921 Anglo-Irish Treaty. The second partitioning. the 1921 Treaty. divided Ireland into a Roman Catholic dominated South and a Protestant dominated North. But in the same moment that division and exclusion are recognized in this comparison of PLAC and the Treaty. 97 This title clearly refers to the partitioning of Northern Ireland from Southern Ireland under the 1921 Anglo-Irish Treaty as the first partitioning. Further reproduction prohibited without permission.subtitled "The Abortion Referendum of 1983". It draws an analogy between the splitting of Ireland into an independent South and a British ruled North. the instability and irresolution of those measures also become obvious. the pro-life amendment lobby is aligned with the Roman Catholic South of the first partitioning as the anti-amendment lobby is aligned with the Protestant North. supra note 40. and those who saw PLAC as a sectarian amendment dominated by Catholic ideology. In calling the PLAC the second partitioning of Ireland then. the judiciary justifies the decision to grant injunctions stopping the distribution of information about abortion clinics abroad on the grounds that such activity is assistance in the destruction of the life of the unborn and therefore infringes Article 40 3 3 of the Constitution. though one was far more violent than the other. it does share a recognition of abortion as a means through which public values are symbolized. The acceptance of the Treaty triggered a one year long civil war. These two representations of abortion in the days before the adoption of Article 40 3 3 bring to light the interpretation of abortion as a cultural wrong and the identification of abortion as a means of cultural differentiation. In the abortion information cases of the late 1980s. we lose such explicit references to abortion law as a means of differentiating Irishness from Englishness. Further reproduction prohibited without permission.exclusion of pro-choice values from Irish law becomes necessary for the maintenance of Irish national culture just as the exclusion of the North was necessary for the emergence of the Irish nation-state. and PLAC caused a bitter two year campaign. Both processes of exclusion were extraordinarily divisive. however. and as a means of celebrating Irishness. Once the forum in which the constitutional right to life of the unborn is being interpreted becomes a legal forum. . While abortion law itself does not share colonial references with popular representations of abortion. One of the interesting aspects of these decisions from a legal point of view is their assumption that a const tutional right to life of the unborn requires the censorship of abortion information. They also reveal how Ireland's colonial history is that which helps these representations make sense to the general public. The courts failed 64 Reproduced with permission of the copyright owner. In enforcing the fetal right to life as ifthere were no conflicting constitutionally protected interests. its law officers. Further reproduction prohibited without permission. . ought to be accommodated when determining whether the provision of abortion information was constitutional or not. 65 Reproduced with permission of the copyright owner. or the democratic value of free speech. law constructed an exclusive public interest in fetal life. The High Court judge in the X case had referred to the rapist as a 'depraved and evil man'. what sort of State has it become that in 1992. The public interest in fetal life emerged as the key legal mechanism by which Ireland was to kept free from contamination by abortion.to substantively consider how the constitutional protection of other rights. 98 The Irish Times. however. its courts are mobilised to condemn a fourteen-year-old child to the ordeal of pregnancy and childbirth after rape at the hands of a 'depraved and evil man'? With what are we now to compare ourselves? Ceausescu's Romania? The Ayatollah's Iran? 98 Algeria? There are similarities. the oppressive underside of Article 40 3 3's celebration of Irishness was revealed. such as freedom of expression. An editorial in the Irish Times expressed the shock and dismay displayed in Irish society at what the Eighth Amendment had produced: What has been done to this Irish Republic. 18 February 1992. Thus while anti-abortion policy was being represented in public discourse as a necessary measure in order to protect Irish culture. This public interest was incapable of accommodating other public interests such as the protection of women's health. the courts constantly referred to the 'public interest' in protecting fetal life. its police. its full panoply of authority. When the Attorney General sought and the High Court granted an injunction stopping a pregnant fourteen year old rape victim from travelling to England to terminate her pregnancy. In the crisis moment of the X case. By depicting the X case decision in terms of the Republic's virtual imprisonment of a young vulnerable child. 66 .The action that the Irish State had taken in stopping this young rape victim from travelling for an abortion is clearly understood here as a barbaric action. Such barbaric action has equally clearly produced shame and distress among those whom the State claims to represent when it acts in such a way. 17 February 1992. The Irish Times. the perceived need for a conservative abortion law can no longer function as a mechanism by which Ireland represents its difference from its former colonizer since that law has itself now been revealed as the author of barbaric oppression. the British government introduced a policy of internment without trial. the cartoon was clearly critical of what had happened. But what is even more interesting for my purposes is that the image played on the history of British internment in Northern Ireland in order to make its criticism. In the wake of the re-emergence of the Troubles in Northern Ireland in the late 1960s. As a result of this State action the Republic oflreland can no longer claim membership ofthe modem West having remade itself in the image of more fundamentalist and authoritarian regimes. Under the internment policy many nationalist and republican activists who protested the presence of the British in Northern Ireland or campaigned for 99 Martyn Turner. 99 The cartoon described the child as being interned in the 26 counties of Ireland as a result of the High Court decision in the X case. A second important symbolic representation of the X case at the time was a cartoon on the front of the Irish Times which depicted a young girl with a teddy bear on a fenced-in map of the Republic of Ireland. Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. . In interpreting Article 40 3 3 as permitting abortion in this case. . The X case proved that the Irish nation state had learned to behave as barbarously as its former colonizer was capable of acting in the still colonized Northern Ireland. the Court was mindful of its responsibility to respond carefully to this crisis.civil rights for the Catholic minority were imprisoned without trial for months or years. 100 See Smyth supra note 97 at 71. As the judges gave their reasons for their decision their sense of frustration became clear. Since X had expressed the desire to commit suicide the Court held that there was a real and substantial risk to her life justifying a right to abortion. In casting the High Court decision as an internment of X. Further reproduction prohibited without permission. There was another kind of crisis to which the court responded. the cartoon suggested that the very Republic with whom Northern Ireland internees identified was acting as oppressively as the British colonial regime had acted in the Northern Ireland of the 1970s. and anger at the legislature for its failure to provide a regulatory framework for Article 40 3 3. 100 The legal response to this sense of shame at the barbaric action of stopping X travelling for an abortion was to overturn the High Court decision. In a 4/1 majority decision the Supreme Court ruled that X had a right to abortion and could not be stopped from travelling abroad in order to obtain one because her life was at 'real and substantial risk'. The Court responded to the X case crisis by straying slightly from an objective. The Court interpreted Article 40 3 3's reference to the equal right to life of the mother as permitting abortion where there was a real and substantial risk to the life of the mother. 67 Reproduced with permission of the copyright owner. neutral mode of discourse in order to express distress at the effects of legal intervention on X. born of public disquiet. The Amendment. but it is an issue which has made the consequences of legislative inactivity painfully clear. X supra note 1 at 82. In 101 Attorney General v. The absence of a clear legal regulatory regime for abortion had contributed to this situation and itself symbolized a critical failure of the state to provide legal guidelines for its citizens.Amendment which partitioned Ireland for the second time. it is inexcusable. recognizes how the Eighth Amendment served to divide the Irish people he also notes how the Irish nation state has failed one of its responsibilities as a parliamentary democracy. Abortion is by no means the only issue on which the legislature has been found lacking in the area of reform. McCarthy J. What are pregnant women to do? What are the parents of a pregnant girl under age to do? What are the medical profession to do? They have no guidelines save what may be gleaned from the judgments in this case.. historically divisive of our people. remains bare of 101 legislative direction. apart from the crisis of X being stopped from terminating her pregnancy.·.. McCarthy J. The. guaranteeing in its laws to respect and by its laws to defend the right to life of the unborn. In the same moment that McCarthy J. This second sense of crisis was about the status of abortion law itself. uses particularly harsh language to criticize the legislature's 'inexcusable' failure to legislate on abortion. has now brought to light a failure on the part of the Irish nation state to execute the legislative responsibilities for which it fought so hard. commented: In the context of the eight years that have passed since the Amendment was adopted and the two years since Grogan's case the failure by the legislature to enact the appropriate legislation is no longer just unfortunate. A lack of legislative leadership has meant that Ireland has not been able to heal the wound caused by the Eighth Amendment's division of its people. 68 .however. Further reproduction prohibited without permission. .Reproduced with permission of the copyright owner. However. of information. This subsection shall not limit freedom to travel between the State and another State. it had increased her suffering. Voters were asked to accept or reject the following clauses as amendments to Article 40 3 3: It shall be unlawful to terminate the life of an unborn unless such termination is necessary to save the life. As a matter of procedure. of the mother where there is an illness or disorder of the mother giving rise to a real and substantial risk to her life. it had failed to provide a legal framework for the regulation of such complex situations. This subsection shall not limit freedom to obtain or make available. Further reproduction prohibited without permission. subject to such conditions as may be laid down by law. In November 1992. 69 Reproduced with permission of the copyright owner. in the State. information relating to services lawfully available in another State. the legal response to the X case crisis made clear two failures on the part of the Irish state. it had not only failed to protect and serve one of the most vulnerable of its members. and on the so-called 'substantive' issue of abortion. two key reforn1 initiatives occurred. as distinct from the health. the judiciary fails to take responsibility for their own role in producing this crisis. not being a risk of self-destruction. .noting that this crisis might have been avoided if the legislature had taken on the role of legal reform more courageously and more thoughtfully. The X case showed that the post-colonial Irish nation state had failed to live up to the political and legal responsibilities of its independence. though. In the aftermath of the X case. As a matter of substance. and that it was capable of acting with as much oppression and authoritarianism as any colonial regime. so that the Attorney General felt himself obliged to seek this injunction against X. a referendum was held which put three questions to the Irish people on the issues of travel. are increasingly being heard more in terms of the need to prevent abortion service providers from exploiting women versus the need to allow women equitable access to abortion as a basic health service. Arguments for and against abortion that were made in terms of the need to protect cultural values versus the need to accommodate cultural diversity. and through the recognition of a right to abortion where the pregnant woman's life is in danger. while the second and third were accepted. The accommodation of some abortion needs through the legitimisation of travel and information rights. Thus the law on abortion as distinct from the law on abortion information awaits reform. The second major reform which occurred was the passing of legislation which regulated the conditions in which it was permissible to provide abortion information. Given the failure of the amendment dealing with the substantive issue of abortion.The first of these clauses was rejected. the Supreme Court decision in the X case remains the main legal rule governing abortion itself A Green Paper on abortion was published in September 1999 and a parliamentary committee concluded its hearing of public representations on abortion in May 2000. Anti-abortion activists increasingly use postcoloniality to bolster their arguments by suggesting that Irish reproductive health services (such as the Dublin based Marie Stapes clinic or the Irish Family Planning Association) are colluding with British abortion clinics who are only interested in profiting from the provision of abortion 70 . The Act was referred to the Supreme Court for an assessment of its constitutionality and was found constitutional. has punctured the sweeping exclusion of abortion that informed the law up to the X case. Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. . albeit one to which there is sharply restricted access and which ought not to be promoted.youthdefence.Youth Defence Newsletter. emphasis 71 . to recognizing abortion as a medical service. "The Marie Stopes Controversy". One of the ways this shift is public abortion discourse is evident is in the arguments of Youth Defence. Youth Defence constructs the clinic as a wrongdoer by suggesting that the clinic is being flippant in not treating abortion with the appropriate 102 Dr.ie.to Irish women. by organising their transport and accommodation at cut-prices as well as facilitating the abortion itsel£" 102 Youth Defence is clearly denigrating the provision of a service which assists a woman in making the arrangements necessary for terminating a pregnancy in another jurisdiction by using the language of tourism . http://www. Dr.to describe such a service. Jim Loughran.package deals and cut-prices . Pro-abortion activists suggest that it is hypocritical for an independent Ireland to rely on Britain to provide Irish women with the abortion services which they need. available at: added. At the same time as this shift in abortion arguments is occurring. founded in the aftermath of the X case in 1992. that his organisation would provide package deals for Irish women wanting to have their children killed in England. boasted on the Pat Kenny radio show. YD reported a radio interview with an employee of Marie Stopes Reproductive Choices in the following terms: "In November of 1996. law has also changed from constructing abortion as a threat to public values. (1997) So/as. the most militant of the anti-choice organizations. The implication is that the reproductive health clinic is interested in providing this service in the same way that a travel agent would be. the medical director of the newly formed Irish Marie Stopes branch. Sean O'Domhnaill. .Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Frank Crummy. However. Youth Defence rightly find such rationales problematic. They note that Marie Stopes regarded Catholics among others as unfit and that her support for birth control was to prevent the reproduction of those deemed 'unfit'. financial transactions. the manner in which Youth Defence seeks to tar Irish workers at the Dublin based clinic with the eugenicist brush is unjustifiable. is referred to as having an 'equally dubious past' because he was involved in such activities as founding the Language Freedom Movement in the 1960s "which attempted to undermine the Irish language". rather YD feels the need to bolster its condemnation by dressing up the clinic's activities as exploitative. The clinic is doing wrong furthermore because it is selling abortion 'deals' and therefore acting out of a self-interested profit motive rather than out of any interest in the women themselves. 72 Reproduced with permission of the copyright owner.seriousness. their abortion agenda means more than just 'a woman's right to choose"'. Considering that Mrs. Stopes would have regarded Irish Catholics as 'unfit' perhaps. Marie Stopes eugenicist politics have been widely criticized by feminists among others. . It is interesting that Youth Defence does not rest at imputing wrong to the clinic because it facilitates women's abortion choices. 103 103 Ibid. a director of Marie Stopes Reproductive Choices. insensitive. These activities are assumed to be sufficient evidence of his support for eugenic policies: "Loughran and Crummey are both dedicated to the destruction of Ireland's future generations. Further reproduction prohibited without permission. Youth Defence also sought to discredit the Marie Stopes clinic by referring to the eugenicist tendencies that Marie Stopes herself displayed. "Rape Victim case latest in line of battles over abortion". 0'Brien 104 Carol Coulter. He has referred to the Irish Family Planning Association as having 'invaded Erin' in 1969. In 1999. but which is now posed in the form of those working for an Irish based reproductive health clinic. Fr. as Youth Defence picketed the offices of the Irish Family Planning Association (IFPA). founder of Human Life International. a threat which one might have expected from the eugenicist policies of an Englishwoman like Marie Stopes. Father Paul Marx. Marx characterizes the IFPA as having been planted by the IPPF rather than having grown as an indigenous organization. supra note 33 for this co-founder's account of the development of the Irish Famiily Planning Association. Marx apparently does not regard the setting up of an Irish branch of Human Life International in 1994 as an 'invasion' by a foreign organization. 105 See Michael Solomons. 'The abortion agenda' is thus criticized on the grounds that it is a threat to the Irish nation. because it is an affiliate of the International Planned Parenthood Federation (IPPF). has been a frequent visitor to Ireland since the 1970s. 105 Ironically. 104 The IFPA's invasion oflreland is particularly threatening according to Fr. These posters consisted of a picture of 0'Brien with a caption reading 'Exports Irish Babies for Slaughter'. Marx. executive director of the IFPA. 29 November 1997. The Irish Times.Involvement in the provision of abortion services is thus labelled as activity contributing towards the destruction of the Irish race. Again here. 73 . Fr. there was a poster campaign which focused on Tony O'Brien. Loughran and Crummey's betrayal of the Irish nation is affirmed by their association with an organisation founded by an English woman: Marie Stopes. Marie Stopes' support for eugenics meant that she would have regarded Irish Catholics as unfit to reproduce. Further reproduction prohibited without permission.Reproduced with permission of the copyright owner. . Not only does Greene misrepresent 106 Councillor Richard Greene. The proposal that a medico-legal forum supervise the workings of proposed abortion legislation and the limits within which abortions would be authorized was (overwhelmingly) defeated by the audience who were mostly young university students. Councillor Green gave this address at a debate hosted by the youth section of the second largest political party in Ireland. As the church of the oligarchy. at:http://aoife. In November 1998 he commented: The introduction by a minority church. Richard Greene. available on the website ofMuintir na hEireann. These posters also invoke colonial memories by suggesting that O'Brien is involved in the expropriation of Irish resources. it participated in the introduction and operation of the penal laws. and it underestimates the influence of other factors. 74 Reproduced with permission of the copyright owner. self-sacrifice and heroism of many of the minority faith who stood against the evils of colonialism. Dublin. His suggestion that the Church of Ireland ought to bear responsibility for the introduction of abortion into Ireland is reductive in two ways. member of the Green party. and forced the majority population to pay tithes to a minority church. has also used the colonial legacy to argue against a more tolerant. the Church of Ireland. such as public alienation from the socially dominant Catholic Church. Further reproduction prohibited without permission. of something that the majority is opposed to. could well remind people of other evils of a by-gone period that this church was associated with. It overestimates the role of the Church of Ireland ethos in the development of a more tolerant attitude to abortion. the abominable evil of abortion. a Dublin city councillor. and were indeed the instigators of its abolition.indigo/-muintir. caused grinding poverty by landlordism. Other prominent figures from Irish abortion politics also participated. 106 Greene suggests that any public acceptance of abortion in Ireland ought to be understood as the result of Church of Ireland activity. pluralist approach to abortion. (Ireland's Family) the pro-life group of which Richard Greene is a member.and the IFPA are represented as being engaged in a profit-oriented export business rather than as providing for women's needs in a woman friendly way.an uneasy balance". and well known pro-life activist. Trinity College. 24 November 1998. At the same time. we do acknowledge the courage. . Address to Young Fine Gael Society: "Abortion. Pro Ecclesia Dei. Patrick" and ends with: "Alas for Celtic Ireland: the Celtic Tiger eating her own children in the interests of European economics". and believes that Ireland's increased prosperity has made its people more vulnerable to this view. Faul identifies any acceptance of abortion and euthanasia as evidence of the view that non-productive life is expendable. Further reproduction prohibited without permission. The idea that allowing access to abortion destroys Irish culture and the Irish race in the interests of securing material advantage for a pro-choice elite is also evident in Monsignor Denis Paul's article "Celtic Tiger Devours its Young". 107 Monsignor Faul is a prominent public figure in Ireland particularly known for his activity on issues of nationalist rights in Northern Ireland and on pro-life and pro-family issues in the South. In criticising prochoice developments as evidence of growing insensivity and selfishness in Irish society. He is headmaster of St. Northern Ireland. et Pro Hibernia. For Faul abortion is a symptom of Ireland's economic success.the Church of Ireland as the conduit for the introduction of abortion into Ireland. He begins his article saying: "The record of Government in the Celtic capital has been negative to children and to the great Irish Christian culture dating from the time of St. 75 Reproduced with permission of the copyright owner. (1997) 6(3) The Brandsma Review.Pro Vita. "Celtic Tiger Devours its Young". . 107 Mgr Denis Faul. however. Patrick's Academy in Dungannon. he also uses this misrepresentation to persuade his audience that abortion law is as much of a wrong as the Penal Laws were. his target is more the politicians responsible for legislative change than the pro-choice agencies. at 4-5. a success which has been engineered by the European Community and which is actually destroying Ireland's indigenous culture and race. In law this ideological shift from representing abortion as a threat to cultural homogeneity to abortion as a trade in services which are exploitative of women plays out as a restriction of activities that certain pro-choice organizations were perceived to be carrying out. that is the making of an appointment with an abortion clinic by a pregnancy counsellor. On the other hand. • if the information is truthful and objective. Abortion referral. are acting lawfully in that place. A distinction between abortion information and abortion referral was drawn in the legislation which was introduced to legitimate some provision of information about abortion services. • if the information and the method and manner of its publication are in compliance with the laws of that place. The Supreme Court upheld this legislation as constitutional. the 1995 Act provided that it was not unlawful to publish or procure the publication of Act information relating to services which are lawfully available in a particular place or to persons providing them in a particular place: • if the information relates only to services which are lawfully available in that place and to persons who. in providing them. The display of abortion information and the distribution without solicitation of anything containing abortion information were also made unlawful. The contradiction present in this legislation between types of information becomes more intelligible when we realize that the legislature and the court were trying to 76 . the 1995 Act forbids economic relationships between Irish agencies and foreign abortion service providers. was prohibited in the interests of preventing the promotion or advocacy of abortion. Furthermore. and • does not advocate or promote and is not accompanied by any advocacy or promotion of the termination of pregnancy. Reproduced with permission of the copyright owner. . Further reproduction prohibited without permission. and disapproval of agencies which provide that infonnation. At times the British/Irish opposition has represented Irish culture as a homogenous whole needing to be protected from British pro-choice value systems. and women who abort as a cultural threat.accommodate support for the availability of abortion infonnation. Irish post-coloniality as a representational strategy for conservative abortion law changes as the social material put to work in fonning that representation changes. anti- 77 Reproduced with permission of the copyright owner. So while the postcolonial opposition between Britishness and Irishness has operated to represent abortion as a cultural wrong. and so the focus of attention has shifted more explicitly to pro-choice reproductive health services. The legal protection of abortion infonnation is compromised by a legal desire to condemn those service organizations involved in making that infonnation available. Further reproduction prohibited without permission. the manner in which that opposition has worked has varied. A distaste for the perceived 'advocacy' work of pro-choice services explains the contradiction in the law between legal infonnation and illegal referral. at other times it has represented Irish culture as a more fragmented network of practices which is threatened by particular kinds of alliances between Irish and British agencies who want to trade in and promote abortion for their own gain. The increased prosperity in Ireland since the mid 90s has also meant that consumption practices are part of the social material that post-coloniality can draw on in order to ideologically construct itself. . The X case has meant that it is no longer possible to represent all women homogeneously as a cultural threat. In constructing abortion as an exploitative British service with which Irish pro-choice agencies are colluding. These shifts in the way in which Irish post-coloniality works to construct abortion as a cultural wrong suggests some questions which the critical theoretical category of post coloniality needs to address.abortion groups use the increase in provision and consumption of services to suggest that abortion is a classic example of capitalist exploitation. but also for changes in the representation of that historical experience caused both by the impact of other significant historical events and by the impact of the agencies which interpret that history. But the way in which that demand reflects colonial history changes as the post-colonial conditions of Irish society change and as different social groups construct post-coloniality towards their own ends. Post-colonial critique must therefore account not only for the effects of the historical rupture that is decolonization. . A conception of post-coloniality as a historical object is adequate to this task because it insists that the conditions which make post-colonial critique possible are both the historical experience of decolonization and the fragmentation of that experience over time. Ireland's history of British colonization is part of the explanation for the pro-natalist demands made of abortion law. 78 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. • as an occasion where 'maternal' rights will trump 'fetal' rights in order to avoid risking the death of someone like X. • as a medical service which must not be promoted. the different ways in which post-coloniality is represented as an explanation for abortion law trends in the public forum: • to keep Ireland free from contamination from foreign pro-choice values. These particular similarities and differences between social interpretations and legal interpretations of abortion law suggest a need to address what it is about legal form that connects social content with legal content. do bear some connection to the different legal content which abortion has taken: • as an infringement of an exclusive public interest in fetal life. While feminist legal theory has contributed to feminist critique by bringing gender analysis to bear on law and legal practices. it has succeeded less well at bringing legal analysis to bear on feminist theory. legal Form Matters: Contradiction and Change in the Constitutional Status of Abortion I have turned to the concept of legal form in the belief that it can help me make sense of some of the contradictory features of abortion law. • to prevent foreign service providers from profiting from Irish women. While Ireland's experience of British colonization has featured in civil society as a motivation for political attempts to keep Ireland abortion free. On the other hand. Irish post-coloniality has not been offered as a rationale for protecting the right to life of the 'unborn' in the legal forum. If feminism is to identify more specifically the role of .3. • to be ashamed of treating X as if she was a colonial subject. Further reproduction prohibited without permission. .79 Reproduced with permission of the copyright owner. . and the stuff it is made up with. Translated by Barbara Einhorn. I argue in this chapter that theorizing the relationship between the form and the content of law can provide a conceptual framework for assessing the social effects of legal regulation. The content which legal form organizes consists of the social relations between people and things. without falling into the trap of positing a singular conception oflegal form. The content of the limerick is the words which make it up. 80 Reproduced with permission of the copyright owner. For example.law in generating and sustaining the social relations which are the object of its critique. as well as the legal effects of social relations. Pashukanis. As social relations change so does legal form. its content. because it has five lines which follow a rhyming pattern of a. 1978). a limerick is a limerick because of its form. thought that legal fonn organized content by making individuals the owners of things. 108 Evgeny B.b. and if feminism is to assess the impact of its own legal engagement on the conditions of women's lives. The purpose for which legal form organizes social relations emerges from the social relations themselves. Edited and Introduced by Chris Arthur.a. Further reproduction prohibited without permission.b. it needs to understand the particular impact that law has on social relations. 108 whose conception of legal fonn I discuss below. Pashukanis. Once captured by legal form social relations become legal content. but not without that form having effects on the way that change is articulated. Law and Marxism: A General Theory (London: Ink Links. I use the form/content distinction to analytically differentiate the particular shape of a thing.a. its form. Legal form can be recognised therefore by the way it organizes its content into a particular formation. for example. Without a form/content distinction it becomes difficult to account for changes in the relationship between legal and social relations. 111 Ibid. for example. in arguing that law is quintessentially male. Drucilla Cornell believes that abstraction is necessary if feminists themselves are to avoid creating dominances through law. Feminism Unmodified: Discourses on Life and Law. 1989). However. The 109 Catharine MacKinnon. Catharine MacKinnon. is well known for its challenge to the patriarchal assumptions underpinning law.''' The implications of Cornell's views are that feminists ought to use as general and abstract a legal fonn as possible. in order for it to be capable of accommodating a diversity of content. . at 23. 110 Dmcilla Cornell. At the Heart of Freedom (Princeton NJ: Princeton University Press. 110 It is only by preserving abstraction that law can avoid the exclusion that necessarily follows from defining the content of legal values. MacKinnon contributes to feminist legal theory by implicitly warning feminists against using law as if it was an empty form. 1998) at 38-9. 1987. (Cambridge: Harvard University Press. devoid of content and easily adaptable to feminist purposes. Once law ascribes particular content to concepts such as sexual difference or freedom or equality. law becomes an inhibitor of individual freedom. While MacKinnon is critical of legal abstraction because its generality prevents the specificity of male dominance being challenged. which can all have a multitude of possible concrete articulations. Toward a Feminist Theory of the State (Boston: Harvard University Press. Catharine MacKinnon's work.Feminists who have theorized about the significance of legal engagement at a more abstract level have said very little expressly about legal form. she collapses the distinction between fonn and content by depicting both as equivalently patriarchal. 109 In arguing that legal neutrality is actually male bias. Further reproduction prohibited without permission. .81 Reproduced with permission of the copyright owner. ).potential problem with this prescriptive view is that in emphasising the abstract. 115 Doreen McBarnet. Gendered Norms: What is a Spouse?". Crime and Sexuality: Essays in Feminism (London: Sage. particular side. law as male. "The Woman of Legal Discourse" in her Law. (1984) 12 International Journal of the Sociology of Law 231-238. it potentially loses sight of its concrete. as each understands legal form in slightly different terms. Gender. Adopting the 'law as gendered' approach involves asking how gender works through law and how law works to produce gender. Judy Fudge. and law as gendered. Smart comes closest to claiming that law itself has effects on social relations. "Legal Forms and Social Norms: Class. "Law and Capital: The Role of Legal Form and Legal Actors". These feminists' analytical use of legal form is not readily adaptable for my purposes however. Family Forms. Carol Smart has usefully distinguished between three different approaches to law in feminist work: law as sexist. 112 Smart prefers the latter approach to law. 1999) 160-182. general side of legal form. that legal discourse brings gendered subject positions into being. (1982) 10 International Journal of the Sociology of Law 409-417. in Elizabeth Comack (ed. 113 Judy Fudge. (1999) 14(1) Canadian Journal of Law and Society 127-157. 114 Shelley Gavigan. She shows us the difference that a new particular legal definition of motherhood made to the social construction of maternal relations during a particular historical period. so that it is difficult to 112 Carol Smart. but does not explicitly explain what it is about law's relationship with social relations that could produce changes in legal definitions of motherhood. and the Politics of Law and Order". the Royal Commission on Criminal Procedure. 82 . 1995). Locating Law: Race/Class/Gender Connections (Halifax: Fernwood. "Legal Forms. In recognizing that law is a gendering strategy. and Doreen McBamet. 113 Shelley Gavigan 114 and Doreen McBamett 115 represent those few feminists that have engaged explicitly with the notion of legal form or forms in their work. and the Legal Regulation of Women's Work in Canada from 1870 to 1920". "Legal Form and Legal Mystification: An Analytical Postscript on the Scottish Criminal Justice Act. Further reproduction prohibited without permission. .Reproduced with permission of the copyright owner. McBamet directs our attention to the relationship between particular legal mechanisms. and legal practices. Therefore. In "Law and Capital". A second difficulty with their use of legal fonn is that the concept is applied to shed light on significant aspects of socio-legal relations in their case studies.extricate a theoretical conception of legal fonn which could be said to consistently infonn their work. the institutional legal structure. Doreen McBamet argues that it is the use of legal fonn by active subjects and their lawyers which gives it effect. Further reproduction prohibited without permission. McBamet usefully reminds scholars of the particular effects of legal practices and mechanisms. 83 Reproduced with permission of the copyright owner. "Legal Fonn and Legal Mystification". such as clients' litigation and judicial interpretation. 116 She focuses on the facilitative fonn of law and how its generality. but does not clarify her theoretical conception of legal fonn. "Law and Capital". case law discourse provides the subtlest contribution of all to legal mystification. 117 She argues that by virtue of its dual role of providing general legal rules at the same time as deciding concrete factual cases. and legal fonn. Although their analytical application of legal fonn provides many useful insights from which my study of legal fonn has benefitted. they do not feed their analysis into the development of a more abstract conception oflegal fonn which can be adapted for feminist critique. "In Legal Fonn and Legal Mystification". . and reliance on the rule of law can be manipulated. supra note 115. 116 Doreen McBamet. institutional structure. ibid. McBamet looks at the particular fonn of case law. 117 Doreen McBamet. She does not specifically elaborate on a concept of legal fonn but seems to think of it as an amalgam of the ideal of the rule of law. ). 1979) 29-45. Gavigan's analysis is helpful in its guidance towards Pashukanis as a useful resource in theorising legal form. in B. In the first instance it now accommodates same sex couples in response to successful gay activism. is also explicable as a patriarchal response to non-earning mothers. 118 She draws on the conception of legal form as first articulated by Evgeny Pashukanis 119 and later critiqued by Bob Fine 120 in claiming that form analysis allows us to identify how social relations are parsed into legal relations. Gavigan argues that both case studies illustrate the elasticity of the concept of spouse. supra note 108. The continued restriction of matrimonial property rights to legally married couples illustrates that the closer one gets to property. "Law and Class". supra note 114. 120 Bob Fine. and in the second instance it increasingly includes any male co-habitee of a welfare mother. (eds. The legal expansion of spouse so as to tie welfare mothers to the nearest available man against their wishes. and Bob Fine. the less flexible the legal form of spouse becomes. in spite of welfare mothers' protests. Democracy and the Rule of Law (London: Pluto. From deviancy theory to Marxism (London: Hutchinson. She examines how 'spouse' has been legally interpreted in the context of lesbian adoption cases and in the context of single mother welfare cases in contemporary English Canada.. This gender neutrality of the legal concept of spouse should not be taken to mean that patriarchal social relations no longer attribute content to legal form however. Pashukanis. Capitalism and the Rule of Law.Shelley Gavigan is more specific about the theoretical conception of legal form that informs her analysis. 1984). 119 84 . Fine et al. and in its suggestion that restrictions and expansions in legal form are the result of conflicts between the formal equality posited by gender neutral law and the substantive 118 Shelley Gavigan. Further reproduction prohibited without permission.Reproduced with permission of the copyright owner. . because Gavigan identifies both 'gender neutrality' and 'spouse' as legal forms.Pashukanis's commodity form theory . I need to go back to the theoretical framework which Fudge and Gavigan adapted. 85 Reproduced with permission of the copyright owner. and because she identifies property relations as capable of attributing content to legal form. one needs to return to her original theoretical resources in order to identify more specifically the conception of legal form that can explain this relationship. This shift occurred as women were legally released from subordination to their husbands but deemed to require special treatment in the workplace on grounds of their physical and moral vulnerability. Fudge's legal form analysis resonates most clearly with my expectation of the kind of results and method a legal form analysis would provide. She shows how the content which social norms attribute to legal form changes as social relations change over time. In her analysis of the legal regulation of women's employment in Canada between 1870 and 1920. Judy Fudge argues that its legal form was distinct from the 'contract' form of men's employment. Further reproduction prohibited without permission. with the ultimate effect of changing legal form itself. Although she traces the change in the actual legal form of women's employment during a particular historical period.and clarify what it is about legal form that enables it to capture social relations in particular ways. she does not explain what it is about legal form at an abstract level that permits such actual changes. However.inequality of the social relations which that law regulates. gender neutrality and property. . and further that it changed from 'status' to 'protection'. In order to flesh an abstract conception of legal form out. without explicitly explaining the relationship between spouse. legal form's specific content has been produced by capitalist exchange relations. For Pashukanis it is through legal form that human beings become recognized as the subjects of proprietary rights. Pashukanis was specifically concerned with explaining the legal form from a Marxist perspective.From law as a commodity form. So. Marxist theory shows how objects change over time in interaction with the social conditions in which they exist. as the owners of property. Under historically changing capitalism objects assume a form which is detennined by the material content thrown up by a capitalist mode of production. Pashukanis's interest in legal fonn was provoked at least in part by what he perceived to be the inadequacies of the Marxist legal scholarship and of the 'normative school' oflaw of his time. Through identifying the particular content of what are assumed to be general forms. as a product of the material needs of society.. while legal form itself has a specific content it is not empty and waiting to be filled with meaning detennining content . he believed that it was unhelpful to 86 . In general tenns.. The form which legally regulated affairs take however is itself historically detennined. and as a set of historically evolving nonns and institutions. While Pashukanis accepted that such scholarship was a contribution to legal knowledge. one of the central tasks of Marxist theory is to demonstrate the reliance of fonn on content. Law itself plays a distinctive role in driving the wheels of capitalism by giving the social relations which it regulates a particular fonn. The Marxist legal scholarship with which he was concerned had focused on law as an ideological phenomenon. . Further reproduction prohibited without permission.Reproduced with permission of the copyright owner. at 54. . 124 But he believed that a focus on the content of law to the exclusion of a focus on legal form neglected the task of explaining how law itself was a particular feature of social relations. Pashukanis noted that the study of the concrete content of legal norms and the historical development of legal institutions did indeed provide an explanation of what "people at a given stage of development look upon as law". it is not a matter of affirming or denying the existence of the ideology (or psychology) of law. Pashukanis insists on the necessity of juridical concepts (legal relation. 123 Ibid. norm. Further reproduction prohibited without permission. In criticizing Marxist legal scholarship and what he calls sociological and psychological approaches to law. Pashukanis. 122 or only the material content of legal regulation in different historical epochs. He agreed that law was a real phenomenon which had to be explained in Marxist terms. but rather of demonstrating that the categories of law have absolutely no significance other than an ideological one". at 54. and the normative school. But he insisted that legal concepts were more than ideology at work. he is very critical of that body of scholarship which specializes in the study of legal concepts: analytical jurisprudence in general. but he thought that non-juridical concepts could only explain law in very general terms which blurred the distinction between legal and other adjacent realms. 124 Ibid. 87 Reproduced with permission of the copyright owner. subject) for the task of theorizing law and its role in social relations. of 121 "However. 123 He did not dispute that legal concepts were implicated in ideological processes. At the same time. at 55. 121 only a reflection of the material interests of particular social classes.theorize law as is if it was only ideological. they also provided the means by which social relations could be theorized and understood. supra note 108 at 73 122 Ibid. In suggesting that its legal concepts are adequate for the study of a transhistorical world. To say that social relations assume a legal form should mean more than a mere tautology. in particular. He writes: "Law as a form is comprehensible only within its most precise definitions . Yet. However. all these fundamental distinctions will tum out to be mechanistically appended to the basic formula if we expect this to span all epochs and stages of social development". at 86. or of transmitting its form to them. "As it [law] is a social relation in itself. 127 Ibid. formalism cannot account for the intrusion of reality into its own conceptual framework.. 126 Ibid. 128 Pashukanis also faults formalism for fetishizing the norm in such a way that it cannot explain the existence of antitheses within its own formulations. at 59. 129 Pashukanis was interested in teasing out what it means to say that law regulates social relations. at 70. His criticism stems primarily from his objection to the idea that legal concepts can be used to describe and explain law during all periods of historical development.. 128 Ibid.which Kelsen is an exemplar. it is capable of colouring other social relations to a greater and lesser degree. . Pashukanis draws the reader's attention to the fact that conceptual analysis of law begins at the same moment that law becomes differentiated from other normative aspects of the social whole. 125 Ibid. analytical jurisprudence imbues the juridical categories of bourgeois commodity producing society with universality. 126 Secondly. at 58. 125 There are two problems with what Pashukanis identifies as the empty formulae of formalism. Thus 127 analytical jurisprudence forgets its own history. 129 Ibid. . 88 Reproduced with permission of the copyright owner. at 58. 102. Further reproduction prohibited without permission. because it started from the concept of capital as 'accumulated labour in general'. 131 Ibid. 131 As a mystified form. law is tied to the specific social relation which it is representing. As a particular type of regulation of social relations. Although the conditions of capitalism set the context by which law became differentiated from other social realms such as morality. When Pashukanis explains the particular role that law plays in generating and sustaining capitalist relations of 130 Ibid. to the extent that law has a general form. it is because "law represents the mystified form of a specific social relation". at 79.we can never gain access to the problem from this angle if we allow ourselves to be guided by an unclear notion of law as 'form as such'. One of the reasons why Pashukanis's theory is useful for thinking through the particular significance of law for feminist theory is because law is not reduced to an epiphenomenon in his analysis. at 78. and secondly that "under certain conditions the regulation of social relations assumes a legal character". While it is true that the legal form would not exist without the commodity form. just as vulgar political economy was not able to grasp the nature of capitalist relations. law had particular characteristics which were not identifiable simply by the function of regulation. 89 Reproduced with permission of the copyright owner. . law did not emerge merely as a resulting effect of commodity production and exchange but as a fundamental player in providing one of the mechanisms by which commodity production and exchange could proceed. the commodity form needs the legal form to create subjects which can realize the value of the commodity through its exchange in the market. Further reproduction prohibited without permission."130 Pashukanis wants to clarify two things about legal form here. ). law complements commodity production by allowing people to think that they have control over commodities as legal subjects while all the time it is the commodities which are directing them. to the extent that it does not respond directly to the demands of social actors. 132 Isaac Balbus. he does so in terms which identify how legal character transforms social relations.E.M. we have to ask how law produces those intentions and itself has effects on social relations. Rich (eds. also in C. Balbus argued that it is precisely because the law is autonomous in the sense of being independent of the will of social actors that it is not autonomous from the capitalist system of which these actors are agents. "Commodity Fonn and Legal Fonn: An Essay on the 'Relative Autonomy' of the Law" (1978) II Law and Society Review 571-88.production. This understanding of law as a historically produced form which gives the content of the social relations to which it applies a specifically legal character is one which can contribute to feminist legal theory. Rather than thinking of law in a liberal sense as a product of legal officials' intentions or in an instrumentalist Marxist sense as a resulting effect of other social relations. The Sociology of Law (Toronto: Butterworths. Law emerges as a distinct set of social relations at the moment commodity producing society needs a means to mobilize the abstract value of the commodity. the fact that the law is autonomous. In responding to that need. 132 Furthermore. Reasons and R. . the complexity of relations between and among people and things become reduced to the question of who has rights over which object. Once translated into law. Law responds to the need for commodities to be exchanged in order for their value to be realized by creating a class of people who will exchange them. 90 Reproduced with permission of the copyright owner. 1978). Further reproduction prohibited without permission. demands an explanation of its internal dynamics and how they articulate with the systemic requirements of capitalism. Thus Pashukanis suggests for feminist legal theory that law need not be thought of as one part of the state. However. Rather law compromises feminist practice by first creating the conditions for feminist legal engagement. politics. Therefore. law stands closer than politics to those relations. 133 Therefore. Legal relations are clearly not a subset of political relations as far as Pashukanis is concerned. then a political superstructure is necessary as a norm setting authority. Further reproduction prohibited without permission. is a secondary element of the production relations. while the political superstructure. He thought that it only made sense to think of law as an element of politics if you accepted the thesis that law conformed to an objective norm. supra note 108 at 90. or as deriving from the state. and second by translating feminist engagement into legal form irrespective of feminist efforts to challenge that form. If law is that which is authorized by such a norm. This relationship between law. law is derived from politics. Pashukanis agrees with Marx's description of the production relations and law as forming civil society together. in a manner which posits a dcser. law is not an epiphenomenon which is the result of capitalism and its character cannot simply be changed and remoulded by feminist appropriation of law. in this way of thinking about law. . more fundamental connection between law and economics than between politics anrl economics. particularly the official state as the organization of class dominance. 91 Reproduced with permission of the copyright owner. For Pashukanis the legal form is a reflex of the relations of commodity production. when law and politics are theorized in terms of the relations of production. and 133 Pashukanis. feminists have argued that women must have the right to control their bodies. Their critique stems from a Pashukanis-like view that the claim being invoked here is a property right. the argument that women must have their bodily integrity legally respected as a necessary condition of their full participation as free and equal citizens amounts to a demand that women be recognized as full legal subjects. Law turns the feminist claim for women's reproductive autonomy into a claim for women's ownership of their own reproductive capacities. 92 . It suggests that feminist engagement with law needs to consider the market as a more proximate influence on law than the state. a perception which has had a dominant influence in feminist legal studies. Some feminists have criticized the conceptualization of a woman's interest in abortion as a right to control of her body. supra note 12. a right to control one's body as a form 134 See.economics challenges the perception of law as a political instrument. Gerber Fried. In challenging various kinds of restrictions of women's reproductive freedom. for example. the claim that women ought to have bodily integrity and reproductive autonomy has found an appreciative audience. Abortion theory and the commodity form Pashukanis's insight that legal form constructs people as property owners resonates with one aspect of abortion rights discourse. In Pashukanis' terms. 134 The ideal of self-ownership has proved very attractive to women whose reproductive decisions have felt all but their own. When women's potential to determine their own lives has been compromised by collective assumptions about the appropriateness of mothering. Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. . 93 Reproduced with permission of the copyright owner. her body and reproductive capacities. surrogacy. labour. The Sexual Contract (Cambridge: Polity Press. 136 She comments: To extend to women the masculine conception of the individual as owner. 1988). there is nothing distinctive about womanhood.of property. 135 They argue that even if invoking the ideal of self-ownership may achieve some short term strategic gains. autonomy. Boundaries and the Bounded Self' (1990) 30 Representations 162. They argue that while we need to be wary of the power of private property under capitalism to give meaning to a feminist ideal of reproductive autonomy. Property and Personality" (1994) 3 Social and Legal Studies 365. for example. and self-ownership do not necessarily have to assume a Lockean conception of 135 See Margaret Davies. 137 Ibid. etc. other conceptions of property are also available to us historically and culturally. marriage. and the conception of freedom as the capacity to do what you will with your own. in the long term it reproduces a capitalist patriarchal ideal by seeking the extension of masculine self-ownership to women. exclusive. . Rosalind Pollack Petchesky notes that feminist critiques of the idea of women's right to control their own bodies presume that such an idea is informed by a Lockean notion of property which is individual. "Law. that invoking women's right to own their bodies effectively validates their right to sell their bodies through prostitution. Jennifer Nedelsky. She claims that arguments for women's rights to bodily integrity. and instrumental in the accumulation of things. 136 Carole Pateman. Further reproduction prohibited without permission. She stands to her property in exactly the same external relations as the male owner stands to his labour power or sperm. Carole Pateman has argued. at 216. 137 Other feminists have tried to move beyond a choice between celebrating or castigating the goal of self-ownership for women. "Feminist Appropriations: Law. is to sweep away any intrinsic relation between the female owner. ). at 398. at 392. 94 Reproduced with permission of the copyright owner. (Berkeley: University of California Press. 1995) 387-406. It was a claim which was mobilized in direct opposition to. and not in defence of. Petchesky cites those of the Levellers and of African-American slaves. Further reproduction prohibited without permission. As examples of non-Lockean conceptions of property. 138 She argues for a recuperation of the notion of self-propriety as an indispensable part of feminist conceptions of social democracy. particularly given the evidence of alternative constructions of property in one's self. given that rhetorical claims on behalf of women's ownership of their bodies invoke meanings of ownership which "have different cultural moorings from the commercial idea of property that the regime of triumphal international capitalism conventionally takes for granted. Rosalind Petchesky argues that for such early modem European radicals as the Levellers.property. who preceeded Locke. The ideal of fetal legal subjectivity 138 In "The Body as Property: A Feminist Re-vision". There was a campaign to legally recognise the fetus as the holder of a right to life before there was ever a campaign to recognise the woman as the holder of a right to reproductive autonomy. while acknowledging that the meaning of ownership depends on its particular cultural context. 139 Ibid." 139 Petchesky's compromise accepts that claims to self-ownership may have a role to play in feminist politics. One of the interesting aspects of the Irish abortion context is that rights claims on behalf of the 'unborn' have been more legally successful than rights claims on behalf of pregnant women. (eds. market relations as Levellers protested the closure of the commons as well as their constant harassment. Conceiving The New World Order: The Global Politics of Reproduction. For African American slaves who were literally the objects of property one could become free through being bought: "Manumission becomes a form of kin solidarity rather than (in the disparaging view of some abolitionists) a concession to the system of bondage" at 399. in Faye Ginsberg and Rayna Rapp. the claim to self ownership was "an oppositional stance against interference by public authorities in one's sexual and bodily life". The strong value placed on motherhood and the strength of matrilocal family structure among southern slaves has given rise to an "ethic of women's bodily integrity that is communal and extended rather than individualized and privatized". . at 387. historically and cross-culturally. and in the second place by asking how the material context of pregnancy affects formal legal equivalence. support than the ideal of female legal subjectivity in the cultural context of abortion politics. However. The related ideas of self-ownership and legal subjectivity have historicaliy worked proactively in the Irish context to prevent the recognition of women's reproductive subjectivity by legally constructing fetal rights prior to women's reproductive rights. In other words. The legal result of strong social support for fetal rights over and above support for women's reproductive rights was that female and fetus were constituted as formally equal legal subjects through Article 40 3 3's recognition of an equality between a pregnant woman's right to life and the fetal right to life. and legal.mobilised more social. The formal equivalence posited between woman and fetus in Article 40 3 3 is 95 . Secondly. combination of a weaker perceived social need for female legal subjectivity and a stronger perceived social need for fetal legal subjectivity produced the legal recognition of the fetal subject. claims for women's self-ownership in reproductive matters are made in resistance to the constraints placed on women by fetal legal subjectivity. This has two consequences. the social relations of reproduction produced the fetus as a legal subject. This tension is revealed in the first place by asking how social relations have produced this formal legal equivalence. As I argued in Chapter Two. the notion that the 'unborn' should be recognised as having self-owning status had a strong cultural resonance. this formal legal equivalence between woman and fetus actually reflects a substantive difference in fetal and female social subjectivity. the As stated above. Further reproduction prohibited without permission. .Reproduced with permission of the copyright owner. . Because the fetus is contained within the body of the pregnant woman it is not capable of developing social relationships in the way that the woman is. while the woman neither biologically needs nor benefits from the fetus.actually the result of the differential attribution of social significance to fetal subjectivity and female subjectivity. it cannot attain subjectivity through social interaction. On the other side of 96 Reproduced with permission of the copyright owner. by feeding and being fed for example. such as those of food and housing are met through providing for pregnant women. Further reproduction prohibited without permission. The extension of legal self owning status to the fetus challenges its perceived inadequacies as a subject by allowing interests to be claimed on its behalf. She acquires social subjectivity through meeting the needs of others and through having her needs met. The biological aspect of reproduction means that fetal life is being sustained by the pregnant woman in a non-reciprocal relationship. To legally posit an equivalence between woman and fetus as legal subjects is actually to attribute greater value to the fetus since it now has rights against her when it can have no responsibilities to her. This recognition of formal equality between woman and fetus is also revealed as a contradiction when the unequal biological and social relationship between woman and fetus is taken into account. As a social actor. The fetus biologically needs and benefits from the woman. Because the fetus is not a social actor. cannot respond to social needs or wants. a pregnant woman's subjectivity is partially constituted through her acting out of her responsibilities to people and to society. while a fetus is not capable of meeting the needs of others. at the same time as that self-owning status is contradicted by the biological and social limits on fetal subjectivity. Fetal needs. Pashukanis's failure to clarify that the legal fonn's creation of equivalent subjects is contradicted by its simultaneous attribution of differential weight to subjects is related to the unidimensionality of his legal fonn. The contradiction posed by fetal legal subjectivity. the material context of pregnancy combines with the fonnal legal subjectivity of the woman in such a way as to substantively deny woman's legal subjectivity. As several critics of 97 Reproduced with permission of the copyright owner.the equation. Thus legal practice itself also made clear that the fonnal and equivalent legal subjectivity of woman and fetus was contradictory. Pashukanis's conception of the legal fonn as creating fonnally equal legal subjects fails to accommodate the significance of unequal social relations for the substance of such subjectivity. As I will show. Further reproduction prohibited without permission. has played out in the courts' interpretation of the relationship between female and fetal rights in the abortion context. the courts first attributed fetal rights greater weight when they interpreted the fetal right to life as an absolute interest unqualified by women's rights. as it claims to extend self owning status while actually undennining women's. This capacity of the legal fonn to invoke the equivalent subjectivity of woman and fetus by recognising them as rightsholders at the same time as it attributes that subjectivity differential weight. and second when they later interpreted a woman's right to life as qualifying the fetal right to life only in circumstances where paternalist mercy so requires. is a concrete example of some of the limitations of Pashukanis's abstract conception of legal fonn. . If a pregnant woman is under an obligation to act so as to sustain fetal life she cannot do as she wants or needs with her body and so is denied self-owning status. cannot be isolated from its content. that the fault for an unchanging conception of legal fonn lies with its level of abstraction. at 25. "Law and Class". I do not believe. Therefore. and as has been shown by other feminist studies.Pashukanis have observed. 98 Reproduced with permission of the copyright owner. women have not always been constructed as full and equivalent legal subjects. namely substantive inequality. reminding us that attention to form analysis is only an improvement on a crude instrumentalist analysis if form is understood has having a dialectical relationship with content. But this dialectic between form and content of law in Marx's analysis. we also need to amend the conception of legal fonn by engaging with feminist critiques so that it can account for gendered subjectivity. he cannot adequately allow for the contradictory effects of and dialectical changes within actual legal fonns. 141 Shelley Gavigan makes a similar point: "Insistence upon 140 Bob Fine comments: "the form oflaw. Further reproduction prohibited without permission. by engaging with the observations of such critics we can adapt the conception of legal fonn so that it can accommodate change and difference. "The Ideology of Law: Advances and Problems in Recent Applications ofldeology to the Analysis of Law". however. supra note 120. . equal right. 140 A second limitation of Pashukanis's conception of legal fonn is his failure to recognise how legal subjectivity is gendered. As the current example of abortion shows. Fine. cannot be transposed into a simple denunciation of all law as a bourgeois mystification of underlying inequalities". (1985) 19(1) Law and Society Review 11-37. as it stands. his conception of legal fonn is not adequate to the task of analysing a variety of legal fonns. Therefore. I agree with Alan Hunt when he says that keeping the concept 'legal fonn' at an abstract level makes it both possible and necessary to address the co-existence of different legal forms when analysing specific social fonnations. that is. 141 Alan Hunt. Changing legal form A Pashukanis inspired conception of legal fonn operates at a high level of abstraction and generalization. However. Rather. the role of legal subjects and legal actors. Bob Fine.capitalist conditions. This critical distance between the abstract and the concrete legal form is necessary in order to recognise changes and tensions in legal form. He adopted this view of law because he believed that to do otherwise was to accept an idealist view of law as eternal. supra note 120. this can aid the project of clarifying how different legal forms actually evolve and how they characterize social relations. be no role for law in post. even 142 Gavigan. in his failure to adequately incorporate a dialectical view of the social relations which produce legal form. and second. in doing so he effectively rejected a dialectical view of law. in his focus on exchange relations to the neglect of other aspects of social relations. However. I think the problem with the formal rigidity ofPashukanis's conception of legal form lies rather first. supra note 114. . among others. Law would 'wither away' along with the capitalist state. has criticized Pashukanis for failing to allow for the possibility that legal form can change. Theorizing the relationship between abstract legal form and actual legal forms can in tum help feminism anticipate the effects of its own legal engagement on such concrete activities as Irish women's abortion practice. 143 Fine. If feminist legal theory takes on the task of theorizing legal form at a general level. at 7. He believed that there would." 142 It is only by abstracting a conception of legal form from socio-legal relations that we can maintain a critical distance from the actual legal forms which require explanation. "Law and Class".attention to the legal form facilitates analyses which are attentive not only to form but also to forms and levels of law and legal institutions. 143 Pashukanis's conception of legal form is both singular and essentially capitalist. and importantly. 99 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. though he himself advocated a dialectical viewpoint. In rejecting the notion that law could adapt to socialist conditions he responded negatively to an idealist conception of law by adopting its opposite. As a result, Pashukanis failed to appreciate sufficiently the contradictory nature of legal form given its dialectical character. In casting legal form as that which makes humans the bearers of proprietary rights and in holding the view that law would wither away in a post-capitalist society, Pashukanis could be interpreted as generalizing a particular legal form which arose in particular capitalist social relations too far beyond its parameters. It is clear however, that Pashukanis himself accepted a dialectical approach given that he said: "we must not lose sight of the fact that the dialectical development of the concepts parallels the dialectic of the historical process itself. Historical development is accompanied not only by a transformation of the content of legal norms and institutions, but also by development in the legal form as such". 144 Therefore, we should read his actual adherence to an unchanging legal form as a product of his political desire to argue that there was no purpose for law in a socialist society. As Bob Fine has said: the works of Pashukanis himself must be seen in the light of his political intervention against currents of belief, later closely associated with Stalinism, which held that the maintenance of legal forms in the Soviet Union was not a necessary hang-over of bourgeois forms of regulation but the first expression of the development of 'proletarian law'. Pashukanis saw in such a position an implicit conservatism which failed to uncover the social roots of the legal form, and which was consequently caught in the 145 idealization oflaw itself as a suprahistorical force. 144 Pashukanis, supra note I 08, at 71. 145 Fine, "Law and Class", supra note 120 at 34. 100 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. If the unidimensional aspect oflegal fonn is read more as a product of his political response to his context (for which he paid the price of his life), and less as a necessary condition, it becomes possible to reformulate Pashukanis's account of legal fonn so that it is dialectical and susceptible to change. Hunt's comments on the ways in which legal form has changed with the democratization of the capitalist state and the development of the welfare state suggest the possibility of a conception of legal fonn which changes with social relations. Drawing on Habermas, Hunt considers that there has been a shift from the 'formative bourgeois state' which gave rise to a legal form that constituted the property-owning legal subject as the bearer of rights, through a number of stages of the democratization process through which the legal-subject-as-citizen is arrived at and whose significance is that rights no longer remain exclusively tied to property relations ...[to] the emergence of the 'welfare state' that is characterized by the emergence of distinct forms of'social rights'. 146 Hunt's point is that the link between property and rights status has changed historically. If the content which legal fonn has given to the legal subject has changed, this would suggest that legal form itself must have changed in its relationship with social relations. Mary O'Brien also hinted at the need to complicate the relationship between property and rights status when she said: "Nor can the important development of real property right say all that can be said about rights". 147 In other words, not only does the meaning of property change historically and culturally as Petchesky has argued, but the capacity of property to determine rights status also changes. Not only do we have to account for the fact that legal 146 Alan Hunt, "Explorations in Law and Society", in his Explorations in Law and Society: Toward a Constitutive Theory of Law (New York: Routledge, 1993) at 14. See also Alan Hunt, and Gary Wickham, Foucault and law: Towards a sociology of law as governance, (London: Pluto, 1994) at 61. 147 Mary O'Brien, The Politics of Reproduction, (London: Routledge and Kegan Paul, 1981) at 56. 101 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. form has put self-ownership to work more effectively on behalf of the fetus than on behalf of the pregnant woman in the particular cultural context of Irish abortion politics, but we should also expect to have to account for change in the way that legal form has done so. Changes in the legal form of abortion regulation which I will address include one produced through the interaction of the constitutional endorsement of a fetal right to life with childcare legislation. The childcare legislation, a legal product of the welfare state of the sort referred to by Hunt above, recognised children's health rights by allowing the state to provide for the medical needs of the children in its care. The result in the C case, 148 that the state was justified in arranging an abortion in England for a thirteen year old rape victim in fostercare, was produced by a legal form which reconciled constitutional protection of fetal life with paternalist welfare state protection of a vulnerable girl. Different particular legal forms - constitution and childcare legislation - are themselves evidence of historical change within the general legal form, and together can produce further changes in that legal form. Now that we have established that a theory of legal form must accommodate changes within that form, we can move on to consider at least part of the explanation for the production of such changes. As mentioned above, one critical explanation that has been offered for both the oversimplicity and inadequacy of Pashukanis 's conception of legal form, is that he derived legal form by focusing on the social relations of exchange and circulation. 149 Unusually for 148 A. and B. v. Eastern Health Board, Fahy and C., supra note 2. 149 Fudge, supra note 113 at 163; Fine, "Law and Class", supra note at 42-5. However, for a defence of Pashukanis's focus on exchange relations see: Jeffrey Reiman, "The Marxian Critique of Criminal Justice", in DavidS. Caudill and Steven Jay Gold, (eds.), Radical Philosophy of Law (Atlantic Highlands, NJ: Humanities Press, 1995) 111-139. 102 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. a Marxist, he did not focus on the significance of production relations for the legal form. As Fudge argues: "Because Pashukanis started his analysis of the legal form at the point at which labour power is exchanged in the labour market, he tended to overgeneralize the power of the juridic subject". 15° Fine's comments explain the point further: "For if we consider the exchange relation and the legal form from the point of view of its derivation from social relations of production, we see the entirely different content it has in a society of petty-commodity production, based on independent producers whose interconnections are established through the exchange of the products of their labour, from that which it has in a capitalist society, based on the expropriation of the working class." 151 While in the context of petty-commodity production, independent producers are constructed as socially equal in a manner consistent with the legal form's recognition of them as holding equal right, in the context of the capital-labour relation there is no social equality between worker and employer since a portion of the worker's labour is appropriated by the employer without return. Analysing the form of law reveals the commodity exchange relation which is concealed within legal form and which underpins the ideal of the free and equal legal subject. But it is only by relating the form of law to the content which the social relations of production give it that the specifically class character of bourgeois legality is revealed. As Fine argues, "this is not hidden in the form itself; only in the inner connection between 15 ° Fudge, z"bz"d•• 151 Fine, supra, "Law and class", note 120 at 43, emphasis in . Further reproduction prohibited without permission.original. 103 Reproduced with permission of the copyright owner. at 43. 153 Fudge takes the relations of production as including the production of human beings.bourgeois legality and the relations of production founded on the expropriation of labour. supra note 113. It is also possible to account for changes in legal fonn over time as its character is changed through its accommodation of differing social relations. The substantive content which legal fonn attributes to objects such as the fetal right to life is constituted by social relations as they are expressed through legal fonn." 152 This analysis of the dialectical relationship between fonn and content as being dependent on the intersection of the commodity relation with the relations of production provides us with a means to overcome the problem posed earlier: the inability of Pashukanis's conception oflegal fonn to explain the tension between the fonnal equality of woman and fetus in constitutional law and their substantive inequality. However. and in order to account for contradiction and change in that process. 104 . 153 or whether reproduction is seen as a distinct but equally significant aspect of social relations. we need first to gender that legal fonn. the key point is that the perspective of production relations provides one example of how social relations in general contribute to the content that legal fonn attributes to objects. Whether the conception of production is expanded so as to include other significant social relations such as reproduction for example. In this way it becomes possible to account for contradictions within a legal fonn which posits an equality between woman and fetus at the same time as it makes the woman subservient to the fetus. 152 Ibid. in order to tease out more fully how social relations attribute content to the legal fonn of abortion. Further reproduction prohibited without permission. .Reproduced with permission of the copyright owner. ) The Unhappy Marriage of Marxism and Feminism: A Debate on Class and Patriarchy (London: Pluto. 1978). bourgeois society. This analysis can be a resource for feminist legal theory. 1986). 1991). .. But feminists have long noted that a narrow conception of the mode of production cannot account for the particular ways in which the role of womanhood has been defined. His adoption of a Marxist theoretical :framework provoked him to ask particular questions about the historical connections between legal form. Family. (London: Verso. Before turning to the contribution that the perspective of social reproduction can make to form/content analysis.Gendering legal form For Pashukanis. 155 See Michele Barrett and Mary Mcintosh.). 154 It is necessary for legal form analysis to account for the significance of such gendered social relations as those of the family in the social construction of legal subjects if the gendered differences between and among women and men as legal subjects are to be explained. legal form reveals something about the way in which relations between people and things are actually constructed in a capitalist society. his analysis of legal form has to be read historically and contextually if it is to be adapted for feminist use. 2nd ed. it is necessary to clarify the ways in which 154 See. However. 105 Reproduced with permission of the copyright owner. Feminism and Materialism: Women and Modes of Production (London: Routledge and Kegan Paul. and a capitalist mode of production. 155 A concern for the processes of social reproduction provides one way of complicating the relationship between production and exchange as it contributes to the relationship between legal form and content. Lydia Sargent. Economy and State: The Social Reproduction Process under Capitalism (Toronto: Garamond Press. however. 1981).). (ed. for example. and James Dickinson and Bob Russell (eds. Annette Kuhn and AnnMarie Wolpe (eds. His objective was to provide an explanation of legal form as it emerged :from a particular kind of social formation: a capitalist commodity producing society. Further reproduction prohibited without permission. The Anti-social Family. where he explains that if husband and wife were one body before God. When we apply a gender analysis to Pashukanis's theory. 1765-1769) vol. she could not sign contracts unless he was a co-signor. it becomes obvious that he did not allow for the fact that married women (among other marginalized groups) had historically been refused legal recognition as commodity owners. On the other hand. 157 Mary Lyndon Shanley.Pashukanis's conception oflegal fonn is gendered. Tauris and Co. any rents or other income from it belonged to him. 4 vols. 1850-1895 (London: LB. and any property that came to her during marriage was legally his. they were one person before the law. A married woman could not sue or be sued unless her husband was a party to the suit. and members of visible minorities have. 156 During a particular historical period women were denied legal subjectivity and equal right in Pashukanis's tenns. at 158. See William Blackstone. Commentaries on the Laws of England.. for different periods and to different degrees. By requiring such theoretical categories as legal fonn to accommodate the kinds of socio-legal relations which are the object of my analysis. 106 Reproduced with permission of the copyright owner. Under the common law doctrine of coverture a woman's legal personality became that of her husband's on marriage. 1989) at 8-9. been denied the rights and privileges of legal personality and political citizenship" supra note 113 at 163. (Oxford: Clarendon Press. a person represented by the husband. 2. 1. and the Law in Victorian England. passed entirely to her husband for him to use and dispose of as he saw fit. As Mary Lyndon Shanley explains: A man assumed legal rights over his wife's property at marriage. While a husband could not alienate his wife's real property entirely. 157 When Pashukanis said that a conflict of interests was a prerequisite of legal fonn.. including the money she might have saved before her marriage or earned while married. Marriage. Feminism. women. . a woman's personal property. and could not make a valid will without his consent. I can develop a conception of legal fonn which is appropriate and adequate for that analysis. chap. he failed to notice that law did not perceive relations between husband and wife as conflicts of 156 Fudge comments: "Aboriginal people. Further reproduction prohibited without permission. This logical possibility points the way towards a feminist reading of legal form. One such explanation has 107 Reproduced with permission of the copyright owner. It might be possible. no differentiation of interests at all is the other. however. A consequence of one party owning a commodity is that another party does not own it. A feminist reading of legal form could argue therefore that legal form excluded women from the category of commodity owners because patriarchal social relations denied them recognition as property owning subjects equivalent to their husbands. One could argue that while a conflict of interests is one side of the legal form coin.that legal form also creates commodity non-owners. Further reproduction prohibited without permission. Women were denied property rights not because a given piece of property was already owned by other parties. . so must there be a social explanation for the law's denial of rightsbearing subjectivity to married women. to adapt Pashukanis's reading of legal form in order to accommodate this criticism. A wife's interests were presumed to be that of her husband. not by virtue of the exclusive ownership of particular objects.interests. Pashukanis's statement that the legal form creates commodity owners may be read as a positive version which implies a negative. it also implicitly creates a non-subject who is not the bearer of private rights in relation to that same object. So at the same time as law creates a subject who is the bearer of private rights over a particular object. There can be no conflict in interests if there is no distinction between interests in the first place. Just as there was a social explanation for the legal interpellation of the rightsbearing subject. but because they were excluded from the category of commodity owners altogether by virtue of their subjectivity as women. The denial of property owning status to women provides a clue as to their socially perceived role. Feminine responsibility for producing and rearing children within the marital family was seen both as requiring women's full attention and as making them unsuitable for the responsibilities of property ownership. women's attainment of property owning status before the law has not brought about substantive equality. legal form created a means for women to claim access to 'men's' world. Pashukanis's conception of legal form is gendered therefore in two primary ways. . by providing the construction of a rights endowed legal subject. and legal subjects in general. a responsibility which has compromised their ability to play other social roles. On one level. It cannot accommodate the historical fact that women were not always conceived as property owning legal subjects. Women attained formal legal subjectivity by arguing that they deserved to be treated as individuals before the law. the fact that women's attainment of formal legal subjectivity has not led to their achievement of substantive equality points to the inadequacy of conceptualising 108 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. however. And it cannot account for the contradiction between formal legal constructions of women as property owners and substantive social constructions of women as inappropriate property owners. At the same time as women were denied legal subjectivity however. Even though women were legally permitted to be property owners their continuing responsibility for social reproduction made it difficult for them to fulfil their status as property owners in particular. As has been repeatedly pointed out in various works. individuals who were due legal rights and responsibilities.been that women have been attributed responsibility for social reproduction. and does not reflect a social equality between women and men as property owners. . Mentally challenged women have been sterilized in order to stop them from reproducing. this binary legal form cannot adequately get at the complexity of gendered legal subjectivity. Rather I hope that by focusing on social reproduction as an example of one of the processes by which legal form is gendered I can reveal more about the specifics of that process. Mary O'Brien's analysis of reproduction can provide us 109 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Lesbian women have been denied adoption rights and access to reproductive technologies. At another level. women are required to conform to a particular image of womanhood which is constructed by excluding some women from the category of 'good reproducers'. the processes of social reproduction provide a means to understand contradictions produced in the legal form when it tries to capture the content of gendered social relations. Native women have had their children taken away from them. The different ways in which legal form has constructed women's reproductive responsibilities also demands that the inadequacy of the binary conception of legal form as creating subjects and non-subjects be addressed. At the same time that women are represented as reproducers. I am not suggesting that social reproduction is the only or the primary perspective from which we can gender legal form. Social reproduction is also a particularly appropriate perspective from which to consider the gendering of legal form given that the object of my analysis is ultimately a form of reproductive regulation: abortion law. While a conception of legal form which creates non-subjects as well as subjects may be an improvement on that which creates legal subjects only.legal form in binary subject/non-subject creating terms. All women have not been legally constructed as equally responsible for social reproduction. 159 Ibid. is no longer dependent on others for the necessities of survival. O'Brien sets out to address this gap by providing what she calls a philosophy of birth and an analysis of reproductive labour.with some of the analytical tools needed to explain how legal form can produce such disparity in the content of laws which regulate reproduction. sex. In terms of its sociality. at 20.the making of a living . reproductive labour brings about the reproduction of the human race by involving two people in each reproductive process and by producing a third. the child. In this sense it differs both from productive labour and from reproduction in Marx's sense. supra note 147. but the human race cannot be reproduced 158 O'Brien. and in its integration of the rational individual into biological process. the ethics of parenthood or the processes of child development. birth and dying share the status of biological necessities.which are not necessarily social. 158 O'Brien draws on the method of Marx's analysis of productive labour to provide an analysis of reproductive labour. 160 O'Brien identifies the process of reproduction as beginning with ovulation and ending when the 'product'. Freud focused on sex. only birth has been philosophically treated as if it can be understood purely in terms of the biological sciences. 159 O'Brien notes further that even feminist thinkers have neglected the role of biological reproduction 160 in favour of other aspects of social reproduction such as the history of the family. and the existentialists on dying. O'Brien argues that the specificity of reproductive labour lies in its necessary sociality. An individual can make something and can sustain herself without the interventions of others. She argues that although eating. Further reproduction prohibited without permission. at 16. 110 Reproduced with permission of the copyright owner. Marx began with the need to eat when he built his theory of productive labour as the remaking of human consciousness and needs. ibid. . 161 Synthetic value is distinguishable from the other kinds of value a child can have... reproductive labour is also distinguishable from productive labour in the degree of its rationality. that the architect raises his structure in his imagination. the appropriation of the mother's labour power. supra note 147at 37 Ill . embodied as synthetic value in the child. and human value as a subject or object of Jove and trust. as cited in O'Brien. or reproducer. O'Brien explains: "The woman cannot realize her visions. Capital (New York. by virtue of the reproductive labour process in which she involuntarily engages. like herself. if at all. Unlike the architect. The fact that synthetic value is the product of reproductive labour power means that the appropriation without labour of the child is. 0'Brien argues that it is this specific aspect of reproduction which produces a value specific to reproductive labour: synthetic value. at 60. Marx famously explained this by saying that "what distinguishes the worst architect from the best of bees is this. such as use and exchange value as a potential labourer. Unlike the bee. Karl Marx. 1906) Vol!. will have a history. at 198." 163 But women as reproductive labourers differ from both the bee and the architect. 161 162 163 Ibid." 162 As well as differing at the level of sociality. at the same time. Pt III. cannot make them come true. Productive labour is the unity of thinking and doing. her will does not influence the shape of her product. Ibid.through the activity of one person alone. she knows that her product. Synthetic value "represents the unity of sentient beings with natural process and the integrity of the continuity of the race. at 59-60. Reproduced with permission of the copyright owner. . Further reproduction prohibited without permission. the introduction of contraceptive technology did not signal the beginning of women's exercise of rational control over their fertility. like the bee. The first was the discovery of physiological paternity and the causal relation between impregnation and birth. and men become aware of both their inclusion and exclusion from reproduction. at 53. This sense of discontinuity arises. at 38. The second significant change in the historical process of reproduction is the development of contraceptive technology. Contraceptive technology brought about a transformation in making fertility control more reliable and effective than it had been before. according to O'Brien. Through this discovery it became possible to understand reproductive process as dialectical. This technology has transformed reproductive process by giving women the freedom to choose motherhood. Further reproduction prohibited without permission. ibid. 165 Ibid. 166 Ibid.Like the architect. 166 are responses to men's sense of reproductive discontinuity. and constitutional law." 164 O'Brien argues that there have been two particularly significant moments in the historical process of reproduction. she knows what she is doing. Petchesky. at 136. supra note 20. 167 Here one might add that the safe provision of abortion facilities has also played a role in this transformation by allowing women to stop being pregnant as well as by allowing them to prevent getting 164 O'Brien. Women had practiced fertility control long before contraceptive technology arrived. from the knowledge that after contributing their sperm men are alienated from the biological reproductive process by which continuity ofthe species is achieved. 112 Reproduced with permission of the copyright owner. 165 These modes of continuity. 167 As Petchesky notes. Men collectively compensate for the sense of exclusion by creating what 0'Brien calls 'artificial modes of continuity'. . she cannot help what she is doing. examples she cites are the exercise of proprietary right of appropriation of the child. abortion and sterilization.. have altered in reproductive process . A law which conformed to Pashukanis's model of legal 113 . nature and reason. Legal form responds to the social relations of reproduction by making reproduction the object of the legal subject's control. is one outcome oflegal form's objectification of reproduction in such a way as to ensure species continuity. For O'Brien the social relations of reproduction are particular in their production of species continuity.pregnant. subjects have to be constructed as the bearers of reproductive responsibilities.. Both of these changes represent moments when the dialectical relationship between experience and consciousness. the pronatalist content of laws which restrict contraception. The production of synthetic value requires reproduction. The effects of this subject construction are more acutely felt by women given that gestation and birth connect them to the process of reproduction in a more intimate and sustained fashion. Rather they impose reproductive responsibilities on women by restricting their ability to opt out of reproduction. These laws directly contradict the notion that legal form attributes subjects equal right since they deny women the right to control their fertility... Most obviously. When Pashukanis's legal form bestows proprietary right on the legal subject it brings that subject into being by making the commodity the object of its control.to law as an object form. Legal form also brings legal subjects into being by making reproduction their object of control in a variety of ways. . I propose then that the content which these social relations asks legal form to capture is reproductive responsibility. Further reproduction prohibited without permission.Reproduced with permission of the copyright owner. . To attribute men and women equal right in this context is to devalue women's reproductive labour in much the same way as the attribution of equal right to capitalist and wage labourer devalues the productive labour of the employee. reproductive and exchange relations together have produced through legal form laws which allow a measure of reproductive autonomy. and thus privileges men. As long as women gestate. . Further reproduction prohibited without permission. their biological contribution towards the production of a child will always be more than men's. The necessarily social character of reproduction means that the responsibility side of the right/responsibility dyad is emphasised. as in the case of pro-natalist laws. The legalised sterilisation of women deemed mentally unfit to mother. In some instances. In these instances we see the influence of the individual character of exchange relations qualifying the social goal of human reproduction to allow limited reproductive rights. is a particularly graphic instance of legal fonn responding to reproductive relations 114 Reproduced with permission of the copyright owner. Laws which allow women a measure of reproductive control demonstrate the tension between legal form and the content of reproductive relations. In other instances. however.form and recognised the equal right to reproductive control would have a differential impact on actual subjects. If law attributes women and men equal right over biological reproduction it misses the fact that women's material contribution to the process is more substantial than that of men. reproductive relations have produced through legal form laws which control reproduction by subjecting it to the collective social goal of human reproduction. This tension between the objectification of reproduction to individual and collective goals is also manifest in laws which have differentiated between women as reproducers. she also saw it as the "material base for the social forms of the social relations of reproduction". this analysis is useful in 168 O'Brien gets at this point when she says: "Capitalism slowly erodes male supremacy. not to liberate women.by subjecting species reproduction to 'quality control'. 115 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 169 The problems with this kind of view of the biological reproductive base as supporting social forms of reproduction become more obvious when. at 21. the biological reproductive process becomes more objectified and more liable to the exercise of right. she explains artificial modes of male reproductive continuity such as "the huge legal and religious edifice erected to outlaw abortion" 170 as being caused by men's alienation from reproductive process. for the dialectics of reproduction do not change until corporate technology attacks and transforms the objective process of reproduction. Legal form will attribute differential reproductive responsibilities therefore when it seeks to rationally control reproduction not just to ensure species continuity but to ensure the continuity of the kind of specimens deemed exemplary for the species. 168 Thus legal form instils control over the biological process of reproduction in legal subjects. . as noted above. 170 Ibid. but to attempt to adjust the balance of world population and production in an enterprise with strong racist overtones". at 142. Although O'Brien regarded reproduction as a dialectical process which changes historically. As the rational control of reproduction increases and intensifies through its technological and medical development. so a sense of individual rational control over reproduction is required if the process of qualitative species continuity is to proceed. at 160. 169 Ibid. but it does not immediately transcend it. One of the problems with O'Brien's theory of reproduction is also interestingly suggestive for my analysis of legal form. It does this finally with reluctance. On the one hand. Just as a sense of individual rational control over commodities is required if the process of exchanging those commodities is to proceed. supra note 147. While she has provided useful tools for analysing the biological aspects of social reproduction. The 1937 Constitution also reproduced the Irish as a nation and Ireland as a state fifteen years after partition saw the emergence of the Irish Free State 171 Fudge. But even a historically produced masculine consciousness is not a sufficient explanation for the variety of reproductive laws which it is reputed to have caused. It lays out the functions and roles of the state and its institutions. is both a public legal form and a means of cultural reproduction. One of the ways around this limitation of O'Brien's theory of reproduction is to separate out different aspects of social reproduction. or any capacity to themselves have material effects on the base of biological reproduction. 171 The Constitution. 116 . which is the primary instrument of the legal regulation of abortion in Ireland. the limited insight which she has provided on the cultural aspects of social reproduction is inadequate to the task of theorising contradictions and changes in the legal regulation of reproduction. Secondly. and obliges the state to protect certain individual rights and freedoms.its identification of a patriarchal connection between such anti-abortion laws and a masculine consciousness which seeks to control reproduction. this view denies social forms of reproduction any autonomy. Judy Fudge has argued that legal form analysis has to accommodate the public as well as the private aspects of legal relations if it is to provide a full account of law's impact on social relations. supra note 113. Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. . the Irish Constitution.from the United Kingdom of Great Britain and Ireland.). Whereas an engagement with Pashukanis 172 See Desmond Clarke. 173 Raymond Williams. be the necessary conditions of its re-production. for an explication of the 1937 Constitution's nationalist assumptions. Ireland's Evolving Constitution: 19371997 Collected Essays. . and Multicultural Citizenship". and that in capturing any particular aspect of social relations and making it the object of a legal subject's control. 1995/1981) at 201. (Oxford: Hart. 172 It confirmed and consolidated Irish post-colonial status. In the next section. legal form is capable of great change and contradiction. (2000) 51(I) Northern Ireland Legal Quarterly 100-119. The Sociology of Culture (Chicago: University of Chicago Press. Further reproduction prohibited without permission. they may in the process of modifying it. I argue that by unravelling Foucault's opposition between juridical and micro-power we can begin to account for the way in which legal form reproduces itself by incorporating old legal forms in new frameworks of meaning. Through a critical engagement with Pashukanis I have argued that a commitment to the analysis of legal form does not necessitate accepting a singular legal form." 173 In thinking through the public and cultural reproductive aspects of legal form I have found Foucault's perspective on law a useful resource. I argue that a critical engagement with Foucault also demonstrates that legal form is not unidimensional. and remade that culture in a new image. Foucault's command-like conception of juridical power fails to capture the complexity of legal form just as Pashukanis's commodity form conception did. 117 Reproduced with permission of the copyright owner. Foucault can provide us with the theoretical resources to explain how legal form uses its past actual expressions to reproduce itself anew. See further: Tim Murphy and Patrick Twomey (eds. "Nationalism. 1998). As Raymond Williams has commented: "significant innovations may not only be compatible with a received social and cultural order. The Constitution is a mode of cultural reproduction because it both symbolically invoked an already established national culture. not by punishment but by control". 1978). For example he says: "Law was not simply a weapon skillfully wielded by monarchs: it was the monarchic system's mode of manifestation and the form of its acceptability. 176 Supra note 174. 1980). negative quality. In Western 174 Michel Foucault. . 177 Colin Gordon (ed. Power/Knowledge: Selected Interviews and Other Writings !972-1977 (New York: Pantheon. power produces knowledge. 174 He argues that the conception of power which has been dominant is one which has a repressive. Both in itself and as a support for law. 118 . Foucault figures law as premodern in its expression of the monarch's sovereign power. Disciplines are "not ensured by right but by technique. not by law but by normalization. 1. 1977). a quality which he equates with law. and Power/Knowledge. The dominance of this notion of power has obscured the way in which power actually works. at 89.. 175 (London: Allen Lane.of reproduction public Law as sovereign command Foucault conceived of law as the absolute power of the monarch. an engagement with Foucault demonstrates the necessity of taking official legal ideology in its Hartian sense seriously as the internal mechanism through which legal form reproduces itself. 111 175 176 History of Sexuality vol. In Discipline and Punish..demonstrated the necessity of taking legal concepts seriously in seeking to explain law's role in social relations.). The History of Sexuality (New York: Vintage. and generally juxtaposed it to disciplinary powers such as medicine and science which operate through techniques of surveillance. Further reproduction prohibited without permission.Reproduced with permission of the copyright owner. . In "Truth and Power"." 179 Carol Smart also identifies the shift from premodern law to modem discipline as a Foucauldian thesis: Feminism and the Power of Law (London: Routledge. Further reproduction prohibited without permission. . supra note 177. Foucault emphasises clearly that he does not mean to indicate that sovereignty is replaced as a different form of power becomes dominant. 1991) at 87-104. at I 02. then. the exercise of power has always been formulated in terms of law". "Govemmentality". and govemmentality. 180 He thinks that sovereignty continues to be an aspect of power relations even after it is no longer the chief mechanism of power. discipline. and not in terms of three successive social phases. 179 Although Foucault believed that the idea of law as sovereign power outlasted the monarchies. supra note 174 at 87. 178 Foucault. in Power/Knowledge. its capacity to continue as a 'residual' cultural form. (eds. Foucault's sovereign conception of legal form does not 'wither away'. at 270. we can read Foucault as referring to the persistence of the once dominant legal form. The Histol)' of Sexuality. 181 This aspect of Foucault's conception of law can operate as a resource for understanding how legal form changes over time. Graham Burchell and Peter Miller. In his later work. he still saw law in the modem era as having this premodern form of absolute monarchical sovereignty. 1989) 180 In Michel Foucault. one adopts a purely juridical conception of such power. 119 Reproduced with permission of the copyright owner. as Pashukanis's commodity conception of legal form does.societies since the Middle Ages. he suggests that we should think of society as a triangular composite of sovereignty.) The Foucault Effect (Hempstead: Harvester Wheatsheaf. At one level. he comments at 119: "In defming the effect of power as repression. once the social conditions which gave rise to it change. in Colin Gordon. one identifies power with a law which says no. supra note 146. 181 Raymond Williams. as cited in Hunt. supra 173 at 204. in Williams' terms. 178 One of his theses about the rise of disciplinary power is that the shift from premodemity to modernity is characterized by the disciplines' displacement of law as the primary manifestation of power. power is taken above all as carrying the force of a prohibition. Second. On the one hand that fonn of law traditionally thought of as coercive . democratic governments are actually centralized organizations which command their subjects. 183 See. Foucault is making. for example. supra 177 at 105. 120 Reproduced with permission of the copyright owner. in their Foucault and Law.Alan Hunt and Gary Wickham point out two ways of interpreting Foucault's derivation of law from a monarchical power. than defenders of contemporary democracies would care to admit. . The descriptive point does resonate with two aspects of Irish abortion law.has not been used against women or abortion providers in Ireland for some time.criminal law . The ideological point claims that the command form of law remains our dominant conception of law even though it is does not accurately describe contemporary legal relations and even though the social conditions which gave rise to the command form of law have changed. an ideological critique. Further reproduction prohibited without permission. "Critique of Foucault's Expulsion of Law". ironically enough. 182 First. a power which no longer defines the democratic fonns of sovereignty found in the industrialized world. 183 The descriptive point draws our attention to the way in which centralized authority and sanction may be more significant features of government and law respectively. In effect. Power/Knowledge. at 61. By clinging to a command fonn of power in the actual exercise of democratic sovereignty. representative political regimes mask the operations of disciplinary power. As recently as March 182 Alan Hunt and Gary Wickham. supra note 146. Foucault is making a more descriptive point in saying that modem forms of sovereignty have not overcome their origins in the absolute power of the monarch. The continued dominance of the imperative view of law has the effect of obscuring the way law actually operates in the absence of imperatives. such 184 Jim Dunne. a woman who claimed that she had had an abortion in a Dublin clinic in 1995 received immunity from prosecution under the 1861 Act. 121 . Carol Coulter and Geraldine Kennedy. 185 Ailbhe Smyth. has been used coercively against women and their service providers. This observation about the descriptive aspect ofFoucault' s idea of law can work the other way too. 1992). supra note 25. 184 Months later the DPP declared without explanation that he would not be proceeding with the prosecution of the doctor in question. The Irish Times.1997. The fear that legal action by anti-choice campaigners would be taken under Article 40 3 3 also prompted the censoring of women's magazines carrying advertisements for abortion clinics in Britain and the suppression of literature containing reproductive health information in libraries.). and temporarily against X delaying her access to abortion services outside of Ireland. 185 Thus the failure of the criminal law to have coercive effects against women is not evidence of a general legal failure to coercively intervene in women's reproductive decision-making. On the other hand. "Immunity is granted to woman in abortion inquiry". Rather the manner in which constitutional law has come to act in such a coercive manner indicates that the centralized authority and sanction of law with which Foucault was concerned can find new and surprising outlets. "Censorship and the Media". "The Politics of Abortion in a Police State". 138-148. constitutional law. usually thought of as a check on state coercion. law may fail to act in ways which the shape of a legal form. As well as acting out in ways which contradict the shape of a legal form such as the constitution. and Mary Kelly. 1 March 1997. Article 40 3 3 has served as authority for injunctions against clinics and student unions stopping them providing abortion information to women clients. in Smyth. in Alpha Connelly (ed. Gender and the Law in Ireland (Dublin: Oak Tree Press. .Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. is not enough to explain the legal content that has been attributed to those rights.as giving rise to an absolute interest in fetal life in the first instance. Thus in the aftermath of X particularly victimized women are permitted a right to abortion because of their particular circumstances and relationships. Working backwards from the description of legal content.that law derives from the sovereign power of the monarch . Further reproduction prohibited without permission. the fact that the woman/fetal relationship is formally constructed through competing rights. now constructing reproduction as an object of relational national control. .asks us to unearth the workings of power that are hidden and legitimated by such a claim. or the actual legal form that has shaped that attribution. I reveal how the pre-X interpretation of Article 40 3 3 was produced by a post-coloniallegal form which constructs reproduction as an object of absolute national control. not in their own right. Thus in Chapters Four and Five I describe how the competing constitutional rights of woman and fetus have actually been interpreted .it becomes possible to reveal both the general legal form at work and how it changes through such particular concrete articulations. In both pre-X and post-X formulations.such as fetal rights . The crisis which the X case produced caused that post-colonial legal form to change.as rights. By unearthing the actual content that has been given to particular legal fmms . I shall shortly take up the question of how Foucault wants to 122 Reproduced with permission of the copyright owner. In other words there is a need to examine the actual workings of law in order to establish the actual effects and character of legal form. The ideological point of Foucault's claim . and a relational interest in the woman's life in the second instance. suggest it ought to. If abortion is not provided as a publicly insured health service. for law to be ineffective in practice. 187 The power-conferring aspect of law. has not removed law as an obstacle to abortion access for women. "Law and Capital" supra note I 15. Legal stipulation of the conditions under which women may access abortion as an insured health service. It allows for the possibility of the relative autonomy of the state by demonstrating how law can be manipulated after the event. supra note 17. Legislators and enforcers do not need to have been captured by big business. their intentions need not be underhand. The subjects of Jaw and the profession that serves them can quite legitimately make it so regardless". have argued that decriminalization. to self-regulate or not . the removal of sanctions against abortion. are examples of legal mechanisms which affect women's use of abortion services without using a command form of law. Feminist critiques of abortion law. McBarnet. despite rather than because of Jaws made and enforced by the state.has effects that are not explicable in terms of sovereign commands. women's access to abortion is compromised. or under which the health professions may regulate themselves. at 237.the power to insure or not. 123 . 187 Brodie et al. if hospitals do not provide health services which do not conform to their ethical code. Focussing on the facilitative form and its use allows intellectual space for a more complex relationship between Jaw. state and class. Both feminist critiques of law 186 and Hartian legal theory have noted in their particular ways the inadequacies of the view of law as sovereign command. But here I want to emphasise that we do not necessarily have to go outside oflaw to discover that law affects and constrains people's behaviour in ways which cannot be described as command-like. Feminist legal engagement has come to learn through its own 186 Doreen McBarnett says: "Contemporary sociology has tended to concentrate on the oppressive side of law but it can be facilitative too and not only in its substance but in its form.. for example.direct his audience's attention to the generative aspects of power which he regards as external to law. Further reproduction prohibited without permission. .Reproduced with permission of the copyright owner. Hart notes that typically primary rules prohibit behaviours such as murder. Secondary rules are power conferring rules which facilitate people who wish to engage in certain activities. According to Hart. if read literally. The significance of the power-conferring aspect of law for the traditional positivist view of law as sovereign commands has also been noted at a more abstract jurisprudential level. they require people to behave or not behave in certain ways. it does not encompass the features of law which modern analytic jurisprudence has identified as needing accommodation within legal analysis. Further reproduction prohibited without permission. Primary rules are duty imposing rules. but which cannot be said to require such engagement in the manner of commands. what Hart called power-conferring rules. Foucault's conception of law as sovereign command is useful in so far as it directs our attention to a prominent aspect of law. which permit people to engage in certain activities and regulate the consequences of that engagement. law is a system of primary and secondary rules. Legal theory has shown how law is not reducible to an imperative form through Hart's critique of Austin's theory of law as general orders backed by threats. 1961) 18-76 124 Reproduced with permission of the copyright owner. theft and rape in order that people can live together without destroying each other.strategies on issues such as abortion that the coercive edge of law is but one aspect of law and does not exhaustively define the legal form. . 188 There are other sorts of laws. such as making a will or getting married. The Concept of Law (Oxford: Clarendon Press. Through Hart's distinction between duty-imposing and power-conferring rules the limits of Foucault's monist conception of law are revealed. but they do not require people to do those activities in 188 HLA Hart. but. The Foucauldian association of negative. and rules of adjudication. They provide a means of. Although his analyses remind us that in contemporary society power is not monolithically held by men. While many feminists have found Foucault's conception of micropower useful in its complication of power's processes. In other words. they also express a need to supplement this notion of power with some means of identifying differential. . Law comes into existence once you have a legal system which provides for the recognition. change and adjudication of rules. for example. changing rules to prevent stasis and allow for reform. aggregate. recognizing rule validity to remove uncertainty as to the validity or invalidity of certain social rules. rules of change. respectively. comment: In arguing that Western societies have gone from 'a symbolics of blood to an analytics of sexuality' he is too quick to give precedence to a generative mode of power. These secondary rules are called rules of recognition. Hart's description of the interrelationship of different types of legal rules provides an internal legal perspective which testifies to the particular significance of legal form without positing a monist theory oflegal form. primary rules on their own are not law. feminists have demonstrated that the kind of power that Foucault associates with the sovereign's right of death . Further reproduction prohibited without permission. and adjudicating when a rule has been broken in order to avoid the inefficiency which might occur through the proliferation of disputes over whether a rule has been broken or not. oppressive levels of power. according to Hart's schema. Diamond and Quinby. repressive qualities with legal power is also problematic because it implicitly assumes that other non-legal forms of power do not operate as orders which affirm the orderer's possession of power and the ordered's dispossession of power.a power operating 125 Reproduced with permission of the copyright owner.the way that primary rules would. Certain kinds of secondary rules confer powers with regard to rules themselves. if we are to draw from his work in articulating both the difference that law makes to the exercise of power. In short. His argument that law is displaced by discipline and that 189 Irene Diamond and Lee Quinby. The opposition of generative power to legal power at work in Foucault needs to be problematized. is because he wants to emphasise the importance of recognising power at the local. Law as power micro The traces of law's sovereign power are neither erased nor transcended as law is displaced by the disciplines in Foucault's interpretation. feminist analyses should help Foucauldians see that these two regimes of power co-exist and often intertwine in contemporary 189 society. micro level. Feminism and Foucault.remains vested in individual men and men as a group. that we have to let go of the sovereign notion of law. therefore. 1988) at xiv. Thus when we consider the conception of law which informs Foucault's work. It is precisely because the dominant conception of law has been persistent in capturing the popular understanding of power and translating it into repression that Foucault thinks it important to show how power actually operates through knowledge. (Boston: Northeastern Press.primarily within kinship systems that is 'essentially a right of seizure: of things.). and the variety of dimensions to power in contemporary societies. 126 . we ought to consider his purpose in characterizing law as the monarch's sovereign power. bodies and ultimately of life itself . The reason Foucault insists that we have to cut off the king's head. (eds. This persistent feature of law is the flipside of Foucault's effort to draw our attention to manifestations of power alternative to those of law. time. Further reproduction prohibited without permission. .Reproduced with permission of the copyright owner. it produces reality. If we refuse the necessary connection between law and repressive forms of power that are posited in Foucault. Foucault uses the legal form to describe sovereign. repressive power strategically in order to distance himself from the theoretical understanding of power he thinks has dominated critical social theory up to this point and to clarify by contrast the theoretical understanding of power which he wants to advocate. it cannot be neutralized or erased. In this sense the issue of whether his description and analysis of law as the commands of the monarchical sovereign is accurate or defensible is less important than how that idea of law is put to work in order to make his argument about power. Further reproduction prohibited without permission. 127 Reproduced with permission of the copyright owner. supra note 146 at 19 16. supra note 175 at 144. as cited in Hunt and Wickham. Power is everywhere. we can put some of his insights to work in clarifying law's micro processes of power. Law as small power is always present. however. . Resistance is not external to law as small power. The micro-physics of power are experienced in everyday life activities. Discipline and Punish.law is a premodern expression of sovereignty is a rhetorical strategy which enables him to drive home a distinction between two different conceptions of power. rather than primarily through one's interaction with centralized aggregate power structures such as the legal system. The individual and the knowledge that may be gained of him belong to this production". rather resistance to power occurs alongside power itself. He says: "In fact power produces. it produces domains of objects and rituals of truth. 190 Power produces. it is ° Foucault. even if it is also produced. What might it mean to characterize law as one of the small powers in which Foucault is so interested? Law as small power is productive. Further reproduction prohibited without permission. The Anti Social Family (London: Verson. 192 Identifying resistance as the necessary companion of power does help us 191 For example. on the importance of what it is possible to say at a particular moment. Foucault says: "there are no relations of power without resistances. 191 A potential problem. Michele Barrett and Mary Mcintosh. however. Barrett and Mcintosh comment: "Foucault's focus on the discursive construction of things by words. but not others. Part of what is interesting about these processes is that the legal categories do not necessarily have to be invoked by or within the legal system in order for them to produce these effects of power. is a perfect framework for looking at familialism as a discourse with normative powers". supra note 177 at 142. Power/Knowledge. Foucault's notion of power as local and dispersed in its constitution of subjects provides a useful theoretical tool for tracing how discourses such as law have produced regimes of truth which make it possible to say some things. . As many feminists have argued. with the idea of law as micro-power lies in the relationship between power and resistance. and will respond differently to the exercise of power. When resistance is understood as an effect of micro-power it can become difficult to theoretically account for why resistance actually happens to greater and lesser degrees. 1991/1982) at 169. Pro-choice advocates' adoption of the right to choose and antichoice advocates' adoption of the fetal right to life as legal tools are power processes which the legal protection of rights makes possible. the latter are the more real and effective because they are fonned right at the point where relations of power are exercised". 128 Reproduced with permission of the copyright owner. it is not possible to remove or erase power. 192 Foucault.at work in every situation. while another has none. it is not true that one person can have all the power. Understanding law as a small power provides us with a means to trace how law has produced realities and knowledge about those realities above and beyond those that are internal to the legal system. but also as something whose actual expression is affected by forces and practices which coexist with the particular exercise of power to which this resistance responds. . Foucault's perspective of law is a resource for the development of a feminist conception of legal form because he provides one way into understanding how law is a public mode of cultural reproduction descriptively. While potential resistance is always a feature of power relations. But that legal form may continue to describe certain legal aspects of contemporary societies even though the historical conditions of absolute 129 Reproduced with permission of the copyright owner. The form of law as a sovereign command may fail to accurately describe the collectivity of legal forms as they actually currently exist. Thus one can read Foucault's point as claiming that potential resistance is formed right at the point of power's exercise.recognize how power creates the conditions for resistance. actual resistance depends on some sort of contextual response to those relations. It makes sense to think of resistance as something which power makes possible. a once dominant legal form can continue to have a residual effect. Descriptively. which allows for the further claim that the actual articulation of that potential resistance depends on the circumstances and on some active engagement with them. But if resistance is reduced to an automatic effect of power. Further reproduction prohibited without permission. Perhaps one useful way to deal with this problem is to read Foucault's understanding of resistance as an internal feature of power relations as a failure to distinguish between the potentiality of resistance and the actuality of resistance. the power/resistance relation risks becoming circular and enclosed. ideologically and discursively. such as paternalism in this instance. As the potential for resistance within legal form concretizes through such processes as public reaction against the High Court in the X case. the Constitution sets its own framework of meaning. Similarly. or example. the legal form of the Constitution as the foundation of nationhood continues to exercise influence even though the historical conditions of decolonization have passed. unlike the processes of public argumentation. the Constitution also operates discursively internally. This helps explain why there are no references to Ireland's colonial history as an explanation for a strong pro-life interpretation of Article 40 3 3. the resulting changes are reconciled discursively by the production of a new framework of interpretation. These residual effects of historical legal forms can operate ideologically to distract attention from more actually dominant external effects on Jaw. For Foucault. law can itself become a discursive production of power/knowledge. as it appropriates the effects of external discourses and as it negotiates the ideological effects of changes internally in its legal forms.monarchy which produced such a legal form no longer exist. 130 . Similarly. The process of constitutional interpretation takes place within a discursive framework which takes that history for granted. As a post-coloniallegal form. Thirdly. As well as operating discursively externally. the national authority of the Constitution disguises the effects of its own recognition of the supremacy of European Community law. the supposed sovereignty of Jaw disguises the actual effects of discipline. Reproduced with permission of the copyright owner. . Further reproduction prohibited without permission. The project of reproducing the authority of the nation as subject was achieved using the national symbolism of the Constitution to make abortion the object of the people's control through the adoption of Article 40 3 3 in 1983. the Pro-Life Amendment was adopted in response to a perceived cultural threat to Irish values. as O'Brien would have us believe.When law regulates abortion through the Constitution it objectifies abortion by making it the object of the people's control. Rational will over abortion is instilled in the nation as a collective public subject. Reproduction's inherently social character makes abortion particularly suitable for this task. one which played on post-coloniality. But once understood as particular examples of legal form. Neither the commodity form nor the sovereign command are capable of capturing all that legal form can be. The adoption of abortion as an object of constitutional regulation is itself a means of social reproduction given this remaking of the national subject. As I argued in Chapter Two. By means of a critical engagement with both Pashukanis and Foucault I have showed the limitations of their respective singular conceptions of legal form. Harnessing the Constitution to the task of protecting pro-life values as the motif of Irishness took advantage of the residual effects of the Constitution's status as a foundation stone of nationhood. nor from some internal legal development. they can provide clues to 131 . But the impetus behind the adoption of abortion as an object of constitutional regulation was not derived from a change in biological reproduction. And it did so during a period when the power of the Constitution to bestow national sovereignty had waned given such developments as Ireland's joining the EEC in 1973. Further reproduction prohibited without permission.Reproduced with permission of the copyright owner. . the Constitution can be understood as a particular legal form which constitutes the nation as a legal subject when it establishes the people's rational control over objects such as territory. 132 Reproduced with permission of the copyright owner. or reproduction. and by creating its own framework of reference to manage the tension between legal content and social content. . Post X. as the means by which the legal subject comes into being as a property owner with rights over an object.the abstract shape of legal form and to the mechanisms by which legal form changes as it moves between the abstract and the concrete. Thus in Chapter Four I show how the interpretation of the constitution as a post-colonial fom1 brought reproduction under national control by creating an absolute interest in fetal life. In Chapter Five I show how that post-colonial legal form had to change so as to accommodate exceptions to the principle of absolute abortion denial. we can define legal form as the means by which legal subjects are constituted as having rational control over objects. Through my critique of Pashukanis I argued that if we generalize from his commodity form. In this way. Through my critique of Foucault I argued that one of the ways that abstract legal form reproduces itself is by using old forms to disguise new. the post-colonial legal form objectifies reproduction by allowing abortion when it is paternalistically decided that a woman needs it because of her life-threatening situation. Further reproduction prohibited without permission. The absoluteness of the public interest masks its hybridity. the courts chose to interpret the fetal right as if there was no need to consider conflicting interests. a value which cannot be violated under any circumstances.4. In spite of the fact that Article 40 3 3 recognizes the right to life of the 'unborn' and the equal right to life of the 'mother'. it is produced as a marker of cultural authenticity. I argue that this interpretation can be explained by the judicial perception that the absolute protection of fetal life was required by the public interest. when the fetal right to life is interpreted as a public interest it is produced as a postcolonial hybrid. which has to be effaced 133 . Absolutist Legal Content: The fetal right to life as an absolute public interest Whereas the last chapter argued that the 1937 Constitution in general and the Pro. This judicial belief in the absolute need of the Irish public to sustain fetal life is more than a concern about the moral status of abortion. The legal construction of an absolute public interest in fetal life reveals two things about the influence of post-colonial legal form on abortion policy. Through judicial interpretation the formal recognition of competing rights becomes the absolute protection of fetal life. the judiciary betray a fear that something fundamental to Irish culture is threatened by the idea of abortion.Life Amendment in particular have a post-colonial legal form. through judicial interpretation. when fetal life becomes. In its angst to prevent women from getting the means to contact extrajurisdictional abortion clinics. In the first place. Post-colonial Legal Form. this chapter will show how post-colonial legal form conditioned the interpretation of Article 40 3 3 in the abortion information cases. In the second place. Reproduced with permission of the copyright owner. . Further reproduction prohibited without permission. 134 Reproduced with permission of the copyright owner. is evidence that the court identified the private interests of a fundamentalist group with the public interest in enforcing the law. hereinafter referred to as SPUC v. Coogan 195 that SPUC should be allowed standing to enforce the fetal right to life in the absence of a particular factual case of pregnancy.R. the usual principle of constitutional interpretation. I argue that the courts' failure in Attorney General v. hereinafter referred to as Attorney General v.its post-colonial moulding of rights discourse towards an authoritarian nationalist end . Open Door Counselling Ltd.) v. Further reproduction prohibited without permission. When the Supreme Court rejected the argument that European Community law was relevant to the determination of the lawfulness of abortion information they departed from their usual willingness to apply EC 193 Attorney General (at the relation of the Society for the Protection of Unborn Children (Ireland) Ltd. [1989] I. Open Door Counselling and Dublin Well Woman 193 and in SPUC v. particularly given that the text of Article 40 3 3. and Dublin Well Woman Centre Ltd.in the interest of portraying the interest in 'unborn' life as a pure symbol of Irishness. did not necessitate such an interpretation. Grogan. and despite the fact that private groups whose interests are not directly affected are not generally permitted to seek the enforcement of law against other private groups. hereinafter referred to as SPUC v. 195 Society for the Protection of Unborn Children (Ireland) Ltd. and the relevance of other legal rules. Grogan and others.R. 753. 734. 194 Society for the Protection of Unborn Children (Ireland) Ltd. [1989] I. v. Grogan 194 to consider how women's constitutional rights might limit the degree of protection due the fetal right to life is evidence of their absolutism. Opendoor. 593. The Supreme Court's acceptance in SPUC v. But the hybridity of the fetal right to life .eventually reveals itself in the X case as the public rejects the judicial assertion of its interest in the absolute enforcement of the fetal right. Coogan. [1988] I.R. v. Coogan and others. . 135 Reproduced with permission of the copyright owner. Coogan.R. Thus. Fitzpatrick and others [ 1961] I. SPUC v. The injunction was issued on the grounds that the defendants' distribution of such information amounted to assistance in the destruction of unborn life and as such was unlawful because it violated the constitutional right to life of the unborn as protected by Article 40 3 3.198 the Supreme Court overturned the decision of Ms. "Private Law Aspects of the Irish Constitution" (1971) 6 Irish Jurist 237.law. the Irish Constitution has been interpreted as conferring a right of action for breach of constitutionally protected rights against persons other than the State and its officials at least since Educational Company of Ireland and another v. In the second case. unlike in other jurisdictions. In so doing they demonstrated a desire to isolate Irish abortion law from the effects of supranational legal regulation and provided further evidence that they interpreted fetal life as an absolute interest of the Irish public. 345. 196 the Supreme Court granted the Attorney General's request and issued a perpetual injunction against two non-directive pregnancy counselling centres 197 preventing them from distributing the names. In the first case. Attorney General v. (President of the High Court) in the High Court which had in general terms prohibited the defendants from counselling or assisting pregnant women to obtain further advice on abortion or to obtain an abortion. 198 Supra note 195. there is no need to establish the involvement of a 'state action' in order to claim a violation of constitutional rights. The Supreme Court injunction was more restrictive than the one issued at trial level in I 986 by Hamilton P. Further reproduction prohibited without permission. Justice Carroll in the High Court and granted the Society for the Protection of Unborn Children (SPUC) standing to seek an injunction preventing an alleged breach of 196 Supra note 193. 197 To North American lawyers it will seem unusual that the plaintiffs attempt to use the Constitution against private organizations was not questioned. Opendoor. See John Temple Lang. telephone numbers and addresses of abortion clinics abroad to women seeking their counselling services. . However. SPUC sought an injunction against the officers of University College Dublin's Students' Union (UCDSU) in order to stop their publication of abortion information on the grounds that it amounted to a violation of the right to life of the 'unborn'. Further reproduction prohibited without permission. Grogan. 199 In the third case. SPUC. Grogan. 136 Reproduced with permission of the copyright owner. SPUC sought an injunction against the fourteen officers of the three above mentioned student unions and their printer/publisher stopping them from publishing information about abortion services abroad in their student 199 Supra note 194. Carroll J. had refused to grant the injunction holding that SPUC lacked the standing reserved to the Attorney General to seek undertakings and injunctions to restrain threatened breaches of the Constitution. decided to seek injunctions against the officers of three students unions: Union of Students in Ireland (USI). SPUC was seeking an injunction to prevent UCDSU publishing information about abortion services abroad in their student union guidebooks. her decision was overruled on the grounds that any party who had a bona fide concern and interest in the protection of the constitutionally guaranteed right to life of the unborn had sufficient standing to invoke the jurisdiction of the courts to take such measures as would defend and vindicate that right. However.constitutional rights. In a private capacity and without the co-operation of the Attorney General. Trinity College Dublin Students' Union (TCDSU) as well as the defendants in the original request for an injunction: UCDSU. at which point the plaintiff. The case was remitted to the High Court to deal with the interlocutory injunctions. SPUC v. in SPUC v. in the Supreme Court. . The defendants argued that even if distribution of information about abortion services was not protected by domestic law. it was protected by EC law which took precedence over domestic law.R. Justice Carroll in the High Court. interpreted the constitutional right to life of the 'unborn' as justifying the constraint of the distribution of abortion information without formally 200 This injunction was finally lifted in March 1997. with the exception of Ms. Grogan and others. which it could not alter. In the High Court. implied a right to give and receive information about the availability of abortion services lawfully provided outside the State. see: Society for the Protection of the Unborn Child v. 137 Reproduced with permission of the copyright owner.guidebooks. Further reproduction prohibited without permission. . 343. The defendants' argument was based on the claim that the freedom of movement of services between Member States. 200 A Fetus's Absolute Right to Life In each of these three cases the Irish judiciary. Carroll J. and the appealable decision not to grant the injunction. the Supreme Court interpreted Carroll J.'s judgment as two decisions: the decision to refer a point of EC law for interpretation to the ECJ. protected by Articles 59 and 60 of the EEC Treaty. declined to grant the interlocutory injunction sought. [1998] 4 I. The Supreme Court granted SPUC the injunction on the grounds that it was in full accord with Irish constitutional law in seeking to restrain an activity declared by the Court to be unconstitutional as infringing the right to life of the unborn protected by Article 40 3 3 in assisting the destruction of that right. On appeal. on the ground that she first required an interpretation of European Community (EC) law from the European Court of Justice (ECJ) in order to be able to determine the lawfulness of the provision of information about abortion services legally provided abroad. that the fetal right to life required the relevant injunctions requested by SPUC. the judiciary adopted an absolutist interpretation of the value of fetal life. 138 . the language of Article 40 3 3 suggests that a court ought to have regard to other interests in interpreting what it means to vindicate the right to life of the 'unborn'. without substantively reasoning. rather than to 'not do' something. and that everyone must observe such values.framing their method of interpreting competing legal claims201 and with little or no substantive consideration of how other constitutionally endorsed interests should be accommodated when enforcing the fetal right to life. In other words.it requires the State to act for the protection of fetal life and not merely to refrain from acting against fetal life. Absolutism insists that particular values have absolute weight in all contexts.ought to increase. changes which might 201 James Friedman criticizes the courts for failing to develop an adequate interpretative framework for competing constitutional rights in "On the Dangers of Moral Certainty and Sacred Trusts: The Judgments in the SPUC case and the Issue of Free Speech". rather than decrease. Therefore. and that the latter right may be qualified by such interests. The fact that Article 40 3 3 adopts positive rather than negative terminology . that they impose positive obligations rather than simply negative ones. it envisages that the State has to take responsibility for the changes it makes to the status quo through its positive action. Disregard for Article 40 33's qualifying clauses Article 40 3 3 requires the State to defend and vindicate the right to life of the 'unborn' as far as practicable and with due regard to the equal right to life of the mother. judicial concern for how such State action might be qualified. ( 1988) l 0 Dublin University Law Journa/71. In asserting. because Article 40 3 3 contemplates that the State might have to 'do' something. Further reproduction prohibited without permission.Reproduced with permission of the copyright owner. . Ireland [1985] IR 532. On 204 appeal to the Supreme Court. Opendoor. . Opendoor. They note further that: "there are few rights.which can be regarded as absolute or not subject to qualification". The Supreme Court rejected the claim made by prisoners who were husband and wife and serving life sentences that the absence of conjugal facilities was an infringement of their family rights. 203 Murray v. the courts did not have regard to the qualifying clauses of Article 40 3 3 when they considered whether the distribution of abortion information should be restrained as a breach of the fetal right to life. declared: "I do not.affect other legal interests. in the circumstances of this case. In Attorney General v.however fundamental. 204 Supra note 193 at 617. rights which the Supreme Court has held to be restrictable. Furthermore.J. 203 If the courts can qualify rights which are framed in such unqualified language. Article 41 1 1 refers to the 'inalienable and imprescriptible rights' of the family. have to have regard to the effect of'the equal right to life of the mother' on the right to life of the unborn acknowledged by this Article". SPUC v. If such an action were to have the effect of offending another constitutional interest. In the High Court in Attorney General v. Coogan or SPUC v. then the court might be justified in finding that the action was more than what was practicable in defending the fetal right to life. other fundamental rights provisions of the Irish Constitution adopt more absolutist language that Article 40 3 3. then it is even more difficult to explain how it is consistent as a matter of legal interpretation to construe a right which is framed in qualified language as if it was unqualified. said: It was not part of the facts of this case nor of the submissions of the defendants that the service which they were providing for pregnant women in relation to the 202 See Report of the Constitution Review Group (Dublin: Stationery Office. Hamilton P. 1996) at 215 where the Review Group argues that the constitution's qualifying clauses need an overhaul. Finlay C. 202 For example. such as women's rights. Grogan. Further reproduction prohibited without permission.139 Reproduced with permission of the copyright owner. . While the judiciary expressed no hesitation in enforcing the private right of the fetus. in the case which eventually lifted the injunction on appeal in March 1997. and Mr. Justice Denham. they saw no need to even consider how the private right of the woman might limit the interest in protecting fetal life. and Justices Barrington and Blayney were of the view that the order for the injunction could not be confmned on appeal. Justice Keane. supra note 200 at 19 and 36 respectively. two of the five Supreme Court judges took the view that this earlier decision not to consider the equal right to life of the mother was an erroneous legal finding. Grogan. 206 Mrs. Once the Supreme Court held that there was no need to have 'due regard to the equal right to life of the mother'. because the law as it now was (i. Their conclusion that the absence of a particular woman asserting her right to life before the court was sufficient to omit consideration of a woman's right altogether was an amazing deduction given that the fact that there was no particular fetus before the courts never stopped them from asserting the rights of the 'unborn'. given that there was no particular woman claiming that right before the court. the due regard to the equal right of life of the mother mentioned in the sub-section of the Constitution which I have already quoted. Interestingly.e.obtaining of abortion outside this jurisdiction was in any way confined to. and this portion of that sub-section did not therefore arise for interpretation or decision 205 in this case". at 621. post I 995 Act's legalization of abortion information) did not so require. or especially directed towards. the first woman appointed to the Supreme Court. 206 205 Ibid. 140 . Chief Justice Hamilton. SPUC v. the two cases which followed also assumed that there was no need to consider Article 40 3 3's reference to the pregnant woman's right to life as a limitation on the fetal right to life. Further reproduction prohibited without permission. .Reproduced with permission of the copyright owner. establishes an independent existence and 207 Interestingly. However. . 141 Reproduced with permission of the copyright owner. then one fails to acknowledge and take responsibility for the way in which the former is dependent on the latter. "Culture.The factual context of pregnancy means that a woman sustains a fetus within her body during pregnancy. Any defence of fetal legal interests will necessarily impact on a pregnant woman's interests. rather than exercise caution in the absence of any particular factual case. the courts vindicated the right to life of the unborn in broad general terms without adequately considering the possible consequences for actual women. the body of the woman is never addressed. ( 1996) Sociology: The Journal of the British Sociological Association 279-298. The fetal right to life is discussed in these cases in general abstract terms which conceptualize the fetus as an independent rights bearing entity so that the concrete reality of the fetal position within. The judges denied a woman's role in pregnancy at the same time as they relied on her to sustain that pregnancy. Further reproduction prohibited without permission. In this way the courts obscured the significance of birth as the moment when the fetus emerges from the woman's body. community and responsibilities: Abortion in Ireland". and dependence on. the courts also disregarded the significance of the factual circumstances of pregnancy for the interpretation of the legal interests raised.Disregard for the factual context of pregnancy In failing to consider how the fetal right to life might be qualified by reference to a woman's rights. Any action taken on behalf of or towards the fetus will necessarily affect the pregnant woman. Elisabeth Porter argues that the limits of individualistic rights-based arguments and the dominance of the claims of collective responsibilities in an Irish context mean that abortion should be defended from responsibility based arguments rather than from rights based arguments. 207 If one considers how to defend a fetal right to life in isolation from a woman's right to life. Elizabeth Porter. Purdy (eds.) Feminist Perspectives in Medical Ethics (Bloomington: University oflndiana Press. 209 SPUC v. That would however provide no justification for their elimination.becomes capable of developing relationships with people other than the pregnant woman. in Helen Bequaert Holmes and Laura M. 208 See further: Mary Anne Warren. the inclusion of the fetus within this category erases the presence of a woman in pregnancy and mistakenly suggests that fetal interests can be considered in isolation from those of the pregnant woman. or those who are unable to look after themselves too often occurs throughout the world. 208 For example. The total abandonment of young children or old persons or of those who by reason of infirmity. supra note 194 at 767. Concern for the fetus is necessarily mediated through the woman within whom it is nourished. comments: The destruction of life is not an acceptable method of birth control. 1992) 198215. mental or physical. The fetal location within the body of the pregnant woman means that it cannot develop social relationships with other people who could provide for its needs. While one might have sympathy with Walsh J. Grogan. "The Moral Significance of Birth". Grogan Walsh J. 209 This equation of unwanted pregnancies with abandoned young children or old persons in terms of 'those who are unable to look after themselves' fails to acknowledge how the conditions of pregnancy make the fetus distinct. 142 .'s protest at the lack of care and respect for those who are unable to look after themselves. in SPUC v. The qualification of certain pregnancies as being "unwanted" is likewise a totally unacceptable criterion. There is clear evidence that they are unwanted by those who abandon them. Reproduced with permission of the copyright owner. . Further reproduction prohibited without permission. Given the sweeping nature of this interpretation one would consider that Hamilton P. . Opendoor. In failing to consider how the fetal right to life might be qualified Hamilton P. emphasis added. But Hamilton P. Further reproduction prohibited without permission. So. If a person's right to life includes a right to be guarded against all threats to his or her existence then that imposes a duty on others to guard that person against such threats. Apart from finding it necessary to assert the right to life of the unborn after birth.Disregard for restrictions on the ordinary right to life The courts also ignored the 'as far as practicable' qualification in Article 40 3 3 when they interpreted the fetal right to life as justifying the limitation of the distribution of abortion information. and that it lies not in the power of a parent to terminate its existence and that any action on the part of any person endangering that life is necessarily not only an offence against the common good but also against the guaranteed personal 210 right of the human life in person. Hamilton P. In the High Court in Attorney General v. supra note 193 at 617. X could be under an obligation to guard Y against a threat to Y's existence posed by Z. Hamilton P. On this interpretation. commented: [the] right to life of the unborn includes the right to have that right preserved and defended and to be guarded against all threats to its existence before and after birth. extended to the fetus rights which persons do not usually have. whether or not Z acted on that threat. offered no explanation for why he considers it necessary to impose an obligation on the pregnancy 210 Attorney General v. interpreted this interest as a stronger one that the ordinary right to life. a pharmacist could be violating A's right to life if she gave B drugs to which A was fatally allergic whether or not B gave A those drugs. They construed the fetal right to life as if it was an unrestricted right to life. would explain why he considered that the fetal right to life should impose such an obligation. 143 Reproduced with permission of the copyright owner. Opendoor. on this view. Thus the right to life of the unborn was attributed absolute value. Opendoor. asserts that 'it must follow from' the right to life of the unborn that there could not be an implied right to abortion information. if availed of.counselling centres not to threaten the existence of the fetus by offering information which a pregnant woman might or might not act upon. outside the State which. ibid.J. Coogan Walsh J describes the student union's publication of abortion information in their student manuals as "activities designed not merely to evade the 211 Attorney General v. Again. Within the terms of Article 40. would have the direct consequence of destroying the expressly guaranteed constitutional right to life of the 211 unborn. sub-s. Not only did Hamilton P. It must follow fi'om this that there could not be an implied and unenumerated constitutional right to information about the availability of a service of abortion. 3. rather than a threatened actual. said: The performing of an abortion on a pregnant woman terminates the unborn life which she is carrying. emphasis added. In SPUC v. His reference to 'if availed of indicates that a threatened potential. Finlay C. he attributed it superior value than a right to life might otherwise have. 3 it is a direct destruction of the constitutionally guaranteed right to life of that unborn child. at 625. . it was given more weight than other constitutional rights and interpreted as imposing positive obligations without any consideration for the harmful consequences on women of such an interpretation.J. fail to consider how the right to life of the unborn might be qualified. s. breach of the fetal right to life is sufficient to warrant the limitation of other constitutional interests when enforcing the fetal right to life. but does not provide any explanation as to why this must be so. In the Supreme Court Finlay C. 144 Reproduced with permission of the copyright owner. . Further reproduction prohibited without permission. The assumption that Article 40 3 3 justifies absolute protection of fetal life fails to take into account the fact that there are circumstances in which a right to life is not construed in law as imposing a positive obligation on others to prevent a violation of that right. supra note 194 at 766.constitutional rights but totally to destroy them". in which a right to life was constitutionally vested.214 recognizing a fetal right to life does not mean that it is never justifiable to kill the fetus. said in the Supreme Court: "the very wording of the Eighth Amendment to the Constitution forecloses any attempt to argue that life does not exist before birth". 212 SPUC v. supra note 195 at 743. along with the rest of the Supreme Court. 213 He assumed. 213 SPUC v. Thomson argues that even if one considers that the fetus is a person. In SPUC v. Walsh J. that the issue in question is the existence of life before birth. conferred an unrestricted right to life. Coogan. As Judith Jarvis Thomson has argued in her application of the 'good Samaritan' argument to abortion. A pregnant woman's interest in control of her body may justify a denial of the right to life of the fetus. The judicial interpretation of the fetal right to life as justifying the relevant injunctions was based on the assumption that that the existence of a form of human life. (1971) 1 Philosophy and Public Affairs 47. 212 He also collapses the distinction between the actual and the potential destruction of fetal life in his interpretation of the distribution of abortion information as an activity designed to destroy a constitutional right. a pregnant woman is not obliged to allow it the use of her body. rather than the nature of the legal claims which derive from the recognition of a fetal right to life. Grogan. . 214 Judith Jarvis Thomson. Grogan. "A Defence of Abortion". 145 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. . the recognition that no-one is under an obligation to donate body organs where they are needed for the survival of another person. Thomson illustrates the di. She argues that the fact that it would be nice of that person to continue biologically supporting the violinist does not in itself impose an obligation on the person not to unplug herself In other words. for example. 146 Reproduced with permission of the copyright owner.One of the ways in which Thomson makes her point is by asking her audience to consider the case of a person who woke up one morning to find that her biological system was supporting a famous violinist who would die if 'unplugged'.tinction between determining that X ought to do something for Y and determining that Y has a right against X to do it.. the legal recognition of a right to life is not usually considered as conferring an absolute right to life. the courts interpreted the right to life of the unborn as imposing an obligation on any person not to endanger that life through any action. at 57. not even a parent to a child. The relevant question is not whether the right to life was violated. This interpretation of the fetal right to life conflicts with the more general policy in 215 Ibid. . However. Thomson claims that "the right to life consists not in the right not to be killed. 215 Her analysis points to the fact that other factors play a role both in determining when it is appropriate to move from a recognition that an interest ought to be protected to actually grounding a right. This position is supported in law by. but whether it was unjustifiably violated. but rather in the right not to be killed unjustly". Within the liberal democratic tradition which informs the Irish Constitution's adherence to fundamental rights. Further reproduction prohibited without permission. Hence in McFall v. should have informed the interpretation of Article 40 3 3. and one could not imagine where the line would be drawn. 217 McFall v. See Susan Bordo. by contrast.D. Bordo contrasts cases like McFall v. 3d 90. ibid. at 79.law which recognizes the hann that may be done in imposing a positive obligation to save someone's life. & C. Disregard for the impact of other constitutional rights As a matter of constitutional interpretation the courts should have interpreted the fetal right to life not as an isolated legal rule but in relation to the whole Constitution of which it is a part. Western Culture and the Body (Berkeley: University of California Press. is her biological. cited in Janet Gallagher.217 The fact that the fetus has a right to life does not in itself justify interpreting that right as imposing positive obligations on others without explanation.. "Are Mothers Persons? Reproductive Rights and the Politics of Subjectivity" in her Unbearable Weight: Feminism. Other constitutionally endorsed interests. "Prenatal Invasion and Interventions: What's wrong with fetal rights?" (1987) 10 Harvard Women's Law Joumal9. Judge John Flaherty said: The common law has consistently held to a rule which provides that one human being is under no legal compulsion to give aid or to take action to save that human being or to rescue . Shimp in which "bodily integrity is privileged so highly that judges have consistently refused to force individuals to submit without consent to medical treatment even though the life of another hangs in the balance" with cases of court ordered obstetrical interventions in which "the essence of the pregnant woman. The Courts normally 216 (1978) 10 Pa. To do so would defeat the sanctity of the individual. such as women's constitutional rights. purely mechanical role in preserving the life of another". For our law to compel the defendant to submit to an intrusion of his body would change every concept and principle upon which our society is founded. Shimp 216 an American court refused to compel a man to undergo a bone marrow transplant regarded by doctors as his cousin's only chance to survive aplastic anemia. 147 .. 1993) 71-97. and would impose a rule which would know no limits. Shimp. . Further reproduction prohibited without permission.Reproduced with permission of the copyright owner. which he held was one of a residue of personal rights contemplated by Article 40 3 1. 's finding in the High Court that there was a right to bodily integrity. 1984) at 299. a kind of principle of constitutional coherence. This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity. 220 equality/ 21 218 J. physical and moral. and. Although the Supreme Court has held that where a hannonious interpretation is not possible it may be necessary to hierarchize constitutional rights. the courts dismissed or ignored other constitutionally endorsed interests in their interpretation of the fetal right to life as prohibiting the assistance in the destruction of the fetus. 312 the Supreme Court affirmed Kenny J. which provides: "The State guarantees in its laws to respect. Kelly describes this doctrine thus: This is the principle that constitutional provisions should not be construed in isolation from all the other parts of the Constitution among which they are embedded. "Irish Abortion: Seeking Refuge in a Jurisprudence of Doubt and Delegation". by its laws to defend and vindicate the personal rights of the citizen". 219 the first task of the Court is normally to seek a harmonious interpretation. Attorney General [1965] I. Shaw [1982] I. (1992) 19 Journal of Law and Society 454 at 462. 21 While the Irish Constitution does explicitly recognize a right to equality in Article 40 1. The constitutional rights of bodily integrity. 219 See The People v. as human persons. but should be construed as to hannonise with the other parts. The Irish Constitution (Dublin: Jurist Publishing. and of social function". and wished those values to penneate 218 their charter evenly and without internal discordance. Marie Fox and Therese Murphy. its limitations are obvious: "All citizens shall. However. 1 where the right to life was held to prevail over the right to 220 liberty.R. be held equal before the law.M. Fox and Murphy comment that formulations of abortion as an equality right might not work in an Irish context given that "the equality guarantee in the constitution has suffered from under use". as far as r:racticable. 148 .R. and to consider what other constitutional provisions meant for its interpretation. This principle of constitutional interpretation should have guided the courts to contextualize the fetal right to life with regard to other provisions of the Constitution. This doctrine is no more that a presumption that the people who enacted the Constitution had a single scale of values. when construing constitutional provisions. Kelly.apply the doctrine of hannonious interpretation. In Ryan v. Reproduced with permission of the copyright owner. . Further reproduction prohibited without permission. a right to marital privacy was recognized. protected by Article 40 6 I. shall not be used to undermine public order or morality or the authority of the State. The publication of utterance of blasphemous. the Supreme Court implicitly accepted that the plaintiff had an individual right to privacy. [1984] I. which is acknowledged by the Constitution of Ireland. the rights of association and freedom of expression and the right to disseminate information cannot be invoked to interfere with such a fundamental right as the right to life of the unborn. they were subordinated to the fetal right to life without any substantial consideration of why they should be so subordinated. these rights were barely mentioned and. Attorney General. a matter of such grave import to the common good. Opendoor Hamilton P. Friedman argues that freedom of expression is a fundamental democratic value in facilitating challenge to the status quo and "a healthy scepticism that we have not yet created the best of all possible worlds". however. In Norris v. However. supra note 35. 225 222 In McGee v. subject to public order and morality. Opendoor to subordinate freedom of expression. The education of public opinion being. Friedman has argued that the courts were wrong in Attorney General v. 36. supra note 201at 78. while preserving their rightful liberty of expression. or indecent matter is an offence which shall be punishable in accordance with law". including criticism of Government policy. 222 and freedom of expression 223 were all relevant to the issue before the courts. the cinema. said without providing an explanation for his conclusion: The qualified right to privacy.privacy. 149 . the press. such as the radio. Attorney General. 225 Supra note 193 at 617. He suggests that as freedom of expression is a value fundamental to democracies. 224 In Attorney General v. to the right to life of the unborn. 223 Article 40 6 1 i provides "The State guarantees liberty for the exercise of the following rights. when they were. seditious. it should have been considered as qualifying the fetal right to life. The rights of the citizens to express freely their convictions and opinions. the State shall endeavour to ensure that organs of public opinion. 224 Friedman.R. . Further reproduction prohibited without permission.Reproduced with permission of the copyright owner. 226 It is interesting to note that in a different context Hamilton P. 226 Ibid. . be they written or telephonic. In Kennedy and Arnold v. are deliberately. Ireland. 227 he said: The nature of the right to privacy must be such as to ensure the dignity and freedom of an individual in the type of society envisaged by the Constitution. Feminists are entitled to ask why women's 'dignity and freedom' as individuals in a democratic society did not stop the court from intruding on and interfering with their 'communications of a private nature' in the context of abortion information. 228 consciously and unjustifiably intruded upon and interfered with. The courts compromised other constitutional interests in order to absolutely protect the fetal right to life. The dignity and freedom of an individual in a democratic society cannot be ensured if his communications of a private nature. 587. 228 Ibid.J. reiterated the above saying: "I am satisfied that no right could constitutionally arise to obtain information the purpose of the obtaining of which was to defeat the constitutional right to life of the unborn child". independent and democratic society. at 625. Rather they dismissed the relevance of any concern other than the right to life of the unborn. 227 [1987] I. This case concerned the plaintiffs' successful claim for damages on the grounds that their constitutional rights had been violated by the unjustified tapping of their telephone conversations pursuant to a warrant issued by the Minister for Justice. was much less inclined to play down the significance of the right to privacy.In the Supreme Court Finlay C. at 593.R. The courts never even got to the point of weighing constitutional concerns against each other. a sovereign. namely. .150 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. But if there is a public interest in fetal life there is also a public interest in women's life. Opendoor. clothing and habitation. an interest which also entails protecting women's health and welfare. As Walsh J. dismissed it out of hand: It was strenuously submitted on behalf of the defendants that if they did not provide this counselling service and.J.R. health and welfare might justify the provision of abortion information. the courts ignored the possibility that a public interest in women's lives. supra note 195 at743." However. the right to preserve and defend that life (and to have preserved and defended) that life. said: "What is at issue in this case is the defence of the public interest in the preservation of the private right which has been guaranteed by the Constitution". An Bord Uchtala means the Adoption Board. An Bord Uchtala. 230 [1980] I. did not provide the 229 SPUCv. v. 229 The inability of the fetus to independently assert its private rights contributed to the courts' recognition of a public interest in protecting the fetal right. 32 at 69. also said in G.Disregard for a public interest in womanhood. and the right to maintain that life as a proper human standard in matters of food. For example. Coogan Walsh J. They relied on this public interest to justify the order for injunctions prohibiting the distribution of abortion information. Finlay C. 151 . in SPUC v. Coogan. When women's health was raised as a possible justification for not restraining pregnancy counselling services in Attorney General v. 230 the right to life is composed of quality of life interests as well as those of biological existence: "The right to life necessarily implies the right to be born. assertion of a public interest in the fetus The courts supported their defence of the right to life of the 'unborn' despite the absence of a particular fetus in the courtroom by reference to the public interest in the protection of fetal life. in particular. .Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. emphasis . Even if it could be established. a normative health based argument could have. would succeed in obtaining an abortion in England.. But the Chief Justice was of the view that even if harm to women's health as a result of the injunctions could be established it was not a 'valid reason' to refuse to restrain the defendants' activities. supra note 193 at 624. however. name and address of and method of communication with a properly run clinic the probability was that in many or all cases the pregnant woman concerned. Opendoor. 231 At one level. Even if the evidence at the time did not support an empirical argument that women's health justified refusing to restrain the defendants' activities. I am satisfied. Women's health is a value to which the Court should properly have had regard. the Supreme Court demonstrated here a lack of concern for the probable effects that their interpretation would have on both the rate of abortion and on women's health. There are no grounds for inferring it from any of the facts which are agreed as the basis for the trial of the action.. and probably in circumstances less advantageous to her health. the Court was aware that the injunction was unlikely to do much in 231 Attorney General added. v.. Given that women were travelling in their thousands to avail of abortion services abroad. it would not be a valid reason why the Courts should not restrain the activities in which the defendants were engaged . therefore. the failure to accommodate women's health as a relevant interest is further evidence of the claim that women's rights were absolutely subordinated to the fetal right to life. perhaps through reference to the right to bodily integrity. that it is no answer to the making of an order restraining these defendants' activities that there may be other persons or the activities of other groups or bodies which will provide the same result as that assisted by these defendants' activities.identification. No evidence was adduced to support this contention. in determining the degree of protection that the fetal right to life merited. At another level. who had decided upon the option of abortion. 152 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. . M.. 232 and possibly to less reputable services. it actually would have little effect in protecting that life. since women would be more likely to present for abortion later in their pregnancies. the defendants' argument about women's health with the claim that ineffectiveness of the order was not a justification for not issuing it. commented: "One of the fundamental political rights of the citizen under the Constitution. Dublin. . indeed one of the most valued of his rights.stemming the 'destruction' of fetal life.A. and Mahon et al. 233 Supra note 195 at 744. the Court left women's health out of the constitutional picture. Their adherence to a literal approach and their desire to be seen to be taking a stand against the distribution of abortion information allowed the Court to erase women's health as a valid concern. The judges should have also been aware that by making it more difficult for women to find out about safe and legal abortion services abroad they were increasing the risk to women's health. University College. In answering. Further reproduction prohibited without permission. thesis. While granting the order allowed the Court to be seen to be protecting fetal life. and would make matters worse by making abortions at a later stage in pregnancy more likely. Women's Studies. 233 Apart from implying that 232 See Catherine Conlon. Ireland. or avoiding. The life most directly affected in these cases is the unborn life and that is the very one which cannot directly assert this right in court". The Reality of Abortion for Irish Women: An Analysis of the Pregnancy Counselling Service Offered by the Irish Family Planning Association. is that of access to the courts. supra note 9. In SPUC v. In denying that the possible ineffectiveness of the order should constrain their decision the Court favoured a policy of adhering to a literal interpretation of the fetal right in question over a more purposive approach which would take into account the effects of the order on the legal interests in question. Coogan Walsh J. 153 Reproduced with permission of the copyright owner. 1994. as this obiter dicta of Walsh J. in order to consolidate the constitutional prioritization of fetal life. 154 . A pregnant woman is no longer considered as a woman but as a pregnancy. namely the right to protect the life of her unborn child and the right to protect her own bodily integrity against any effort to compel her by law or by persuasion to submit herself to an abortion.we should consider the 'unborn' as a citizen. no chance is lost to assert other legal rights on behalf of the fetus. He suggested that the pregnant woman is obliged not to endanger the fetus without appreciating that he was commenting on how conflicts of rights between woman and fetus should be resolved. in SPUC v. To the extent that a woman's rights are considered in this jurisprudence. Such rights also carry obligations the foremost of which is not to endanger or to submit to or bring about the destruction of that 234 unborn Iife. equality. Walsh J. Thus a pregnant woman's rights and responsibilities are defined by reference to her pregnancy. was clearly of the view that the pregnant woman is less affected by the provision of abortion information than the fetus. If a pregnant woman cannot do anything which might harm the fetus then effectively her rights are suspended for the duration of the 234 Supra note 194 at 767. the fetus still assumes centre stage. made these comments about the obligations imposed on a woman by pregnancy even though he ostensibly was refusing to consider how her 'equal right to life' qualifies the fetal right to life. Grogan demonstrates: When a woman becomes pregnant she acquires rights which cannot be taken from her. such as the right of access to the courts. Furthermore. Walsh J. free expression and bodily integrity are judicially ignored. While the implications of a woman's constitutionally endorsed rights of privacy. Further reproduction prohibited without permission.Reproduced with permission of the copyright owner. . 237 43 Geo. or birth. could be interpreted as endangering a fetus. he further obliged her not to endanger the fetus. 58. and this particular reference to conception as the point from which protection begins.pregnancy. Hamilton P. as the 1803 statute 237 had. III. 235 However. The general failure of the courts to clarify their interpretation of the 'unborn' when enforcing its right to life. he justified this assumption simply by reference to sections 58 and 59 of the Offences against the Person Act. c. as distinct from viability. Disregard for other relevant law In A G v. Opendoor. was of the view that the relevant statute law afforded the fetal right to life statutory protection from the date of its conception. 100. Opendoor. should be the relevant criterion for assessing when an abortion was an unlawful abortion. He failed to take into consideration that the 1861 Act could be interpreted as making abortion lawful in certain circumstances. 1861. this meant that the protection of the fetus in the womb dates from conception and not from quickening. c. for example. 24 & 25 Viet. Not only did he implicitly render the woman's equal right to life devoid of substance.236 He inferred that since the 1861 statute no longer referred to the woman as being 'quick with child'. and he failed to explain why conception. a position which could also have implications for the legal 235 AG v. The courts interpreted the right to life of the 'unborn' as if it could limit other constitutional rights at any stage of pregnancy. 236 155 . is further evidence of their absolutist approach. supra note 193 at 598. This could severely restrict a woman's freedom during pregnancy as behaviour as ordinary as travelling in a car. . Further reproduction prohibited without permission.Reproduced with permission of the copyright owner. shall unlawfully administer to herself any poison or other noxious thing. (Ireland) no. 238 For a review of the historical development of the criminal prohibition of abortion. Doctors and the Law: Some Aspects of the Legal Regulation of Abortion in England from 1803 to 1982. [to imprisonment for a term not exceeding five years].use of some forms of contraception. shall be guilty [of an offence] and being convicted thereof shall be liable. "The Criminal Sanction as it Relates to Human Reproduction: The Genesis of The Statutory Prohibition of Abortion". which Every woman. 1861. Abortion. See also John Keown. to be kept in penal servitude for life. . knowing that the same is intended to be unlawfully used or employed with intent to procure the miscarriage of any woman. or shall unlawfully use any instrument or other means whatsoever with the like intent. who with intent to procure her own miscarriage. ( 1984) 4 The Journal of Legal History 20. 1988). 239 Acts of the Oireachtas. b) the doing of any other thing the doing of which is prohibited by section 58 or 59 of the Offences Against the Person Act.. or any instrument or thing whatsoever. 1979 239 provides: Nothing in this act shall be construed as authorizing a) the procuring of an abortion. see: Shelley Gavigan. Whosoever shall unlawfully supply or procure any poison or other noxious thing. with child. 156 Reproduced with permission of the copyright owner. The judicial failure to entertain the possibility that abortion was lawful in any circumstances should have been avoided by an analysis of the relevant statute law. 20. Further reproduction prohibited without permission. with intent to procure the miscarriage of any woman whether she be or not be with child. shall unlawfully administer to her or cause to be taken by her any poison or other noxious thing or shall unlawfully use any instrument or other means whatsoever with like intent shall be guilty of felony. and being convicted thereof shall be liable at the discretion of the Court. whether she be or be not. provide: 238 are sections 58 and 59 of the 1861. The relevant statutory provisions on abortion Offences against the Person Act. (Cambridge: Cambridge University Press. Section 10 of the Health (Family Planning) Act. being with child.. and whosoever. Macnaghten J. interpreted section 58 as making unlawful those abortions which were not done in good faith for the purpose only of preserving the life of the pregnant woman. 240 As there is no direct Irish authority on the issue. He also determined that an abortion performed on the grounds that the pregnancy was likely to make the woman a 'physical or mental wreck'. which provided that: "no person shall be found guilty of an offence under this section unless it is proved that the act which caused the death of the child was not done in good faith for the purpose only of preserving the life of the mother". 19 & 20 Geo. Bourne. an Irish court would consider a relevant decision of another common law jurisdiction in determining the significance of 'unlawfully'. Findlay. was performed for the purpose of preserving her life. at 243 691. 243 1929. and the Report of the Constitution Review Group. "Criminal Liability for Complicity in Abortions Committed outside Ireland".J. 241 Supra note 31. was of the opinion that 'unlawfully' meaning was not "a meaningless word"/ 42 and thought it imported the expressed in the proviso of section 1 of the UK Infant Life (Preservation) Act. V c. (1980) Irish Jurist 88 at 89. . and that.As a matter of statutory interpretation section 58's prohibition of unlawful abortions implies that abortion may be lawful. terminations of pregnancy performed in cases of 240 See M. If Macnaghten J. However. then this interpretation would probably not be accepted as informing Irish law given that the 1929 Act does not form part of Irish law. supra note 202 at 276. at minimum. 241 Macnaghten J. 242 Ibid. In R.'s interpretation of the word 'unlawfully' was dependent on the 1929 Act. it has been argued that this is not the case. v. This case concerned the prosecution of a doctor under the 1861 Act who had performed an abortion on the fourteen year old survivor of a gang rape. . Further reproduction prohibited without permission. 157 Reproduced with permission of the copyright owner.34. supra 245 Ibid. there was textbook and judicial authority available that demonstrated that therapeutic abortion to protect the woman's life and health was both lawful and common medical practice in England well before 1938". and he used the proviso of section 1 of that Act because he believed it expressed a meaning that was compatible with section 58. Determining how to vindicate a right to life 244 See Whitty. Also. at 858. and no consideration of women's interests by reference to 'the equal right to life of the mother'. no regard for the context of pregnancy in considering the 'as far as practicable' limitation. SPUC v. There was no substantive discussion of what it means to vindicate the right to life of the unborn.Attorney General v. In its construction of the constitutional right to life of the unborn as justifying the restriction of women's right to access information about abortion services. not necessarily definitive of it. 244 Macnaghten J. Coogan. note 26 at 862. Grogan or SPUC v. In fact. The legal consequences of defending a fetal right to life are not as selfevident as the Court appears to have assumed. fetal life merits this degree of protection. 158 . rather than explained why. as Noel Whitty comments: "This inappropriate reliance on the proviso in the 1929 Act resulted from the belief that there was no other legal authority on the meaning of 'unlawfully'. 245 However. the possibility of abortion being lawful was simply not entertained in the first cases to be litigated on Article 40 3 3 .cancer of the uterus and ectopic pregnancy are lawful abortions under the application of the 1861 Act in Ireland. Opendoor.'s attribution of importance to the word 'unlawfully' in section 58 was independent of the provisions of the 1929 Act. the Supreme Court assumed that. Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. . in any particular situation requires consideration of the facts and values raised by that situation. Determining how to defend a fetal right to life requires accommodation of the fact of pregnancy and the values of women's rights to life, equality and freedom. There is nothing about Article 40 3 3 which precludes the consideration of such interests. The failure of the Supreme Court to engage in such consideration is therefore significant. It indicates that doctrinal interpretation cannot be the only explanation for the Court's ascription of superior value to the fetal right to life. In interpreting Article 40 3 3 as prohibiting 'assistance' in the destruction of the fetus the Court assumed that any potential interference with the fetal right to life was never justified. This degree of prioritization of fetal life over other constitutionally endorsed values indicates a tendency towards absolutism. SPUC as the guardian of the public interest in fetal life When the courts permitted SPUC to act in the capacity of the Attorney General's relator, and later to bring an action to prevent the violation of fetal life in its own name, they interpreted the fetal right to life as an abstract value whose enforcement was so significant that it did not require the presence of an actual woman or fetus whose legal interests were being compromised. The appeal courts denied the significance of a concrete factual context of pregnancy for the interpretation of law in order to allow themselves to assert the fetal right to life in the broadest terms possible. Given that appellate courts do not deal with points of fact, but with points of law, they are usually required to exhibit restraint in limiting their legal findings to the facts of the case before them. However, the 159 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Irish courts chose to interpret the fetal right to life in general tenns which constrained the distribution of information about abortion services without the benefit of assessing how a particular factual context of pregnancy affects the legal interests raised. In Attorney General v. Opendoor the defendant pregnancy counselling centres challenged the plaintiff Attorney General's standing in the proceedings on the grounds that: the action did not concern any specific pregnant woman and her unborn child and by reason of that fact it was alleged that the Court should in its discretion refuse to grant any relief to the Attorney General because by doing so it might affect the position of the mother of an unborn child who had not been heard. 246 Generally, as a matter of law, an applicant for a particular legal remedy must establish to the satisfaction of the court that she or he has standing in the matter by reason of her or his interest in the proceedings. 247 However, both the High Court and the Supreme Court dismissed this objection, contending that the Attorney General was a particularly appropriate person to invoke the court's jurisdiction in this matter. Furthermore, the Courts held that when the Attorney General sues with a relator/ 48 in this case SPUC, the relator need have no personal interest in the subject except his or her interest as a member of the public. In the High Court Hamilton P. commented that if the defendants were acting unlawfully it was "in the public interest and the interest of the common good that they be 246 Supra note 193 at 621-2. Although SPUC had initially issued proceedings against the defendants, they subsequently obtained leave to amend the proceedings which were converted into proceedings in the name of the Attorney General at the relation of the society. 247 Under Irish law, the requirement of standing for litigants in cases involving challenges to the validity of statutes on constitutional grounds is more demanding than in cases where a constitutional guarantee is invoked independent of any statutory provision. See Cahill v. Sutton [1980] I.R. 269. 248 On the relator procedure see: Michael Forde, Constitutional Law of Ireland (Cork: Mercier Press, 1987) at 65-6 160 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. restrained from so doing... [and that] the public interests are committed to the care of the Attorney General. He is entitled to sue to restrain the commission of an unlawful act, to protect and vindicate a right acknowledged by the Constitution and to prevent the corruption of public morals". 249 On appeal, Finlay C.J. said: If, therefore, the jurisdiction of the courts is invoked by a party who has a bona fide concern and interest for the protection of the constitutionally guaranteed right to life of the unborn, the courts, as the judicial organ of government of the State, would be failing in their duty as far as practicable to vindicate and defend that right if they were to refuse relief upon the grounds that no particular pregnant woman who might be affected by the making of an order was represented before the courts. I am satisfied that the Attorney General, who is the holder of a high constitutional office, is an especially appropriate person to invoke the jurisdiction 250 of the Court in order to vindicate and defend the right to which I have referred. These comments are informed by the assumption that all pregnancies are the same, so that the legal interests which they raise will also be the same. By invoking a generalized right to life of the 'unborn', the courts denied the significance of the personal and social particulars of pregnancy. This generalized fetal right to life then allowed the judiciary to interpret almost anyone as an appropriate party to invoke it. The general application of this right meant that the relevant party was not required to have any particular characteristics in order to be able to assert the right before the court. The courts' need to generalize the fetal right to life in order to find that the Attorney General, or SPUC as relator, were appropriate parties to seek its protection, meant that the courts broadened the interpretation of standing '49 - Attorney General v. Opendo01 supra note 193 at 603-4. Ibid. at 623. 250 161 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. requirements/ 51 and that they downplayed the crucial role of facts in the interpretation of law. In the second case to arise under Article 40 3 3, SPUC v. Coogan, SPUC took the role of defending the fetal right to life on itself. At this point SPUC, a fundamentalist prolife group, became legally construed as the defender of the generalized fetal right to life. In the High Court, Carroll J. declined to grant the injunction requested by the plaintiff on the grounds that the plaintiff lacked the standing reserved to the Attorney General to seek undertakings and injunctions to restrain threatened breaches of the Constitution. She said: "The plaintiff has assumed the self-appointed role of policing the Supreme Court judgment [in Attorney General v. Opendoor]. In my opinion, it has no right to seek undertakings from citizens and it is the Attorney General who is the proper party to move in such a case". 252 However, the Supreme Court overruled her decision on the grounds that any party who had a bona fide concern and interest in the protection of the constitutionally guaranteed right to life of the unborn had sufficient standing to invoke the jurisdiction of the courts to take such measures as would defend and vindicate that right. Finlay C.J. gave the judgment with which a majority of the court agreed (Griffin, Walsh and Hederman J.J.; McCarthy J. dissenting). He was of the view that to accept that "only the Attorney General could sue to protect such a constitutional right as that involved in this case, would, I am satisfied be a 251 See further Richard Humphreys and Thomas O'Dowd, "Locus Standi to Enforce the Constitution: SPUC v. Coogan" (1990) 8 Irish Law Times 14; and Hilary Delany, "Recent Developments in Locus Standi in Irish Constitutional Law" (1990) 8 Irish Law Times 147. 252 SPUCv. Coogan, supra note 195 at 737. 162 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. major curtailment of the duty and the power of the courts to defend and uphold the Constitution". 253 Finlay C.J. justified this view on the grounds that that there could never be a victim or potential victim who can sue in respect of a violation of the constitutional right to life of the unborn. The fact that a fetus whose right to life had been violated could not take an action does not in itself justify allowing SPUC to act to prevent the violation of fetal rights. While the terms of the plaintiff's articles and memorandum of association were not sufficient in themselves to give standing, Finlay C.J. thought it significant that "there was no question of the plaintiff being an officious meddlesome intervenient in this matter". 254 Clearly, the Chief Justice's desire to grant SPUC standing prevented him from identifying the plaintiffs' efforts at preventing the distribution of abortion information to pregnant women 'meddling' in the affairs of those women. It is doubtful that the women whose search for jnformation about safe and legal abortion services abroad has been made more difficult by the likes of SPUC, or the pregnancy counselling centres or student unions who sought to aid them, would agree with the Chief Justice. Furthermore, he considered that: ...the part, however, that the plaintiff has taken in the proceedings to which I have referred [Attorney General v. Opendoor], which were successfully brought to conclusion by the Attorney General at its relation, and the particular right which it seeks to protect with its importance to the whole nature of our society, constitute sufficient grounds for holding that it is a person with a bona fide concern and interest and accordingly has the necessary legal standing to bring the 255 action. 253 Ibid. at 742. 254 Ibid. 255 Ibid., emphasis added. 163 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. . By constructing SPUC as guardians of the public interest in fetal life. comments: The attitude of the defendants to this case has not been unconcealed. They boldly assert that no one but the Attorney General could seek to prevent them from engaging in the impugned activities and.. SPUC's intentions are presumed to be 256 Ibid. said: The question in issue in the present case is not one of a public right in the classical sense but it is a very unique private right and a human right which there is a public interest in preserving. these judges conflated that public interest with the private interest of an absolutist pro-life group. emphasis added. a situation which he finds intolerable. He implies that if SPUC had not initiated this case the public interest would have gone undefended.257 Here we can see how Walsh J.In his concurring opinion Walsh J. The general importance of the fetal right to life to the nature of Irish society and the role that SPUC had played in one case in defending that right were sufficient in the eyes of the Chief Justice and a majority of the cou i to grant SPUC standing to enforce the Constitution. in the absence of such intervention. the courts and the citizens in general must remain powerless to prevent activities designed not merely to evade the constitutional rights but totally to destroy them. What is in issue in this case is the defence of the public interest in the preservation of the private right which has been guaranteed by 256 the Constitution. interprets SPUC's intervention in seeking the enforcement of the fetal right to life as an action taken on behalf of the 'courts and the citizens'. Their expressions of indignation at being asked by the plaintiff before being sued to give an undertaking to cease the activities complained of cannot be seriously accepted. Walsh J. emphasis added. 164 .. at 743. 257 Ibid. at 743. .Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 258 Ibid. 259 Ibid. The 259 implications to a free society of such a claim are alarming. to demand and receive an undertaking from a citizen or a group of citizens as to their future conduct. as a preliminary to such action. comments further: In the present case the plaintiff has. being held at law competent to maintain an action of this kind without the intervention of the Attorney General. While SPUC's role in the proceedings is justified in terms of its 'genuine interest' in the protection of unborn life. it is the Attorney General. I confess to a feeling of great unease at the prospect of any person or group of persons. it would appear to be a public right. 165 . despite his offer of assistance. the student unions 'genuine interest' in serving the needs of pregnant women merits no consideration. Walsh J. In my view.. the whole nature and quality of Irish society is affected by the right. however well intentioned. In his dissent from the majority of the court McCarthy J. at 751. In my view. commented: If as submitted on behalf of the Society.innocent while the student unions are criticized for daring to assume that SPUC had no right in law to ask them to desist from behaviour which SPUC found offensive. To seek the vindication of the right to life of the unborn is a right which does not rest exclusively with any public authority or office of state and may on occasion even depend solely upon the 258 vigilance of the citizen.. the Society is in no better or worse a position than any other prospective litigant. The construction of the vindication of the fetal right to life as occasionally depending on the 'vigilance of the citizen' suggests that it is justifiable to subject pregnant women to surveillance in the interests of preventing the possible violation of fetal life. ordinarily in the province of the Attorney General . shown a genuine interest in the protection of unborn life and it was reasonable on its part to raise the issue as representing the interest of unborn lives. at 747... in my opinion. Of far greater import is the claim by the Society. and he alone. who can in such a case validly pursue that claim to protect the right of the unborn to judgment . . Further reproduction prohibited without permission.Reproduced with permission of the copyright owner. The defendants sought to resist the failure of national law to protect women's interests by appealing for the application of the law of the supranational regime of which Ireland was a member.By constructing the fetal right to life as a general public interest and SPUC as an appropriate defender of that interest. the Supreme Court were content to allow Irish law to be used towards absolutist ends. with the exception of Carroll J. As the neo-colonial intervention ofEC law was excluded in order to maintain national control. the Irish courts denied the relevance of Community law by interpreting the issue 166 . However. Irish politicians took action behind closed doors to amend Community law so that it would not apply to national interpretation of the fetal right to life. Post-colonial legal form's objectification of fetal life to national control was consolidated in response to the threat of what was perceived as a neo-colonial intervention in the guise of European Community law. Grogan argued that women's access to abortion information was protected by EC law if not by domestic law. the value of fetal life was again produced as an absolute. reacted with great hostility to the idea that Community law was relevant to the interpretation of Article 40 3 3.. A neo-colonial threat? The exclusion of European Community law Foetal life was also constructed as an absolute public interest through the judicial and the political exclusion of European Community law from the interpretation of Article 40 3 3. with the exception of Carroll J. The defendants in Attorney General v. Opendoor and in SPUC v. in the High Court in SPUC v. The Irish judiciary. Grogan. Further reproduction prohibited without permission.Reproduced with permission of the copyright owner. . The defendant pregnancy counselling services argued that such a right derived from the protection of freedom to provide services under Articles 59 (now 49) and 60 (now 50) of the European Community Treaty. to pregnant women to travel abroad. Hamilton P. Usually the fact that the cases before the courts involved transborder issues would mean that the courts would consider the application of Community law. rather than information. 167 Reproduced with permission of the copyright owner. request the Court of Justice to give a ruling thereon. Opendoor. (c) the interpretation of the statutes of bodies established by an act of the Council. 260 Article 177 EC provides: "The Court of Justice shall have jurisdiction to give preliminary rulings concerning: (a) the interpretation of the Treaty. On appeal the Supreme Court also refused to make a reference for a preliminary ruling. however. The Court did so on the grounds that what was being restrained was assistance. where those statutes so provide. On the issue of abortion. national matter concerning practices occurring exclusively within the Irish State. was of the view that he did not have to consider the application of the provisions of EC law because the activities of the defendants occurred within the State. against whose decisions there is no judicial remedy under national law. In Attorney General v. that court or tribunal may if it considers that a decision on the question is necessary to enable it to give judgment. Where any such question is raised in a case pending before a court or tribunal of a Member State. (b) the validity and interpretation of acts of the institutions of the Community. He refused to refer a question to the European Court of Justice (ECJ) under Article 177 (now 234) 260 for a preliminary ruling as to whether the defendants had the right to provide information about services provided in another Member State. Where such a question is raised before any court or tribunal of a Member State. the courts constructed the issues before them in such a way as to isolate Irish domestic law from the effects of EC law's application to Ireland. Further reproduction prohibited without permission. . that court or tribunal shall bring the matter before the Court of Justice". In so doing they strayed from their more usual policy of following the rule that where EC law applies it takes precedence.before them as a domestic. 168 Reproduced with permission of the copyright owner. SPUC v. As a result the High Court granted the order issuing a permanent injunction against the student unions. Hedennan and Walsh J. in their angst to promote protection of the right to life of the unborn. The Chief Justice asserts that there is 'no question' of a possible right to abortion infonnation under EC law which might limit the application of the fetal right to life. Not only does the Court refuse to weigh this right under EC law against the fetal right to life. agreed. The assumption is that the right to life of the unborn is such an important national concern that any possible right to abortion infonnation under EC law could not limit it. supra note 200.J. Grogan.R. In SPUC v. the latter giving a separate opinion) was of the view that given that the right sought to be protected was the right to life there was no question of a possible right which might exist in EC law as a corollary to a right to travel so as to avail of services counterbalancing the necessity for an interlocutory injunction. 's decision not to grant SPUC an injunction stopping the officers of the student unions from distributing abortion infonnation. Finlay C. without acknowledging that the general rule is that where Community law applies. (with whom Griffin. Grogan the Supreme Court overturned Carroll J. it takes precedence. SPUC v. Grogan [1994] li. are zealous in their assertion of the primacy of national law in this context. . 46. Further reproduction prohibited without permission. the Court was of the view that no question of interpretation of Community law fell to be decided for the purpose of detennining the issue between the parties.J.Therefore..2 61 The Court poured scorn on the very idea that rights under 261 In SPUC v. But on appeal in 1997 the Supreme Court declined to affirm the order on the grounds that the defendants' activities were not necessarily unlawful under the law as it now stood. it denies the very existence of such a right. without providing any reasonable explanation as to why this should be so. The judiciary. Grogan [1991] 3 CMLR 849 the ECJ held that abortion was a service regulated under EC law but that the student unions were not protected by EC law because they were not in an economic relationship with the service providers. Walsh J. . or institutions thereof. Article 29 4 3 was inserted into the Irish Constitution in 1972. No provision of this Constitution invalidates laws enacted. acts done or measures adopted by the State necessitated by the obligations of membership of the Communities or prevents laws enacted. Walsh J. It provides: The State may become a member of the European Coal and Steel Community. is 262 SPUC v. on the matter. the exclusive role of the courts in the administration of justice (Article 34 I) and the finality of the decisions of the Supreme Court (Article 34 4 6). acts done or measures adopted by the Communities. Grogan. the European Economic Community and the European Atomic Energy Community. Further reproduction prohibited without permission.EC law could be a relevant concern for the interpretation of Article 40 3 3 in order to justify its refusal to seek a ruling from the ECJ. neglects to recognize that the very Constitution of which he speaks acknowledges that its provisions should not prevent the application of EC law in the Irish state. 169 Reproduced with permission of the copyright owner. Opendoor] has given an interpretation to the Eighth Amendment which is not open to question in any court in this State or in any other state or in any international court. commented: The decision of this Court brought by the present plaintiff in [Attorney General v. supra note 194 at 766. from having the force oflaw in the State. The interpretation of the Constitution of Ireland is within the exclusive 262 competence of the courts of Ireland. Given the direct applicability of Community legislation and the authority of the ECJ in interpreting matters of Community law. the ultimate authority on EC jurisprudence. In order to allow the State to become a member of the EC and to recognize the force of EC law in Ireland. this Amendment was necessary in order to avoid contradicting constitutional recognition of the exclusive legislative power of the Oireachtas (Article 15 2). The principle governing interpretation of matters on which Community law and national law conflict. the Court ruling that no such appeal did lie as this would run counter to the spirit and purpose of Article 177 of the Treaty of Rome. the Irish courts have generally been particularly receptive to Community law: "It is quite clear that Irish jurisprudence at all levels accepts the effect of the Amendment [Article 29 4 3] as giving Community law. Minist1y for Indust1y and Energy 265 the Supreme Court went so far as to suggest that the Treaty of Rome was incorporated by reference into the constitutional order and that the Treaty may be invoked to qualify the language of the Constitution itsel£ Walsh J. as part oflrish law. As Madeleine Reid notes. 263 While derogation from the fundamental principles of Community law . (Dublin: Irish Centre for European Law. . That Article. this case was concerned with the question of whether an appeal lay to the Supreme Court against a decision of the High Court to refer a question of Community law for a preliminary ruling to the European Court of Justice. within the sphere of effect which it itself defines. The Impact of Community Law on the Irish Constitution.that where Community law is relevant to the determination of proceedings it takes precedence over domestic law. 265 [1983] I. at 7. said that by virtue of Article 29 4 3: "the right of appeal to [the Supreme] Court must yield to the primacy of Article 177 of the Treaty. persons and services . 1990) at 9-16.R. qualifies Article 34 in the matter in question"/ 66 a view which one commentator has identified as "plus 263 See Madeleine Reid. 264 In Campus Oil Ltd.the free movement of goods. 82. 264 Ibid. The European Court of Justice has been unequivocal in this position and the Irish judiciary also appear to have accepted this view. superior force to the provisions of the Constitution".is permitted on grounds of public interest. v. such derogation is generally strictly construed and must be necessary and proportionate to an objective which is justified under Community law. . ibid. 170 Reproduced with permission of the copyright owner.266 Campus Oil. at 90. Further reproduction prohibited without permission. On the one hand. Although the dominant judicial view was that the view of the ECJ was unnecessary in order to interpret the consequences of Article 40 3 3 for the provision of information 267 David O'Keefe. the Court is eager to contribute to the advancement of the European cause and consequently to be seen as an important player in the new legal order. . 171 Reproduced with permission of the copyright owner. On the other hand. The post-colonial aspiration to become a significant player on the European stage turns into post-colonial apprehension at being assimilated when national control of reproduction is threatened. This post-colonial response to a perceived neo-colonial threat is further evidence that abortion law is a particular means of constructing national independence. Further reproduction prohibited without permission. the Court is appalled at the idea that 'Europeanization' could threaten the cultural symbols it identifies as having particular national significance. The denial of the relevance of EC law with regard to the interpretation of Article 40 3 3 was clearly inconsistent with the courts' established pattern of welcoming the application of EC law to Irish jurisprudence. "Appeals against an order to refer under Article 177 of the EEC Treaty" (1984) 9 European Law Review 87 at 97. This contradictory approach to the application of European Community law highlights tensions in the representation of the Irish as 'good Europeans'. The dominant judicial attitude that EC law is completely irrelevant to the interpretation of abortion issues shows that the content of the post-colonial legal form at this particular historical juncture is the view that fetal life is an absolute public interest.67 royaliste que le roi"/ given that the European Court had indicated that it regards this question as a procedural matter for the national courts to decide. 172 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Rather the court held that abortion was a medical activity which is normally provided for remuneration and which may be carried out as part of a professional activity. the adoption of the opposite view by one judge was all that was necessary for the ECJ's intervention. 268 Articles 59 and 60 EC. However. The ECJ had no trouble accepting the students' argument that abortion was an economic service. it was careful in so doing not to compromise its broad conception of a service as economic activity. As a result of Carroll J's reference. The ECJ ruled that medical termination of pregnancy performed in accordance with the law of the State in which it is carried out did constitute a service within the meaning of Article 60 (now 50) of the EEC Treaty. They dismissed the argument made on behalf of SPUC that as a grossly immoral activity abortion should not be considered an economic service falling within the scope of the Treaty.about abortion services. Thus although the court would go on to hold that the students unions were not protected by the Treaty in their provision of abortion information because they were not in a direct economic relationship with the service providers. the Court also ruled that the students' unions' provision of abortion information was not protected by EC law because the students' unions were operating independently of the service providers. . the ECJ came to adjudicate the issue of whether abortion was a medical service under European Community law and whether EU law's protection of the free movement of services between member states 268 implied a right to give and receive information about the availability of abortion services lawfully provided in member states. Deirdre Curtin has argued that the court's focus on the type of information at issue is inconsistent with trends in the case law. I would argue that it was precisely because the students' unions were politicizing EC economic categories in order to challenge the denial of legitimate status to abortion at a national level. Judgment of 4 October 1991". information type rather than effect is also problematic 269 A focus on in that it relegates 'non- commercial' information to the 269 Deirdre Curtin. that the ECJ decided to deny them the protection of EC law. Grogan (no. (1992) 29 Common Market Law Review 585 at 596. The Society for the Protection of Unborn Children Ireland Ltd. The supranational institution which regards itself as regulating economic affairs wanted to avoid being dragged into a question of nationally and politically contested import. The Court allowed the students' unions the victory of having abortion recognized as a service because this did not conflict with the Court's interests in promoting the fi·ee movement of services. "Case C 159/90. 173 . However. This focus excludes the more usual ECJ preoccupation with "the effect on the freedom of the putative recipient of services to exercise one of the fundamental freedoms guaranteed by the Treaty". v. 2) for its refusal to find that the students' unions' provision of information about abortion services came within information which ought to be protected from restraint by Member States given its role in facilitating a consumer's access to services. The ECJ was uncomfortable with the use of EC legal mechanisms to address a matter which it considered primarily national and political.For the students' unions the value in getting abortion legally recognized as a service for the purposes of EU law lay in the recognition of abortion as a legitimate activity. Grogan. Several commentators have already criticized the Court's decision in SPUC v. .Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. The decision to construct abortion as an economic service rather than as an exercise of autonomy as a matter of Irish pro-choice legal strategy 270 Elizabeth Spalin. the constraints of legal categories have tended to produce a pro-choice reliance on the legal recognition of the individual's interest in self-determination whether that is formulated as a right to autonomy. In other words.status of inferior unprotected information. 174 . then what possible difference could it make whether the motivation of the person providing the information was economic or public service?". are less appropriate for easy consumption than others. abortion is here categorized as a commodity regulated by a supranational organisation to which women have access as consumers. The novelty of categorizing abortion as an economic service is particularly significant given that the more common practice in liberal democracies has historically been to categorize abortion as an exercise of autonomy in order to ground a legal claim. privacy or liberty. Elizabeth Spalin has commented: "If the interest protected under Article 59 is that belonging to consumers. when the denial of access to abortion has been challenged through the courts. Speech and the European Community" (1992) 1 Journal of Social Welfare and Family Law 17 at 22. such as reproductive health services. The categorizing of abortion as an economic service in order to ground a legal claim to a right to abortion information represents a novel formulation in the struggle to gain legal support for women's access to abortion. 270 The inconsistency of the court's approach reflects a contradiction between the view that service consumption should be promoted and the view that some services. "Abortion. Rather than categorize abortion as a right protected by the liberal democratic regime of the nation state. . Further reproduction prohibited without permission.Reproduced with permission of the copyright owner. the effect of this strategy was to instil in Irish public consciousness an association between pro-choice service providers and European supranationalism. However. the Court's finding that the student unions were not protected in their distribution of abortion information in this instance effectively meant that the injunction continued to operate against them until it was eventually lifted in 175 Reproduced with permission of the copyright owner. At one level. The EU's legal regime recognizes that the removal of barriers to the free movement of goods. pro choice service providers threatened the retention of national control over abortion. While the Court's acceptance of abortion as a service regulated by EU law was a strategic victory for pro-choice organizations. Further reproduction prohibited without permission. In seeking to resist their nation state's denial of women's rights the student unions attempted to use supranational economic regulation for national political purposes. Irish pro-choicers' identification of abortion as an economic service is a legal strategy which sought to mobilize a legal apparatus based on market forces towards pro choice ends. capital and workers between EU member states is its raison d'etre. services. As the agents of this supranationalism. . the legal categorization of abortion as a service may be understood as an effort to hold the supranational legal apparatus accountable to the citizens of nations states. Because EU law has direct effect in member states it has added a layer to national law which creates a whole new set of rights and responsibilities for citizens of the member states.parallels the decision to appeal for legitimization from a supranational organization rather than from the liberal democratic nation state. At another level. this strategy represents an attempt to harness the concepts and categories of globalized capitalism to a feminist pro-choice cause. . one of the chief non-profit abortion service providers in Britain. and they had paved the way for other organizations to gain the protection of EC law in providing abortion information by clarifying that all that was necessary was an economic relationship with an abortion service provider.March 1997 as a result of the domestic legalization of abortion information in 1995. On the other side of the political abortion divide. During 1991 the Irish government was approached and asked to ensure that the Maastricht Treaty on European Union would 176 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. But in doing so the conditions were laid for the construction of pro-choice services as those who were prepared to use neo-colonial law in order to make deals with agencies located in the jurisdiction of the former colonial power. anti-choice activists reacted with dismay to the ECJ decision. They saw it as interfering with the authority of the Irish nation state's protection of fetal life and took immediate political steps to have Article 40 3 3 isolated from the application of EU law in the future. The student unions had gained a symbolic advantage in getting abortion recognised as an ordinary medical service. In the wake of the decision the Irish Family Planning Association set up the first comprehensive non directive pregnancy counselling service since the Open Door and Well Woman services were closed by the earlier injunctions. They did so in co-operation with the British Pregnancy Advisory Service. The inclusion of abortion within the legal regime of the EU therefore enabled abortion to emerge to some extent from a period of heavy stigmatization during the late 1980s in which one of the chief ways of getting the phone numbers of abortion clinics in Britain was through stickers surreptitiously posted in women's washrooms. 177 Reproduced with permission of the copyright owner. originated with John O'Reilly. . O'Reilly approached Senator Des Hanafin. and sought and obtained the consent of the Member States to its inclusion in the Treaty. Hanafin then sought a meeting with party colleague and then Minister for Foreign Affairs Gerry Collins. which apparently came from John O'Reilly himself. In December 1991. Journalist Emily O'Reilly has reported that the idea of securing a guarantee under EC law which would make Community law irrelevant to the interpretation of the right to life of the unborn. the results of this process became known when Collins introduced Protocol 17 to the Inter-governmental Conference on the Treaty of European Union. Protocol 17 states: 271 O'Reilly. to the Treaty which would effectively immunize Article 40 3 3 from the application of Community law. a well known anti-choice activist and member of Fianna Fail. who was Ireland's chief negotiator of the Maastricht Treaty.not interfere with Ireland's constitutional endorsement of the right to life of the unborn. 271 John O'Reilly was a key player in the Pro-Life Amendment Campaign and is still active in socially conservative Catholic organizations. Further reproduction prohibited without permission. and expressed his concerns about the possible implications of European Community law for Article 40 3 3. The government responded by asking the EC Council of Ministers to add a Protocol. It was only at this late stage that it became publicly known that attempts were being made to prevent Community law having any force in regard to matters related to Article 40 3 3. Collins approached then Taoiseach Charles Haughey with draft proposals of the sought after EC guarantee. to become known as Protocol 17. supra note 37 at 138. Vol. Further reproduction prohibited without permission. . to the decision of the Court of Justice in SPUC v. Finbar Murphy comments: Neither the wording of the Protocol. Grogan". 166170at 169. as well as legally. James Kingston and Anthony Whelan. 1996). "Maastricht: Implementation in Ireland" (1993) European Law Review 94 at 98. Amy Elman (ed. col. "The Protection of the Unborn in Three Legal Orders.Part III". a prominent anti-abortion campaigner. Mr. The implications of the Protocol would not become an issue for public debate until they assumed a particular relevance in the aftermath of the X case.Nothing in the Treaty on the European Union or in the Treaties establishing the European Communities or in the Treaties or Acts modifying or supplementing those Treaties shall affect the application in Ireland of Article 40 3 3 of the Irish Constitution. very largely. During the course of the limited Dail debate on the Maastricht Treaty a deputy alluded to an initiative by Senator Hanafm. "most observers of the events of the last year [1991-2] would agree that the [Maastricht] protocol was negotiated in response. (1992) 10 Irish Law Times. Charles Haughey to ensure that "whatever changes may take place in Brussels will not affect us in Ireland". 272 See Finbar Murphy. But the manner in which the Protocol was sought by the Irish government at the request of pro-life activists demonstrates that foetal life was being politically. constructed as an absolute public interest which required the exclusion of Community law. nor the intention of the Government to propose its inclusion in the Maastricht Treaty. See also: Ailbhe Smyth. had been made public before the crucial Inter 272 Governmental Conferences in early December 1991.). "'And nobody was any the wiser"': Irish abortion rights and the European Union' in R. to persuade the then Taoiseach. As Kingston and Whelan note. Sexual Politics and the European Union: The New Feminist Challenge (Oxford: Berghahn Books. Dail Debates. quoted in Murphy at 96. 178 Reproduced with permission of the copyright owner. 1723. 413. the Supreme Court denied the relevance of qualifications on the fetal right to life. women's constitutional rights. Communication about abortion had to be stopped in order to prevent the purity of an anti-abortion culture from being 179 . Post-colonial Legal Form. given its higher constitutional status. The representation of the fetal right to life as an absolute interest had been translated into law. SPUC. the right to life of the unborn had been legally recognized as an important interest of Irish society.5. and its demand that positive action be taken to enforce the legal protection of fetal life. Now. The Court had also declared that an anti-abortion group. Coogan. In making these decisions. Through constitutionalization. through the judicial interpretation of Article 40 3 3. Relational legal Content: The woman's right to life as a relational paternal interest In the process of vindicating the constitutional right to life of the unborn the Irish Supreme Court had by 1992 issued injunctions against pregnancy counselling centres and student unions to stop them providing pregnant women with abortion information in Attorney General v. The post-colonial legal form of the 'pro-life' amendment had guided legal interpretation in such a way that complete protection of fetal life was called for in order to stave off the threat to Irish culture which abortion posed. Opendoor and SPUC v. that right had acquired a status which rendered it more important to Irish society than other constitutionally endorsed interests. its application to all Irish people without differentiation. had standing to seek the prevention of an alleged breach of the fetal right to life in SPUC v. and European Community law. Grogan. Reproduced with permission of the copyright owner. . Further reproduction prohibited without permission. Pro-choice groups such as the Dublin Abortion Information Campaign. which was unprecedented in Irish society. an injunction stopping a young pregnant rape victim from travelling to England to tenninate her pregnancy. 22 February 1992. On the Saturday after the High Court issued the pennanent interlocutory injunction. there were large protests outside Dail Eireann almost everyday. 10. The material denial of women's rights in order to constitute Irish post-coloniality eventually had to express itself. envisaged a right to abortion where the mother's life was at risk. On appeal.274 The violation of women's rights through the absolute protection of fetal life became tangible for the Irish public as it took shape in Irish law's victimization of a particular young woman. in holding that Article 40 3 3's recognition of the mother's equal right to life. On the understanding that Irish law required the State to prevent the destruction of fetal life. the Supreme Court overturned the High Court ruling. A case which had begun as a challenge to a young woman's right to travel to England for an abortion ended up validating her right to abortion in Ireland.contaminated. the more the pregnant woman's rights as sustainer of that life were denied. 273 Both the High Court and the Supreme Court subsequently expressed the view that the Attorney General had been correct to bring the matter. Repeal the Eighth Amendment Campaign and the Women's Coalition were involved in the organizing of such events. But the more the judiciary asserted the absolute need to protect fetal life. and the High Court granted. the Attorney General sought. 274 See The Irish Times. 273 The X case provoked an unprecedented public outcry as thousands took to the streets to protest this victimization of a suicidal fourteen year old girl. The X case came about as a result of this absolutist interpretation of Article 40 3 3.000 people marched through Dublin on a pro-choice protest. 180 . During the two weeks between the issuing of the interim injunction by the High Court and the lifting of the interlocutory injunction by the Supreme Court. Further reproduction prohibited without permission.Reproduced with permission of the copyright owner. . Costello J. They did so on the grounds that they had a right to travel from the jurisdiction to do what was lawful elsewhere. X be spared the trauma of giving evidence. said in the High Court: 181 . The Attorney General then sought and obtained an interim injunction in the High Court restraining the young woman and her parents from interfering with the right to life of the unborn. By consent the motion was treated as the full trial. restraining them from leaving the jurisdiction for nine months and restraining them from procuring or arranging an abortion within or outside the jurisdiction. in the High Court granted the interlocutory injunction on the grounds that the court had a duty under Article 40 3 3 to defend and vindicate the right to life of the 'unborn'. and that such injunctions were unprecedented and ought not to have been granted. Costello J. if possible. The Gardai sought a legal opinion in this regard from the Director of Public Prosecutions. In granting the injunction which produced the X case crisis. They contacted the Gardai (police) to ask whether scientific DNA tests perfonned on the aborted fetus in order to establish biological paternity would be admissible in court. X's parents were anxious that the prosecution of the man responsible for the rape proceed and that. that the mother's right to life was itself in peril.The X case unfolded after X and her parents had decided to travel to England in order that X tenninate her pregnancy. On hearing of the injunction X and her parents returned home from England in order to contest the motion for an interlocutory injunction. and in the process the Attorney General was infonned of the case. .Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 276 Attracta Ingram. supra note I at 12. supra note 25. 149156 at 154. For this judge the physical. on this interpretation. The health and welfare of women were rendered insignificant concerns in the face of the imperative to protect fetal life. He was casually indifferent to women's lives as he claimed that nothing less than the prospect of a pregnant woman's certain death could justify qualification of the right to life of the 'unborn'. As Attracta Ingram has commented. emotional and mental effects of this pregnancy on this woman were of little consequence since twenty four hour supervision would probably stop her from actually killing herself.that there is a right to abortion where the 275 Attorney General v.275 The lengths to which Costello J. was prepared to go in the name of protecting fetal life is shocking. The idea that women's right to life might actually entitle them to something other than enforced biological existence escaped him.the risk that the defendant may take her own life if an order is made is much less and is of a different order and magnitude that the certainty that the life of the unborn will be terminated if the order is not made. The fact that the woman's twenty four hour supervision over a period of months amounts to her involuntary incarceration was also deemed irrelevant. 276 of the When one considers what might have happened had Costello J's opinion found more support in the Supreme Court the final decision in the X case . "Home and Away: The Unequal Vista for Irish Women" in Smyth. X. Article 40 33's assertion of equal rights for both pregnant woman and fetus is a sham since "the right to life of the mother is to physical survival while the right to life of the unborn is to all the nurture it needs to develop into a fully participating member community". . 182 Reproduced with permission of the copyright owner. . Further reproduction prohibited without permission. In rejecting the absolutist representation of the value of fetal life the Supreme Court have opened up the terrain of Irish abortion law to the possibility that other representations of abortion might claim legal authority. a conflict between the objects of rights also emerges as a legal issue. Abortion becomes an issue of rights conflict in two senses. the need to be merciful towards her. and even a rape victim's need for paternal protection as factors influencing the decision to 183 Reproduced with permission of the copyright owner. A Woman's Relational Right to Abortion The plight of a pregnant and suicidal fourteen year old rape victim causes the judges to consider how her rights ought to be balanced against those of the 'unborn'. The 1992 referendum held in response to the X case legally separates out the right to abortion from the right to abortion information and from the right to abortion travel. At the same time abortion became a question of competing rights rather than simply a question of protecting the public interest in fetal life. In doing so the court identifies her relationships with others. In the second place. Further reproduction prohibited without permission. Once the fetal right to life is no longer seen as an absolute constraint on any abortion related activity. the judiciary begin to distinguish the right to abortion from the right to travel for an abortion. a conflict emerges between the subjects of rights when the right to life of the pregnant woman and the right to life of the 'unborn' are legally recognized as competing interests for the first time.pregnancy poses a real and substantial risk to the life of the woman . In the first place. When the Supreme Court moved to recognize that a woman's right to life did qualify the fetal right to life in the X case absolutism was displaced as the dominant legal form of interpretation. .comes as a welcome relief. She is identified as having a right to abortion because of her particular victimized and dependent situation. 184 Reproduced with permission of the copyright owner. Although a woman's right to life emerges as a legal interest. X's right to abortion is not affirmed through a liberal interpretation which would ground her right in the ideal of self-realization. contradicts and challenges the post-colonial legal form's construction of abortion as an object of the people's control. This time the hybridity of the fetal right to life is not contained by denying it but by managing it. The court can protect fetal life and avoid oppressing pregnant women by paternalistically deciding that abortion may be required to protect particularly meritorious. its emergence as a relational interest. Thus paternalism replaces absolutism as the interpretative means through which the conflict of women's and fetal rights are reconciled. it is not an outcome which can lend much support to women seeking abortion who do not have such victimized circumstances. vulnerable women. The demand that X's individual right to abortion be recognised. While this legal outcome is to be preferred over a denial of her right through the adoption of the absolutist interpretation of abortion as an infringement of the public interest. Further reproduction prohibited without permission. and the woman's right is produced as a relational interest which displace the absolute fetal interest. severely limits its liberal potential. The need for such a reconciliation is produced however by a change in post-colonial legal form's attribution of content to Article 40 3 3.recognize her right to abortion. But this contradiction between an individual right and the public interest is accommodated by interpreting individual rights relationally. whose capacity to justify a woman's abortion is paternalistically determined. . McCarthy. I shall discuss his reasoning before moving on to analyse the majority opinions. The Supreme Court (Finlay C. Hederman J. O'Flaherty and Egan J.The news of the High Court injunction in the X case was greeted with consternation on the part of the Irish public and. dissenting) allowed the appeal and discharged the injunctions. Hederman J. The risks to the life of the mother which should be considered by the Court included a real and substantial risk of suicide. The Court held that the true interpretation of Article 40 3 3 of the Constitution required that termination of pregnancy was permissible only when it was established as a matter of probability that there was a real and substantial risk to the life of the mother if such termination were not effected. the Government responded to the pressure by making the unprecedented move of offering to fund X's appeal to the Supreme Court. To prevent termination except in circumstances where there was a risk of immediate or inevitable death of the mother did not sufficiently vindicate the right to life of the mother.J.'s dissent resembles more the absolutist interpretation of Article 40 3 3 than the emerging paternalist interpretation. Interestingly. 's absolutism has two steps. dissented on the grounds that the evidence in the instant case fell short of the standard required to justify a termination of pregnancy. He felt that it was not established on the basis of medical evidence that there was no other conclusion but that the consequences of the continuance of the pregnancy would to an extremely high degree of probability cost the mother her life. as protest mounted.J. In the first place his test for the permissibility of 185 .. Hederman J. Absolutism in dissent As Hederman's J.. Reproduced with permission of the copyright owner. . Further reproduction prohibited without permission. Although 277 Attorney General v. A State whose Constitution provides for the protection of fetal life has an interest in acting in accordance with such a maternal duty. As far as Hederman J. Hederman J. In the second."277 The extremely restrictive consequences of his views for pregnant women are particularly obvious when he comments: Suicide threats can be contained. derives support for this reasoning from his belief that "the unborn life is an autonomous human being".abortion sets an extremely high bar. supra note I. at 76. X. thereby dismissing the evidence ofX's suicidal tendencies given by a clinical psychologist. 186 . Nothing apart from the virtually certain death of the pregnant woman can justify a termination. is concerned pregnant women have a duty to carry out pregnancy. The choice is between the certain death of the unborn life and a feared substantial danger of death but no degree of certainty 278 of the mother by way of self destruction. in which case the fetus would also die. The duration of the pregnancy is a matter of months and it should not be impossible to guard the girl against self-destruction and preserve the life of the unborn child at the same time. Hederman J. and a suicide threat does not constitute such a risk. at 73. 278 Ibid. has reduced the quality of the pregnant woman's life to physical existence. Her right to life is limited by reference to the requirement that she sustain fetal life. obstetrical evidence. he restricts the evidence that ought to be taken into account in meeting this test to medical. The fetal right to life is unlimited as it is entitled to restrain the woman's life up to the point where the woman would certainly die. and that "no recognition of a mother's right of self-determination can be given priority over the protection of the unborn life. Reproduced with permission of the copyright owner. . Further reproduction prohibited without permission. That can include restraint of the mother of the child where she is the person or one of the persons threatening the continued survival ofthe life. their . 280 279 Ibid. 280 Ibid. he is actually giving the fetal right to life more weight than the woman's right to life. is also absolutist in the sense that he applies this right generally. at 71. the right to life of the pregnant woman. Not only does the State have a responsibility to take positive action to prevent the destruction of unborn life. Hedennan J. rather than to merely refrain from action which would extinguish fetal life: Obviously to succeed in saving a life is of far greater benefit than the infliction of punishment for the destruction of that life. is also clearly of the view that the injunction stopping X from travelling abroad during her pregnancy is an appropriate response to the threat posed to the fetal right to life by the possibility that she will obtain an abortion. and interpreting that right as if it requires positive rather than negative action. The State therefore can be obliged to take positive action to intervene to prevent an imminent destruction of life and one obvious way is by a restraining order directed to any person who is threatening the destruction of the unborn life where known to the State.279 As well as according the right to life of the 'unborn' greater weight than its equivalent. believes he is treating both rights equally.Hedennan J. Hedennan J. but "others" can invoke Art 40 3 3 on behalf of the unborn also: "It is a protection which all lives may invoke or have invoked on behalf'. at 73. He is quite clear that it is justifiable for the State to take positive action in order to prevent the destruction of 'unborn' life. . Further reproduction prohibited without permission.187 Reproduced with permission of the copyright owner. Ethical Guidelines on Abortion. See the Green Paper. 'medical' is constructed narrowly so as to exclude psychological. came to the view that psychological evidence that X was contemplating suicide was insufficient to establish that abortion was medically necessary. insists that the evidence of the clinical psychologist does not meet the medical standard required to establish a substantial risk to X's life. During the parliamentary constitutional committee's hearings on abortion in May 2000. In discussing the report of a clinical psychologist who had examined X. 188 Reproduced with permission of the copyright owner. and the risk of self-destruction is categorized as a lesser order than obstetrical risk. But Hederman J. 5 May 2000. Hederman J. Abortion as a medical treatment is more explicitly the object of legal regulation in the C case which I discuss below. This narrow reading of 'medical' shows how the categorisation 281 282 See The Medical Council. "Abortion 'not needed' to save mothers' lives". . By implication. see Colman Cassidy and Michael O'Regan. (Dublin: Medical Council. 's discussion of what legitimately constitutes medical evidence has implications for the interpretation of abortion as a medical treatment. it is worth considering how Hederman J. The Irish Times. 1998).When Hederman J. This is an argument which both the Medical CouncW 81 and pro-life advocates 282 increasingly stress in the aftermath of the X and C cases. 283 Supra note I at 66. notes specifically that he was not a medical practitioner. several senior obstetricians argued that abortion was medically unnecessary. supra note 4. 283 He denies the relevance of X's suicidal wishes for establishing a real and substantial risk to her life by arguing that there has been no evidence of a medical or obstetrical nature which would lead the court to believe that there is a threat to her life. Hederman J's absolutism leads him to the view that abortion is medically unnecessary. the domestic legal categorization of abortion as a medical service emerges. Further reproduction prohibited without permission. Therefore. Indirect abortions are those where termination of the pregnancy is an indirect consequence of achieving the directly intended end of saving the woman's life. in justifying his view that abortion could only be permissible where 'strictly necessary'. if the unavoidable and inevitable consequences of the efforts to save the mother's life leads to the death of the foetus"/ 84 Hederman J. In arguing that "it is difficult to see how any operation. and in his view legal responsibility. Hederman J. without naming it explicitly. refers to the doctrine of double effect. direct abortions which are not about saving the woman's life are categorized as unnecessary and impermissible. They argue that those cases 284 Ibid. Indirect abortions are not really abortions. Through this distinction between direct and indirect abortions Hederman J. Direct abortions are those where termination of the pregnancy is directly intended. By relieving indirect abortions of moral responsibility. the sole purpose of which is to save the life of the mother. At the same time. Hederman J. at 72.of abortion as a medical treatment is as susceptible to an absolutist interpretation as the categorisation of abortion as an infringement of the public interest. and direct abortions are unnecessary. allows for abortions that are absolutely necessary to save the life of the pregnant woman. Anti-abortion campaigners have consistently relied on the doctrine of double effect to argue that abortion is not a medically necessary service. 189 . could be regarded as a direct killing of the foetus. gives some legal weight to the view that there is a significant distinction between direct and indirect abortions. constructs abortion as a medically unnecessary service. Further reproduction prohibited without permission.Reproduced with permission of the copyright owner. . are not really abortions since saving the woman's life. is the primary direct effect of the treatment. or the victim of incest. were of the view that the fetal right to life did not merit absolute protection in this context. Does the right to bodily integrity. as envisaged by Article 40 3 3. Grogan [1989] I. He asked: What additional considerations are there? Is the victim of rape. to be assessed in a manner different from others? . Rightsholder by virtue of relationships A majority of the Court however. and went on to justify their decision to recognise X's right to abortion. Further reproduction prohibited without permission. 753 at p. condemned the Legislature for failing to provide guidelines on when it is not practicable to protect 'the right to life of the unborn'.R. 190 Reproduced with permission of the copyright owner. Although this interpretation of abortion as a medically unnecessary treatment only has legal support in so far as it infonns Hedennan J. identified in Ryan v. In his judgment. McCarthy J. statutory or otherwise.where tennination of pregnancy is the only treatment which will save the pregnant woman's life.. such as cancer of the womb. it is a prominent aspect of pro-life legal refonn efforts in the aftennath of X. at 82. Attorney General [1965] I. he contemplated circumstances in which abortion might be pennissible. involve the right to control one's own body? 285 285 Ibid.'s dissent.. They go on to argue that pregnant women can receive treatment for any other condition without having an abortion. 767. finding herself pregnant. . by removing the womb. In so doing. while killing the fetus is the secondary indirect effect.R. in SPUC v. 294 and adverted to by Walsh J. amongst the matters to be so regarded.The posing of this rhetorical question. or in her relationships with others. Finlay C. as I believe one must do. The constitutional endorsement of rights to bodily integrity and privacy. it was primarily by reference to constitutional rights a woman has as a mother. created the possibility of justifying X's right to abortion by reference to the constitutional rights which a woman has in her own right. the Court must. as noted above. at 87. in other instances. leads me to the conclusion that in vindicating and defending as far as practicable the right of the unborn to life but at the same time giving due regard to the right of the mother to life. at 53. that the court justified X's right to abortion. justice and charity . for example. therefore. is the furthest that any of the judges go in considering what entitlements are constitutionally bestowed on a woman in her own right. with. 286 Ibid. with persons on whom she is dependent. 287 Ibid. O'Flaherty asked: J. said: I accept the submission made on behalf of the Attorney General. concern itself with the position of the mother within a family group. then 287 the answer is clearly not. as to whether the right to bodily integrity could mean that having due regard to a woman's right to life involves the recognition of her right to control her body. with the right to life of the unborn child as well. provides that: "The State shall. endeavor to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home". However. Can it be that a Constitution which requires the State to look to the economic needs of mothers is unconcerned for the health and welfare and happiness of mothers? I am certain that reading the Constitution as a whole. Such a harmonious interpretation of the Constitution carried out in accordance with concepts of prudence. O'Flaherty J. is referring here to Article 41 2 2 which. of course. 191 .J. that the doctrine of the harmonious interpretation of the Constitution involves in this case a consideration of the constitutional rights and obligations of the mother of the unborn child and the interrelation of those rights and obligations with the rights and obligations of other people and.. emphasis in original. For example.. persons who are dependent on her and her interaction with other citizens and members of society in the 286 areas in which her activities occur. Further reproduction prohibited without permission. .Reproduced with permission of the copyright owner. The Court could have looked to rights which X had in her own right when considering what it meant to vindicate 'the equal right to life of the mother'. emphasis added. The conflation of womanhood and motherhood that is performed in Article 40 3 3 by identifying the pregnant woman as already a mother is the first step in the construction of X as a rightsholder by virtue of her relationship to her fetus. She merits recognition as a rightsholder by virtue of her relationships with others and not in her own right. the true construction of the Amendment. is that. The fact that the Court failed to do so is significant. when there is a real and substantial risk attached to her survival not merely at the time of application but in contemplation at least throughout the pregnancy. The Court then goes on to refer to social. In my view. rather than individual and personal. 288 Ibid. at 80. turns X's right to life into a relational interest.McCarthy said: J. The other constitutional rights to which the Court refers as support for X's right to abortion are predominantly maternal and familial. 192 . paying due regard to the equal right to life of the mother. then it may not 288 be practicable to vindicate the right to life of the unborn. bearing in mind the other provisions of Article 40 and the fundamental rights of the family guaranteed by Article 41. maternal and familial relationships in which a pregnant woman is involved as justifying the invocation of X's right to life as a limitation on the fetal right to life. This dominant view that X's rights ought to be protected in this instance because otherwise her relationships will be damaged. Reproduced with permission of the copyright owner. . Further reproduction prohibited without permission. Thoughts and Possibilities" ( 1989) 1 Yale Journal of Law and Feminism 7. as it has in this instance. supra note is regarded as the key text in developing relational feminism. Taking relationships into consideration as they effect the exercise of rights should not be read as requiring certain relationships in order to be acknowledged as a rightsholder.This development suggests some need for caution on the part of advocates of relational feminism 289 in general. said: I cannot disregard the fact that. there is no doubt that in the eight years since the enactment of the Amendment. many thousands of Irish women have chosen to travel to England to have abortions. Further reproduction prohibited without permission. "Reconceiving Autonomy: Sources. and that relationships should generally be given more moral weight. If taking relationships into consideration becomes a ground for recognising rights capacity in the first place however. 290 See for example: Jennifer Nedelsky. The idea of relational rights has been put forward as an abstract conception which can accommodate the ways in which relationships affect the exercise of rights. . and of relational autonomy and rights 290 in particular. victim of sexual abuse and statutory rape. it is ironic that out of those many thousands. "Property in potential life: a relational approach to choosing legal categories". in the care of loving parents who chose with her to 289 Carol Gilligan's In a Different Voice. (1993) 6 Canadian Journal of Law and Jurisprudence 343. Jennifer Nedelsky. whatever the exact numbers are. 193 Reproduced with permission of the copyright owner. in one case of a girl of fourteen. Relational feminism argues both that women are historically more likely to make moral decisions on the basis of their relationships with others than on the basis of their autonomous interests. Rightsholder as an innocent victim deserving mercy Judicial discomfort at the fact that the process of applying Article 40 3 3 had resulted in compounding the suffering of this vulnerable young woman was particularly evident when McCarthy J. then relational rights may have worrying implications. suicidal.provoked an outpouring of national and international sympathy and discontent. the pregnant woman's innocence rivals that of the fetus.raped. should have the full panopoly of the law brought to bear on them in their anguish. and stopped by the High Court from travelling out of Ireland to have an abortion . and that failure to do so would be perceived as further contributing to her victimization. anything wrong is often presented as precluding the pregnant woman from acting to harm it. doctor and gardai. The fact that the fetus has not done. and with an outstanding sense of responsibility to the law of the land. X is paternally regarded as being pure enough to withstand corruption by abortion. they have consulted with all the right people. In the X case. McCarthy I. Further reproduction prohibited without permission.291 The extremity of X's victimhood . however. They have shown exemplary respect for the law. One of the justifications for protecting the fetal right to life is its innocence. X's purity as a young woman who has become pregnant through no fault of her own and as a faithful legal subject contributes to the Court's decision that she has earned the right to do something which is normally considered impure. .embark on further trauma. indeed cannot do. draws attention to the fact that X and her parents have done nothing wrong. 194 Reproduced with permission of the copyright owner. The Supreme Court was painfully aware that it was perceived as having the opportunity to begin to undo the wrong that the State had done to X. having sought help from priest. and yet X has been singled out from all the women who have sought abortion over the years and subjected to the full coercive effects of the law at an extremely vulnerable time in her life. X's innocence allows her right to act 291 Supra note I at 85. as a limitation on the fetal right to life in the same way as fetal innocence had previously enabled fetal rights to operate as a limitation on women's rights. The notion of 'charity' or 'mercy' also informed the majority judges' decision to acknowledge the risk of self-destruction as a real and substantial risk to life. Finlay C.J. referred to a dictum of Walsh J. in McGee v. Attorney Generaf 92 where he said: Both Aristotle and the Christian philosophers have regarded justice as the highest human virtue. The virtue of prudence was also esteemed by Aristotle, as by the philosophers of the Christian world. But the great additional virtue introduced by Christianity was that of charity - not the charity which consists of giving to the deserving, for that is justice, but the charity which is also called mercy. According to the preamble, the people gave themselves the Constitution to promote the common good, with due observance of prudence, justice and charity so that the dignity and freedom of the individual might be assured. The judges must, therefore, as best they can from their training and their experience interpret these 293 rights in accordance with their ideas of prudence, justice and charity. This apparent reliance on an ethic of mercy points to some interesting contradictions. It is interesting to note that the judges did not recognize the permissibility of abortion in this case because X was raped. The judges mobilized an ethic of mercy in order to justify their decision in response to the threat to the woman's life more than in response to the fact of her having being raped. While the circumstances of her pregnancy through rape indirectly contributed to the judges' decision to be merciful, they relied on the real and substantial risk to her life in order to justify her right to abortion. The judges were engaged in a struggle between a desire not to offend the value of foetal life and a wish to be merciful and not contribute further to the victimization of the pregnant woman. The combination of the 292 293 [1974] I.R. Ibid. at 318-9, cited by Finlay C.J. in the X case supra note 1 at 52. 195 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. perception of X as an innocent victim and as a woman deserving of mercy allowed the Court to find abortion permissible in X's case. By implication, other less innocent and victimized women are less deserving of access to abortion. A conclusion which is supported by the fact that a majority (Finlay C.J., Hederman and Egan J.J.) were of the view that a woman's right to travel was subordinate to the fetal right to life. Women whose lives were not in danger did not have the right to travel abroad for an abortion. In their view, such 'proper cases' required the courts to restrain by injunction the removal of the 'unborn' from the jurisdiction so that its right to life may be defended and vindicated. Rightsholder protection in need of paternal Egan J. made some particularly interesting comments in his consideration of how competing constitutional rights should be harmoniously interpreted. An examination of his comments illustrates how the depiction of woman as needing paternal protection has contributed to the Supreme Court's recognition of a woman's legal interest in abortion in the X case. He said: In the People v. Shaw [1982] I.R. 1 Kenny J. stated that there was a hierarchy of constitutional rights and, when a conflict arises between them, that which ranks higher must prevail. This cannot be taken to mean that an immutable list of precedence of rights can be formulated. The right to life of one person (as in Shaw's case) was held to be superior to the right to liberty of another but, quite clearly, the right to life might not be the para1 1.ount right in every circumstance. If, for instance, it were necessary for afather to kill a man engaged in the rape of his daughter in order to prevent its continuance, I have no doubt that the right of 294 the girl to bodily integrity would rank higher than the right to life of the rapist". 294 Jbid. at 92, emphasis added. 196 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. This latter statement is revealing in a number of ways. For one thing it does not appear to represent the law given that killing in an act of defence is normally only justifiable or excusable if it occurs as a response to an immediate threat to life. Secondly, it is interesting that the example which first springs to Egan J.'s mind refers to a father's entitlement to act in response to a daughter's violation of bodily integrity, rather than to the daughter's own entitlement. I am not suggesting that he considers that this is the only possible way of construing the issues, but rather that it is important to consider the implications of his hypothetical. In his example, Egan J. constructs the entitlement to stop a violation of the right to bodily integrity as accruing to the father of the rightsholder rather than to the rightsholder herself. Even if one concedes that the rape victim in his example might be disabled from actively responding in the immediacy of the situation, it is still significant that Egan J. named the father as the one entitled to intervene on her behalf. The patriarchal assumption that fathers act for and protect women seems to inform Egan J.'s statement. While Egan J.'s consideration of the importance of the right to bodily integrity is welcome at one level, the manner in which he used it to justify paternal protection is worrisome. In other words, he acknowledged that bodily integrity is a significant interest which must be recognized when considering the interpretation and ambit of the right to life. This acknowledgement is important and could provide a way of justifying a woman's right 197 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. to abortion as a woman rather than as a mother. 295 But, the expression which Egan J. gave to the right to bodily integrity reproduces the idea that women need protection and are unable to act for themselves. This depiction of womanhood has facilitated the Court's recognition of a right to abortion in a case which concerns a young woman who is perceived as a vulnerable girl in need of protection. The problematic assumptions informing Egan J.'s example become all the more obvious when one considers how virulent the justices have been in denying that a woman's right to bodily integrity may justify her killing the foetus. A girl's right to bodily integrity justifies her father killing her rapist, and yet a woman's right to bodily integrity does not justify her killing her foetus. The juxtaposition of these two situations illustrates how the perceptions of the foetus as innocent victim, and of woman as victimizer, play a part in justifying the limitation of a woman's right to abortion to circumstances in which her life is at risk. Through the X case decision a crisis produced as a result of the absolutist content of the post-colonial legal form is resolved by recognising an individual right to abortion but by making this right contingent on its promotion of relationships, on the merit of the woman's claim, and on a paternalist rationale. This attribution of relational content to a woman's right to life is explained by the limits which post-colonial legal form imposes on the interpretation of new legal content. Although the challenge which X posed means that legal 295 Drucilla Cornell argues that abortion should be recognized as a riQht to bodily integrity to which women are entitled if they are to be acknowledged as worthy of personhooa, !.Jrucilla Cornell, The Imaginary Domain: Abortion, Pornography and Sexual Harassment (New York: Routledge, 1995). 198 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. fonn is no longer capable of supporting absolutist content in its quest to keep abortion an object of national control, legal fonn manages the transition to new legal content by constraining the capacity of rights to advance individual interests which might challenge national control of reproduction. In this way, post-coloniallegal fonn manages to continue to constitute an independent nation state by making abortion an object of the people's control. But now it manages this task by making it a paternalist decision whether a woman's relationships merit the recognition of her rights, rather than by denying those rights altogether. Pro-choice services as the exploiters of women At the same time as the post-colonial legal form begins to adopt its new content as the protector of women, pro-choice service providers become more explicitly constructed as the exploiters of women, as those from whom women need protection. While women and pro-choicers were both regarded as a threat to fetal life in the pre X days, women now come to be regarded as the victims of service providers in need of legal protection. The principal legal mechanism by which this comes about is the 1995 abortion infonnation legislation which makes the unsolicited distribution of abortion information and the advocacy of abortion in the context of pregnancy counselling illegal. By making the 'promotion' of abortion subject to fine the legislation implies first that providers of abortion infonnation would promote abortion if they could, and second that the promotion of abortion is harmful. 199 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Given that the Supreme Court had commented that a woman's right to travel was subordinate to the fetal right to life it seemed that women who did not meet the test of having a real and substantial risk to their lives did not have the right to travel for an abortion under domestic law. abortion infonnation and abortion travel separately. to obtain an abortion.e. Rather than all three being conflated as simultaneously and similarly violations of the constitutional right to life of the unborn. When the X case displaced absolutism as the dominant interpretation of Article 40 3 3 abortion began to be dissociated from abortion infonnation and abortion travel as objects of legal regulation. However. then arguably women could not rely on a right to 200 . and the fact that two judges expressed the view that the right to travel could not be curtailed because of a particular intent i. In the aftennath of the X case the implications of Protocol 17 also contributed to the evolution of a legal regime which would regulate abortion. however.In order for this shift to occur. A majority of the judges were of the view that a pregnant woman's right to travel could be constrained by the fetal right to life where that woman's life was not at real and substantial risk. the fact that they recognized the tension between the two rights. This happens first in the X case itself as a legal distinction between a right to abortion and a right to travel for an abortion begins to take hold. And if Protocol 17 made Article 40 3 3 exempt from the application of Community law. travel and infonnation emerge as lesser threats to the value of fetal life than abotiion. abortion infonnation had to first emerge as a distinct object oflegal regulation. signal that abortion travel was beginning to be legally recognized as a distinct object of regulation. Further reproduction prohibited without permission.Reproduced with permission of the copyright owner. . The Repeal the Eighth Amendment Campaign demanded both the repeal of Article 40 3 3 and the withdrawal of the Protocol. Public anger at the government's secret handling of the Protocol also jeopardized the acceptance of the Maastricht Treaty. the European Council of Ministers refused to insert the clause into the Treaty as they were fearful that this would reopen the Treaty negotiations and encourage other States to seek amendments. the government sought to amend the Protocol so that rights to travel and information would be guaranteed. in accordance with conditions which may be laid down by Irish legislation. 298 However. supra note 25 at 145. ibid at 602. infonnation relating to services lawfully available in Member States". Instead the 296 297 298 See O'Reilly. 1992.travel derived from Community law if the Maastricht Treaty was adopted. Five days after the Supreme Court judgment in the X case a new Pro-Life Campaign was launched seeking a complete ban of abortion. they did not want the debate on Maastricht to be consumed in controversy over abortion. 201 . Therefore. They had not intended that the Protocol would protect a constitutional provision which allowed abortion. The Council for the Status of Women (now the National Women's Council) declared that women could not be asked to vote for a Treaty which denied them rights to information and travel. Murphy.297 As the Government was anxious that the people vote for adoption of the Maastricht Treaty of European Union in the upcoming Referendum of June 18th. As a result the government's campaign for the Treaty became embroiled in abortion politics. The proposed addendum read: "This Protocol shall not limit the freedom to travel between Member States or to obtain or make available in Ireland.296 Those who were anti-abortion were concerned that the constitutional article which they had sought to isolate from the effects of Community law had now been interpreted as accommodating a limited right to abortion. supra note 272 at 141. Reproduced with permission of the copyright owner. . Further reproduction prohibited without permission. Protocol 17 to the Treaty and the Solemn Declaration were irrelevant to the issues before the court. that since the Maastricht Treaty was not yet in force. to obtain to make available in Ireland. 1992. Morris J. in conformity with Community law. might give in relation thereto. The Solemn Declaration. Ultimately. they will. 471. as was any evidence P. and particularly in securing a promised $16 billion in development funds. information relating to services lawfully available in Member States. is diametrically opposed to the government's original intention in implementing the Protocol. be favourably disposed to amending the said Protocol so as to extend its afoplication to such constitutional amendment if Ireland so requests. in its affirmation of rights to travel and information. following the entry into force of the Treaty on European Union. 46. stirred them into promising abortion reform. Hereby give the following legal interpretation: That it was and is their intention that the Protocol shall not limit freedom either to travel between Member States or in accordance with the conditions which may be laid down. made permanent the injunction against the Student Unions preventing them from distributing abortion information about abortion services in SPUC v. in the event of a future constitutional amendment in Ireland which concerns the subject matter of Article 40 3 3 of the Constitution of Ireland and which does not conflict with the intention of the High Contracting Parties hereinbefore expressed. 30 [1994] li. 3) [1992] 21. a senior adviser to the Attorney General. The need for legal reform on the issue of abortion information became all the more immediate when Morris J. At the same time the High Contracting Parties solemnly declare that. The injunction . Grogan (no.R. In SPUC v.R. 299 Having failed to resolve the dilemma at the level of Community law the Government went on to propose constitutional amendments which would protect abortion information and travel rights but make abortion itself more restrictive than the X case judgment allowed. at 99..Member States agreed to accept a 'Solemn Declaration' by Ireland on the Protocol. 4).300 This judgment was given after the X case and before the amendment of 299 The Solemn Declaration states: "The High Contracting Parties to the Treaty on European Union signed in Maastricht on the 7th day of February. the Irish people voted to accept the Treaty on European Union by a majority of69% in June 1992. on the grounds. The government's interest in securing Ireland's participation in the European Union. by Irish legislation." Ibid. Having considered the terms of Protocol 17 to the said Treaty on European Union which is annexed to that Treaty and to the Treaty establishing the European Communities. had refused to admit evidence the defendants sought as to the nature and effect in law of the Solemn Declaration of the High Contracting Parties to the Maastricht Treaty according toP. Grogan (no. Further reproduction prohibited without permission. .202 Reproduced with permission of the copyright owner. Grogan. Because this right does not have the appropriate relational context. See: SPUC v.Article 40 3 3 in order to guarantee rights to information. He did so on the grounds that the defendants distributed the documents in question to the community at large where as the X case identified a limited class of persons as entitled to terminate their pregnancies and therefore entitled to information about abortion services. as a result of the X case. Morris J. felt that the limited nature of the category of persons entitled to abortion information meant that the defendants could not claim an entitlement to provide information generally. His reasoning demonstrates that he recognises that at least some women have a right to abortion information. an injunction against the provision of abortion information violated the rights of these women. The recognised right will not necessarily be exercised only in relationships between the student unions and women who need abortion to avoid a life threatening risk. but the effect of his conclusion is to deny them that right. supra note 200. Morris J. Because the indiscriminate provision of abortion information by the student unions is not the appropriate response to an X-type right to abortion information. This interpretation is further evidence of a paternal relational approach to rights. gave this decision on the grounds that the defendants' distribution of the relevant information was not protected by Community law and was unlawful by being contrary to the provisions of the Constitution. 203 . that right is denied. rejected the argument that as abortion was permitted in circumstances of a real and substantial risk to the life of the pregnant woman. it is paternally determined not to warrant the lifting of the against the student unions was finally lifted in March 1997 in the aftennath ofliberalizing abortion infonnation legislation. Morris J. Reproduced with permission of the copyright owner. . Further reproduction prohibited without permission. Thirteenth and Fourteenth Amendments provided respectively: It shall be unlawful to terminate the life of an unborn unless such termination is necessary to save the life. The student unions who. This subsection shall not limit freedom to obtain or make available. of the mother where there is an illness or disorder of the mother giving rise to a real and substantial risk to her life. on abortion information. This subsection shall not limit freedom to travel between the State and another State. While the combined efforts of the pro. These pro-choice providers cannot be trusted to treat abortion information correctly and are therefore a threat which must be restrained. by seeking open distribution of abortion information. The proposed Twelfth. not being a risk of self-destruction. as distinct from the health. and a 'yes' vote on the travel and information issues. and abortion travel removed any doubt as to their status as distinct objects of legal regulation. The anti-abortion lobby had sought a rejection of all three amendments and the government had sought their acceptance. information relating to services lawfully available in another State. subject to such conditions as may be laid down by law. Pro-choice advocates had asked for a 'no' vote on the abortion issue. The three referenda of November 1992 on the so-called substantive issue of abortion.injunction. have failed to provide the appropriate relational context for exercise of a recognised right. are denied the protection of the law.and anti-choice forces 204 . and acceptance of the amendments on information (60%/40%) and travel (62%/38%) rights. The result of the November I992 Referendum was a defeat for the amendment on the 'substantive issue' of abortion (35%/65%). in the State. Further reproduction prohibited without permission. .Reproduced with permission of the copyright owner. supra note 14 at 47. and Dublin Well Woman Centre Ltd.the Fourteenth Amendment . She was of the view that since there was a constitutional right to provide abortion infonnation. A decision not to lift the injunction set the rights of 301 Some commentators have referred to this referendum result as an anti-abortion vote. Ronald Dworkin comments: "the first of these votes was widely understood as a refusal to liberalize abortion". the Supreme Court had varied the High Court's injunction order against the pregnancy counselling centres on appeal. dissented on the grounds that the Supreme Court had an inherent jurisdiction to protect constitutional rights. (no. Further reproduction prohibited without permission. In July 1993 the Supreme Court decided to refuse to lift the injunction against Opendoor and Dublin Well Woman clinics. under Article 34 of the Constitution. 333. . 302 The Attorney General v. hereinafter referred to as Attorney General v. the injunction represented a violation of constitutional law. For example. the overall result was read as more of a pro-choice than an anti-abortion victory given its no. the success of the infonnation amendment did not signal that all the trouble was over for pro-choice organizations. 301 However. The Supreme Court refused to lift the injunction on the grounds that it had no jurisdiction to lift the order as that would require interpretation of new constitutional law . As the Supreme Court was a court of appeal without originating jurisdiction. the first woman appointed to the Supreme Court. Denham J. 2).without the issue having arisen or having been decided in the High Court. 302 The second defendant: Dublin Well Woman. the Court should not hear and detennine an issue otherwise than on appeal. 2) [1994] 2 I. had applied to the Supreme Court in order to have the perpetual injunction discharged subsequent to the Amendment guaranteeing not to limit the freedom to obtain or make available abortion infonnation. yes.R. Dworkin. 205 Reproduced with permission of the copyright owner.. In the original case. Open Door Counselling Ltd. Opendoor (no. yes.contributed to the defeat of the proposed Twelfth Amendment. pattem. 81.000) (s. However. to a fine not exceeding I .pregnant women and of the second defendant at nought. 1995 [1995] 2 I. and information on all pregnancy options must be provided (s. This dismissal on jurisdictional grounds again contributed to the idea that pro-choice services would continue to find it difficult to access legal protection. 304 303 and the Supreme Court determination that such have since provided legal direction on how abortion information is to be regulated.J. the provision of such information is only lawful if it is truthful and objective and does not advocate or promote the termination of pregnancy (s.L. and consolidated the demand for legislation to help clarity the issue. The subsequent introduction of legislation to regulate the provision of abortion information in 1995. on summary conviction.8).500 punts (approx. In provisions seemingly targetted at student unions and other similar political pro-choice organisations.5). In provisions targetted at pregnancy counselling centres. 304 In the Matter of Article 26 of the Constitution and in the Matter of the reference to the court of the Regulation ofinfmmation (Services Outside the Statefor Tennination of Pregnancies) Bill. Contravention of any of the Act's provisions is an offence and entails liability.R. the making of the actual appointment for a termination on behalf of the woman is prohibited (s. 303 Regulation of Information (Services outside the State for Te1mination of Pregnancies) Act. legislation was constitutional.IO). 8. the Act provides for the lawful publication of information required by a woman seeking abortion outside the State. the judgment was delivered by Hamilton C. public display or distribution without solicitation of abortion information is unlawful (s. no.3).4). 206 . Basically.M. 1995. $3. hereinafter referred to as In the Matter of the Regulation of Infmmation Bill. Acts of the Oireachtas. Further reproduction prohibited without permission.Reproduced with permission of the copyright owner. . As a result. it would appear that it is lawful to have leaflets containing abortion information available at a meeting but that it is not lawful to hand out those leaflets unless they are requested.The Act represents a significant change in Irish abortion policy. Abortion promotion was to be avoided because even if abortion was necessary it should not be condoned or approved of in any way. Further reproduction prohibited without permission. It is not lawful to display a poster with 207 Reproduced with permission of the copyright owner. As a result of trying to balance the need for the lawful provision of abortion information with the need for the lawful restriction of abortion promotion and referral. the Irish College of General Practitioners has circulated its membership with information about abortion clinics in Britain. It formally recognised that information about abortion may legitimately be provided in publications and in the context of pregnancy counselling. Women seeking abortions may now access support services more easily and with less fear of being stigmatized. and advertisements for abortion clinics are back in magazines and newspapers. and abortion providers would profit. Abortion referral had to be stopped because otherwise women would treat abortion as if it was just another minor procedure. But in the same moment that absolutism was rejected the 'promotion of abortion referral' was also rejected. . The legislation's restrictive measures against abortion advocacy were taken because of a perceived need to prevent pro-choice services promoting abortion or referring women for abortion. the Act is replete with contradictions. For example. In symbolic terms the adoption of this legislation confirmed the rejection of the pro life absolutism which had informed the law and which informed vigorous pro-life opposition to the Bill. the injunctions have been lifted. 307 President Robinson's decision was widely perceived as an effort to copperfasten the legislation and avoid the perpetuation of uncertainty. 208 . or to question the validity of a provision of a law where the corresponding provision in the Bill for such law shall have been referred to the Supreme Court under the said Article 26". its constitutionality can never be challenged again. In the circumstances of an Article 26 reference. refer any Bill to which this Article applies to the Supreme Court for a decision of the question as to whether such Bill or any specified provision or provisions of such Bill is or are repugnant to this Constitution or to any provision thereof'. she will be denied her right to free speech. Section 1. whether assenting or dissenting. the Bill for which shall have been referred to the Supreme Court by the President under Article 26 of this Constitution. or any provision of a law. or a Bill expressed to be a Bill containing a proposal to amend the Constitution. 307 Article 34 3 3 provides: "No Court whatever shall have jurisdiction to question the validity of a law. then President Mary Robinson decided it best. shall be pronounced nor shall the existence of any such other opinion be disclosed". If the woman receiving the information is in the wrong kind of relational context. or a Bill the time for the consideration of which shall have been abridged under Article 24 of this Constitution".the number of an abortion clinic on it. subsection 1 provides: "The President may. The possibility of a future constitutional challenge to the Act was not remote. after consultation with the Council of State. and no other opinion. 306 Article 26 2 2 provides: "The decision of the majority of the judges of the Supreme Court shall. the Court must give a one opinion judgmene 06 and if the Bill is found constitutional. to exercise her prerogative under Article 26305 of the Constitution to refer the Bill to the Supreme Court in order to assess its constitutionality. after consultation with the Council of State. be the decision of the Court and shall be pronounced by such one of those judges as the Court shall direct. for the purposes of this Article. particularly given the level of the anti-abortion lobby's discontent. As the Bill was a highly controversial negotiation of conflicting constitutional rights. but it is lawful for centres who would supply such contact information to advertise themselves. one which countenances abortion promotion or referral. The prevention of further constitutional challenge and the fact that no dissenting opinions would 305 Article 26 provides: "This Article applies to any Bill passed or deemed to have been passed by both Houses of the Oireachtas other than a Money Bill. Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. . The Court said that therefore in adopting the fourteenth amendment the people intended that freedom of abortion information should not be limited by the eighth amendment. meant that if the Bill was found constitutional no-one would be able to challenge it or use a dissenting opinion against it in the future. was also adopted with the intention that abortion travel should not be limited by reference to the right to life of the 'unborn'. however. Freedom of information is no longer dismissed as a legal interest of a lower constitutional status than the fetal right to life. In recognizing that the legislation represented a fair balancing between conflicting constitutional rights. On the 12th May 1995. The separating out of these legal interests. the legislation and the Supreme Court decision. .be given. Through the referenda. abortion. abortion information and abortion travel have become legally distinct as the legal issue of conflicting rights expands to accommodate the balancing of women's freedom of movement and information with the right to life of the 'unborn'. the Supreme Court found that the Bill was constitutional and on the same day the President signed it into law. Further reproduction prohibited without permission. also facilitates the separating out 209 Reproduced with permission of the copyright owner. the Court held that the people recognized there was a conflict between the freedom to obtain abortion information and the fetal right to life. The conflict between competing rights was resolved by invoking the authority of the 'people'. and asserting that the legislative accommodation of the conflicting rights was constitutional because it was in harmony with the will of the people. By analogy one could argue that the adoption of the thirteenth amendment which recognizes that Article 40 3 3 should not limit freedom to travel between States. A colonial abortion threat? State support for In November 1997. In imposing criminal penalties for promoting abortion and for publicly displaying abortion information. At the same time as the law begins to depict pro-choicers as the exploiters of women which it now seeks to protect. Fahy and C. v. The depiction of the woman in need of abortion as an innocent in need of protection is maintained as abortion in circumstances of a threat to life is upheld. These legal assumptions that it is in women's interests to curtail some types of abortion information. was 308 The young woman. The less deserving woman is the one for whom travel and information rights are secured. and B. The High Court denied her parents their request to quash a District Court order allowing their daughter to travel to England for an abortion under the care of the State. Otherwise women will not be able to resist the 'promotion' of abortion. they must continue to do so in a culture where abortion is stigmatized.of the parties involved in acting on those interests.. thereby constructing them as the danger to women and to the protection of fetal life. the law sees itself as protecting women from being persuaded into terminating their pregnancies. Although women can legally obtain information. supra note 2. another tragic case involving a pregnant thirteen year old rape victim came before the courts. Eastern Health Board. But they also indicate a legal desire to constrain pro-choice services. a member of the travelling community/ 09 308 See A. and that women are vulnerable to manipulation by abortion promotion are further evidence of paternalist legal interpretation. the notion that the value of fetal life merits absolute protection is explicitly rejected. 210 . Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. . Justice Geoghegan found that an abortion which came within the terms of the X case. or 'travellers'. the Eastern Health Board. When the District Court granted that order the parents applied to the High Court for a judicial review. they changed their minds after members of anti-choice organizations such as Youth Defence approached them. including that abortion could not constitute a medical treatment under the Act given the constitutional right to life of the 'unborn'. and that a State agency. be permitted to make all the necessary arrangements. As a result the Eastern Health Board within whose care the girl had been placed. Although her parents were initially supportive of her wish to terminate the pregnancy. ° 211 . on several grounds. 2 December 1997. 31 Christine Newman. abroad to obtain a termination of her pregnancy. applied to the District Court to extend the care order under the Child Care Act. Plans for an appeal to the Supreme Court were eventually abandoned and C was permitted to travel for an abortion. we can identify two interesting developments in the law. abortion is explicitly 309 The Irish travelling community. Funding for the legal action was organized by anti-choice organizations. as in this instance. the young woman in question. 310 Through this upholding of the Order under the Child Care Act directing that C be permitted to proceed with a termination of her pregnancy. The High Court refused to quash the order primarily because Mr. For the first time.pregnant due to rape and had been taken into the care of the State shortly after it was discovered that she had been raped by a friend of the family. so that it could bring C. The Irish Times. "Rape Victim free to have Abortion in England". 1991. was a medical treatment under the Act. are a distinct ethnic group in Irish society who have historically led a nomadic lifestyle. Reproduced with permission of the copyright owner. . Further reproduction prohibited without permission. In five short years. in the C case the arrangements were publicly funded and made by public authorities. Through the application to C of statutory recognition that directions may be given in relation to the medical treatment of a child where an Interim Court Order is made. The argument that abortion ought to be regulated like any other basic health service emphasizes the need to remove the stigma 212 Reproduced with permission of the copyright owner. the Eastern Health Board applied for a continuance of the care order and assumed public responsibility for supporting C's abortion decision. Secondly. but should be incorporated into the general provision of reproductive health services. the State assumed financial and caretaking responsibility in assisting C to obtain an abortion. Pro-choice and feminist advocates have long argued that abortion should not be treated as an exception.recognized as a medical treatment in domestic law. But when C's parents changed their minds about their support for her wish to terminate the pregnancy. Initially the Eastern Health Board had apparently hoped to avoid such a public form of support for C's abortion by releasing C into the care of her parents who would privately make arrangements for her abortion. Further reproduction prohibited without permission. . abortion is included within the category of 'medical treatment'. This development in the regulation of abortion as it becomes recognized as a 'medical treatment' for which there is public responsibility represents a significant improvement from a feminist perspective. to providing (through the Eastern Health Board) for C's travel for an abortion. Unlike the X case where X's parents were permitted to make private arrangements for her to terminate her pregnancy. the State (through the Attorney General) has moved from stopping X from travelling for an abortion. the C 311 See Sheldon. the question of who and when someone has access to abortion is decided by doctors. affirms that abortion is being considered as primarily medical rather than health related. 213 Reproduced with permission of the copyright owner. In the first place. Pro-choicers assess abortion as a health need. For pro-lifers. neo colonial associations which had accompanied the ECJ's construction of abortion as a medical service. The fact that this was a matter of national law categorization rather than Community law also avoided the foreign. And the legal recognition of abortion as a medical treatment does contribute to its destigmatization. The fact that C was examined by two psychiatrists.from abortion and make it generally accessible. rather than by a psychologist as was the case with X. Further reproduction prohibited without permission. 'Medical' categorization can operate as a means of controlling access to abortion. and even argue against it as a psychiatric treatment on the grounds that women are less likely to harm themselves when pregnant. supra note 15. The potential for 'medicalness' to operate as a means of restricting abortion access is reflected in the approaches taken by pro-choice and pro-life parties to the categorization of abortion as a medical or health issue.311 In the second place. and insist that a broader more holistic approach must be taken so that harms to a woman's psychological well-being may serve as a justification for abortion. . But abortion's categorization as 'medical' means that it is being constructed in narrower terms than a reference to 'health' would suggest. the evidence of a woman's need for abortion is assessed according to medical standards. Pro-lifers assess abortion as an obstetrical need. For pro-choicers. However. we must first address some of the assumptions that informed how the Court came to interpret abortion as a medical treatment in this case. The Dublin Abortion Rights Group. The Irish Travellers' Movement held a press conference objecting to the racism it saw in the media treatment of the case. safe and legal abortion facilities should be made accessible in Ireland. 2 December. argued in response to the C case that free. The Pro-Life Campaign argued in response to the C case that the medical profession was clear in its rejection of abortion as a medical treatment and that the decision of the Eastern Health Board to accept abortion as a medical treatment demanded further explanation. for example. that she lived in particularly squalid conditions before being taken into care. 1997. The Court noted that C was a member of the travelling community. An Ireland which had been enjoying increased prosperity since the mid 1990s reacted strongly to the poverty in which C and her family lived. the emergence of abortion as a medical treatment enables new types of arguments to be made. 214 . and that she was one of twelve children. Photographs of C's family caravan were published in the press. exposing C and her family to intrusive public scrutiny in a manner spared the middle class family of X.case's acceptance of psychiatric evidence of C's need for a termination constructed the medical need for abortion too broadly. 312 C's poverty. "Laws sought on abortion after parents' decision". If we are to understand the potential of this legal content however. her Christine Newman. 312 Once they had lost the legal argument. the same decision constructed medical need too narrowly. they switched to a medical argument. The Irish Times. It further noted that there was a well-founded view that her parents did not respond appropriately to her rape. Reproduced with permission of the copyright owner. . Further reproduction prohibited without permission. and the 'particularly squalid' conditions in which she had lived were worthy of remark even though they apparently had no relationship to the legal grounds on which the decision was 313 See Jim MacLaughlin. travellers have found it difficult to maintain their lifestyle and livelihood. Travellers and Ireland: Whose Country? Whose History? (Cork: Cork University Press. are comparable. travellers face a colonial-like threat in so far as they are expected to adopt the ways of the settled population in order to gain access to status and resources. In this sense. it becomes easier to understand why the judge would think that C's status as a traveller. Although these groups do not share a history of genocide. 313 Consistently blamed for their own poverty and denied publicly funded halting sites for their caravans. and her membership of a family of twelve children provided justification for the emerging public view that C ought to have an abortion. some of the contemporary struggles they face. Given this public context. 1995). C was to be spared motherhood because she was unfit for it. The colonial attitude that travellers' reproduction should not be encouraged played a part in the public demand that C be assisted in getting an abortion. While X was to be spared motherhood because of her innocence. against assimilation for example. 215 . This response to C betrays aspects of the systemic discrimination which travellers have experienced at the hands of the settled population. her eleven siblings. Their situation as a minority population whose culture has been denigrated and who have been denied access to basic material resources has been compared to that of native populations in the Americas and Australia.membership of the travelling community. .Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. protectionist desire to alleviate X's suffering. authoritative desire to act for C's own good. to become a more directive. Further reproduction prohibited without permission. C's life conditions were interpreted as contributing to her need for an abortion even though the explicit grounds on which her termination was permitted were that her suicidal condition meant that abortion was a medical treatment for which the Eastern Health Board could make arrangements on her behalf. 216 Reproduced with permission of the copyright owner. Through the C case the paternalist concern for the young woman's circumstances goes beyond a benevolent. Implicitly.made. . Legal form manages this transition from an absolute public interest to a relational paternal one by maintaining the objective of representing the sustenance of fetal life as an object of 217 . Thus I argue that since 1983 abortion law has moved through the identification of an absolute public interest to the identification of a relational paternal interest in reproduction as the dominant points around which the content of abortion law revolves. I have identified aspects of social discourses and constitutional protection itself as evidence that abortion law operates as a symbolic and material means of national reproduction in a post-colonial context. In this process. But this legal objectification of women through the denial of abortion cannot sustain itself in such oppositional. the legal task becomes the identification of a new method of harmonizing the public interest in reproduction with the abortion right of exceptionally victimized women. The more the law constructs an absolutist anti-abortion stand. Conclusion In this dissertation I have focused on drawing out the post-colonial influences on Irish abortion law. women as the site of abortion become the emblem of a post-colonial pro-natalism which distinguishes Ireland from England and produces a cultural authenticity in its perceived adherence to 'traditional' Catholic values. Once rendered the terrain on which post-colonial Ireland reproduces itself. absolutist terms given the contradiction posed by women's abortion activity. Once absolutism does rupture through the recognition of X's right to abortion.6. the more likely it becomes that that absolutism must rupture. women are denied their legal subjectivity and their formal legal interests are neglected. Further reproduction prohibited without permission. .Reproduced with permission of the copyright owner. abortion becomes legally recognized as a restricted medical treatment. The way abortion gets talked about in civil society is not necessarily the same as the way abortion gets discussed in the legal forum. legal fonn also assists in the task of explaining the connections between social content and legal content. In arguing that Irish abortion law is a post-colonial legal fonn I identify the mechanism which explains why and how the legal content of Article 40 3 3 has changed the 218 . As this legal fonn facilitates the adoption of new legal content it changes shape slightly as paternal relationalism displaces public absolutism as the means by which national objectification of reproduction is achieved.national control. As Irish society begins to tolerate victimized women's need for abortion and identifies pro-choice agencies as 'abortion promoters'. This trend is abruptly curtailed when the social shame produced by the domestic recognition of the barbarity of the X case becomes the exercise of judicial mercy towards X. Through law the trend in social discourse which represents tolerance of abortion as a colonial value becomes the judicial exclusion of women's interests in interpreting the right to life of the 'unborn'. But it also provides a means of connecting social content and legal content. These connections between the legal content and the social content of abortion demonstrate that legal relations and social relations express themselves in distinguishable ways at the same time as they interrelate. As well as helping to explain the management of change in the content of law. Legal fonn imposes its own constraints on objects of regulation such as abortion. While post-colonial references were evident in social discourse they were not explicit in legal discourse. Further reproduction prohibited without permission. .Reproduced with permission of the copyright owner. The way that the form of abortion law organizes its content into absolutist and then relational patterns becomes more transparent once the history of that form as a product of post-colonial nationalism is noted. Likewise the constitutional form's historical role as a means of literally constituting the people as a nation with authority over their state is remade as the national courts adopt these absolutist and later relational patterns of interpreting Article 40 3 3's interest in unborn life as the people's interest. supra note 23. Legal form analysis requires both an explanation of the production of a particular form of legal regulation and an account of the manner in which that form organizes its components. In bringing out this post-colonial cultural aspect of Irish abortion law I have aimed to supplement the scholarship which has already criticized restrictive abortion policies for their denial of women's personhood and for their social construction of women as mothers. As a post-colonial legal form abortion law presents feminism with the challenge of critiquing the regulation of women towards the ends of both biological and cultural reproduction.way it has. In an Irish context the implicit recognition of women's reproductive bodies as a site for the cultural reproduction of Irishness has become the means by which the denial of women's individual and social interests has been justified. 314 Fraser. 219 . The concept of legal form provides a means of tracing the specific role of law in social relations. the It is a bivalent form of oppression in Fraser's 314 terms requiring both transformation of the political economic regime which takes women's reproductive labour for granted. and of the cultural regime which identifies women as a means of transmitting cultural values. Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. . for the mostpart. it will become more obvious as an obstacle should the abortion reform process provide legal guidelines as to when an abortion may be performed by healthcare professionals. are also operating to constrain women's abortion access. Although medical ethics has long been an influence on the debate.My analysis of abortion law and its post-colonial underpinnings is not meant to suggest that the relationship between the legal and the post-colonial is the only or even the primary explanation for the obstacles which Irish women face in seeking access to abortion. Much more work needs to be done on the role of the medical profession historically and currently in bringing about the dominant anti-abortion ethos. Rather the post-colonial legal is but one aspect of a complex nexus of relations which affect women's abortion activity. The medical ethical regulation of abortion is currently more restrictive than the legal regulation. In the aftermath of the Supreme Court decision in the X case. the Medical Council continues to insist that. Clearly medical and economic forms of regulation. Why have doctors and nurses. an abortion is never necessary as a medical treatment for a pregnant woman. The existence of a market in abortion services across the Irish sea has meant that Irish women have historically been able to access abortion once they can get the necessary 220 . insisted on the exclusion of abortion from the reproductive health services they provide? What should the relationship be between the legal and the ethical regulation of medicine? These are among the questions which could be explored in seeking a fuller picture of the role of medicine and the medical profession in producing the current abortion context in Ireland. for example. as a matter of medical ethics. Further reproduction prohibited without permission.Reproduced with permission of the copyright owner. . financial resources together. Both the IFPA and Marie Stopes have arrangements with British non-profit abortion providers which make abortion less financially cumbersome than it would be otherwise. Further reproduction prohibited without permission. The implications 221 Reproduced with permission of the copyright owner. Economics has clearly already had an impact on the availability of abortion. while leaving those who cannot vulnerable to the particularities of an underfunded public system. Finally women and men on low income do not have to pay for contraception or sterilization or other basic reproductive control measures. Should abortion become legally available in Ireland. Pro-choice reproductive health services such as the Irish Family Planning Association and the Marie Stopes Reproductive Choices Centre have focused much of their energy on tackling the economic barriers to abortion. If abortion becomes recognized as a medical treatment its access will be determined by the way in which health services are generally managed in Irish society. The task of making abortion freely accessible for Irish women in their own country will require a challenge to the two tier health system which provides health services more quickly and efficiently to those who can pay. . economics will continue to affect access. The way in which agencies who serve women's reproductive needs have focused on overcoming the economic barriers to abortion access shows that market regulation has also been a problem for women. The IFPA has successfully sought state funding for its pregnancy counselling service so that women in financial need do not have to pay to access abortion information in this context. The IFPA has successfully lobbied for all of its reproductive health services to be included on the Medical Card Scheme which provides those eligible with free health care. Further work on the particular agencies which have contributed and will continue to contribute to the shaping of abortion law would also benefit the critical explanation of abortion in Irish society. those organizations adopted mainstream political methods. Youth Defence was born. more 'respectable' organizations such as LIFE. Youth Defence (YD) is by far the most aggressive and militant of the 'pro-life' groups and has an uneasy relationship with the older. Closer investigation of the role of 'pro-life' and pro choice political groups in abortion law and politics is merited both because of the significant influence they have had in their active engagement and as themselves records of the changes which have occurred in abortion politics. . When abortion law substantially conformed with the objectives of 'pro-life' organizations. Once abortion law began to differentiate itself from an absolutist 'pro-life' policy 222 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. YD's aggressive poster campaigns and their picketing of politicians' homes and reproductive health clinics distinguish them from other 'pro-life' groups who have preferred lobbying and media participation as their forms of communication and persuasion. I have already mentioned the medical profession and pro-choice reproductive service providers as significant players in the abortion context who are worthy of more particular critical attention. in the immediate aftermath of the X case's introduction of some liberalization of abortion. For example.of abortion's gradual and restricted inclusion in the health care system will need to be assessed if the economic barriers to women's abortion access are to be adequately addressed. the Society for the Protection of Unborn Children and the Pro-Life Campaign. Further reproduction prohibited without permission. But in the aftermath of the adoption of Article 40 3 3 pro-choice strategy was left largely to the student unions and the pregnancy counselling services.Abortion Reform . would provide interesting insights into these relationships between historical events. an organization which adopts alternative aggressive methods has emerged in order to confront what it sees as a sell-out to the abortion agenda.however. as well as other agencies in the abortion debate.Irish Women Tell their Stories. and socio-legal strategies.will be held in Dublin in on the 4th of November 2000. The effect of the recently formed prochoice umbrella organization . It was not until the X case issued a rallying call that any larger scale pro-choice lobby emerged. Women's 315 Although the existence of the Right to Choose Group in the early 1980s illustrates that pro-choice politics had gained a foothold in Irish society. . The pro-life amendment campaign did provoke more pro-choice and feminist activity through the Anti-Amendment Campaign.remains to be seen. 315 The second Voices of Reason Conference. But already its attempts both to create a dialogue which moves beyond oppositional pro-life/pro-choice dichotomies and to develop a broad base of support for abortion-seeking women indicate a new dynamic in the pro-choice movement. 223 Reproduced with permission of the copyright owner. A history of Youth Defence itself. The perseverance of particular individuals and groups as they struggled to provide assistance to women and to bring abortion into the public sphere in the absence of any broader support and in a climate which demonized their actions deserves documentation. it was a marginalized foothold. The relative weakness of pro-choice groups has also had a significant impact on abortion politics and merits further investigation. like the X case. its representations of women may jar against those of the law. The issue is not the omission of women from law. but also the smaller scale studies which preceded it. has performed a valuable function in bringing women's responses to the dilemma of unplanned pregnancy into the public arena. The actual practice of Irish women pursuing terminations abroad has haunted anti-abortion policy and demanded legal recognition. much more work remains to be done in deciphering the relationship between abortion practice and abortion politics. the interpretation of the right to life of the 'unborn' has produced particular legal representations of Irish womanhood. Although the needs of abortion-seeking women have failed so far to be substantially accommodated by the Irish legal system. Further reproduction prohibited without permission. Sometimes she is an instrument of reproduction. but to confront and diversify the conception of womanhood that informs abortion law. but the limitations of the roles abortion law has assigned women. As feminism struggles to seek legal accommodation of women's reproductive needs. the capacity of the abortion debate to proceed without engaging with women as participants in that debate. As this study has shown. women are represented through Irish abortion law. and others still she is not competent to mother.The Women and Crisis Pregnancy Report in particular. The task therefore is not so much to seek the legal inclusion of women's interests. . Identifying the understanding of women's roles that informs the 224 Reproduced with permission of the copyright owner. Although the Report has made a start at introducing women's pursuit of abortion to the public debate. has been all too obvious. othertimes she is an iimocent who does not deserve to be pregnant. Over the years. but also because of its analysis of the legal representation of womanhood. I have shown how the inclusion of a reference to the 'mother's equal right to life' in Article 40 3 3. The very tool which has been used to construct womanhood as the means of national reproduction .could provide a resource for feminist legal strategy. Even where a woman's rights are formally recognized they may be judicially ignored.the public interest in fetal life .law both clarifies the challenge with which feminism is faced and the resources with which feminism can engage in seeking to mould legal images of women. Therefore. this study of Irish abortion law has a contribution to make to socio-legal knowledge not only because of the uniqueness of the constitutional recognition of a fetal right to life. among other things. Further reproduction prohibited without permission. This strategy has the merit of collapsing the opposition between 'women' and 'public' as well as simply providing another form of argument. . by explicating the way the judges reasoned their assertion of a woman's right to abortion in the X and C cases. At the same time as this limitation has been revealed however. By focusing on how the courts have actually justified their treatment of women I have tried to unearth rationales which once identified could also be adapted for feminist purposes. I have revealed both the advantage and disadvantage 225 Reproduced with permission of the copyright owner. did not prevent the legal construction of woman as the instrument of reproduction. The possibility exists for feminism to insist on the accommodation of a public interest in women's lives. Similarly. Thus the conception of woman as rightsholder has not facilitated accommodation of women's needs in this particular context. so has the potential of arguing in terms of a public interest in providing for women's needs. just as much as it has the potential for enabling the assertion of rights. the concept of a relational right had the actual benefit of facilitating the recognition of a woman's right to abortion in these instances. rather than on the recognition of an individual's right per se. Relational feminism has also argued at a more theoretical level that the concept of a relational right is an improvement on the concept of an individual right.of the conception of this right in relational rather than individual terms. account is taken of the way in which relationships and social context enable or disable a person's ability to act out a given right. and second of suggesting that her relationships and circumstances are such that support exercise of her decision to terminate her pregnancy. By locating a person's right in the relational context in which he or she operates rather than in his or her individual personhood. The disadvantage of X's and C's right being construed in relational terms is the implication that they would not have had a right to abortion if their relationships and circumstances were other than those deemed supportive of such a right. The advantage of this approach is thought to be that it focuses attention on the need to create enabling circumstances for rights use. . In other words. whether or not that individual is in a position to benefit from having that right. the argument goes. The identification of abortion as a relational right has the merit first of enabling recognition of a woman's interest in accessing abortion. Further reproduction prohibited without permission. accommodation of relational context has the potential to be used as a rationale for denying a right. On the one hand. 226 Reproduced with permission of the copyright owner. socio-legal and feminist critique. it argues for an appreciation of the material significance of symbolic representations of womanhood. This tension has been produced as the pro-life amendment extends liberal rights discourse to the fetus at the same time as it denies women reproductive rights. this dissertation moves beyond explaining how Article 40 3 3 was interpreted to clarifying how post-coloniality has been one of the significant social influences on its evolution. The constitutional form shapes the social constructions of abortion. The hybridity of rights which are interpreted first as public and later as relational interests is the legal expression of the post-colonial concerns which were articulated in the social sphere by representing abortion as a colonial practice. Therefore. Formal constitutional rights betray a tension between a liberal democratic tradition and an authoritarian nationalist one. this dissertation contributes to post-colonial.My critique of this interpretation of rights in terms of public and relational interests also reveals the hybridity of constitutional rights in an Irish context. As an exercise in feminist critique. At a theoretical level. The understanding of abortion as a social practice which is supposedly responsible either for the destruction of the indigenous race or indigenous 'Catholic' values justifies a legal response which protects fetal life as a national interest. The pro life amendment draws these two aspects together as it works symbolically to mark Ireland's 227 . Ireland is anomalous among Western nation states in its refusal to liberalize abortion access. But its post-colonial hybridity lies in its identification of fetal constitutional rights as the means of reasserting national authority. Its prohibition of abortion has worked both as a normative and as an empirical constraint on women. as a historical casestudy. Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. . as was evident in the X and C cases. Feminist theorizing about abortion has to anticipate the power of abortion as metaphor in a particular cultural context. But the practice of having to evade the jurisdictional reach of Article 40 3 3 has either disadvantaged Irish women by causing them to present for termination later in their pregnancies. or by not being available to the most vulnerable of women. Revealing how Article 40 3 3 has been constructed as a symbol of Irish national reproduction contributes to feminist theory by teasing out the relationship between biological and cultural reproduction. This simply means that they 228 .difference at the same time as it prescribes maternal sacrifice for Irish women. The Irish abortion case study contradicts the pattern of liberalization and medicalization of abortion common to much of Western Europe and North America. and so demands a particular explanation from feminist critique. While the struggle for abortion rights has often assumed centre stage in feminist arguments for women's freedom and equality. The contribution which this dissertation makes to socio-legal theory revolves mostly around its retrieval and development of legal form analysis. Socio-legal scholars are committed to the study of law as an aspect of social relations. The evidence that Irish women have continued to access abortion in spite of the constitutional constraints might cause some to dismiss the 'pro-life' amendment as little more than a gesture towards 'pro-life' politics. the Irish feminist movement has historically felt hesitant about publicly adopting a pro-choice stance. The way in which abortion has operated as a postcolonial symbol in the Irish context has disabled to a great extent feminist arguments for a woman's right to fertility control. . Further reproduction prohibited without permission.Reproduced with permission of the copyright owner. But his exclusive focus on the exchange process of a specific historical form of capitalism as the ground from which one took an external perspective limited the application of his conception of legal form. as the creator of the property rights bearing subject. As Pashukanis conceived of it. that I do not believe this approach necessitates abandoning basic legal methods. legal form analysis involved taking the concepts and methods particular to law and revealing how they related to the needs of the social system in which law operated. Further reproduction prohibited without permission. But the legal fonn of the pro-life amendment also conditions the 229 Reproduced with permission of the copyright owner. . I argued that one can adapt his method however to redefine legal form generally as that which identifies a subject as having rational control over an object. the legal form of the pro-life amendment owes its existence to the social need to establish the nation as having authority over the reproduction of its people. From an external perspective.think it is necessary to go beyond the methods of caselaw analysis and statutory interpretation in order to really understand legal phenomena. He thought you had to combine both internal and external perspectives. reproduction serves well as an object whose control produces the nation as subject. Clearly I am in broad agreement with this approach to legal studies. as in this instance. however. It should be equally clear. It is difficult to understand law itself unless you understand how it responds to and intervenes upon social dilemmas. When the systemic conditions in which this happens are post-colonial and patriarchal. By taking legal form seriously I believe legal scholarship can abandon the external/internal dichotomy and develop a more nuanced analysis of the relationship between legal content and social content. and by showing how law reacts to and intervenes upon social processes.interpretations given its content. I also argued that as a historical category of critique. Legal form analysis therefore contributes to socio-legal theory by showing how law itself reveals aspects of social relations. Further reproduction prohibited without permission. From an internal perspective. Judicial interpretation has been motivated by a perceived need to represent the fetal right to life as something which must not be violated because of its central value to the Irish people. This kind of post-colonial critique is adequate to the task of explaining how the British colonization of Ireland is one aspect of the historical condition which produced a perceived need to consolidate national authority and authenticity by constitutionalizing the 230 Reproduced with permission of the copyright owner. the rights provisions of Article 40 3 3 were not interpreted as rights provisions usually are in legal analysis. rather than by the task of balancing rights conflicts. As the application of basic legal method such as caselaw analysis reveals this. . the post-colonial must accommodate changes in its own object of analysis. In this way post-colonial critique can acknowledge colonialism as part of the background conditions of its existence while still maintaining the capacity to engage in a normative critique of the ways in which colonial history is mobilized to good and bad ends in the aftermath of colonialism's formal demise. and for a conception of the post-colonial which regards itself as a historical product of the process of decolonization. it simultaneously demands an explanation. In applying post-colonial theory to the analysis of Irish abortion law and politics I argued against a conception of the post-colonial which identifies itself as a critique of global processes of domination. 231 . Post-colonial critique also ought to be able to identify changes in the way colonial history is put to work in post-colonial conditions. Only a theoretical conception of the post-colonial which acknowledges its historical roots as well as its adaptation to changing historical conditions can adequately explain changes in the social and legal expressions of post-colonial effects since the launch of the Pro-Life Amendment Campaign.right to life of the 'unborn'. • the use of the constitution as a product and symbol ofpostcoloniality. There were four ways in which such effects were revealed: • the post-colonial rationales adopted by campaign organizations engaged in legal reform efforts. • the legal interpretation of the right to life of the 'unborn' as a marker of cultural authenticity. And it still allows feminists to be critical of the way abortion is constructed as a colonial tool by the Catholic Right. Post-colonial critique ought to be able to differentiate between Irish identification with Catholicism as resistance to English imperialism in colonial conditions. These legal expressions of post-coloniality also feed back into the development of a post-colonial critique which recognises that postcoloniality is a historical product which changes as subjects engage with it. and Irish identification with Catholicism as nationalist majoritarianism in post-colonial conditions. As well as refining and developing a post-colonial theoretical framework. • the legal expression of the right to life of the 'unborn' as a post-colonial hybrid. The identification of the various ways in which law can be a post-colonial object contributes to post-colonial critique by expanding the understanding of the sorts of cultural products which can be investigated as evidence. my study contributes to post-colonial critique by identifying some of the ways in which law can reveal post-colonial effects. .Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. so is the opportunity to develop arguments which undermine the ways in which that form uses colonial history. As the resources which post-coloniallegal form has put to use are revealed. the fact that post-coloniallegal form has accommodated changes means that changes which accommodate feminist aspirations are also possible. or women's reproductive capacity. the challenge remains to persuade the Irish people that there are more appropriate ways to act out their sovereignty that to constitutionally protect fetal life. But it does provide some clues as to the obstacles that remain for pro-choice feminism during the current reform process. Similarly. 232 . to justify such an extreme pronatalist policy.Recognizing abortion law as a post-coloniallegal form which has constrained women's lives does not in itself of course offer any solutions to the problem. Ultimately. 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Women in Society: Interdisciplinmy Essays.).). in R. 1994). Caudill and Steven Jay Gold. in her Law. Rose. Women and Abortion Law (London: Pluto Press. "The Woman of Legal Discourse". Carol. and Abortion (New York: Routledge. 248 . Smart. Margaret Jane. (London. "Feminist Thought and Reproductive Control: the State and the Right to Choose". "Notes on the Postcolonial".Radin. Institute of Sociology. 1981). Laurie. NJ: Humanities Press. Schrage. Maurice (ed. Reid. (1992) 31/32 Social Text 99113. 1996) 109-130. 1995) 111-139. 1981). "Market Inalienability" (1987) 100 Harvard Law Review 1849. Madeline. 1989). R. Shohat. Sargent. eds. Crime and Sexuality: Essays in Feminism (London: Sage. Lydia (ed. Sally.. The Impact of Community Law on the Irish Constitution (Dublin: Irish Centre for European Law. Denise. Sheldon.. Sweden. 1992). Moral Dilemmas of Feminism: Prostitution. Adultery. Erotic Welfare: Sexual Theory and Politics in the Age of an Epidemic (New York: Routledge. in David S. 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