Ruth Fletcher Dissertation Ireland Abortion

Post-colonial legal forms: A feminist critique of Irish abortion law
Fletcher, Ruth
ProQuest Dissertations and Theses; 2001; ProQuest Dissertations & Theses (PQDT)
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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
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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
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.
------------------------------------------------------------------
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
Leslie Green
November 2000
Supervisor
Recommendation concurred in by the following
B. Cossman
Examining Committee
Ovll @
D. K.hayatt
December 2000
w ----------------------------------------------------------------
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. The 1992 court order which stopped X, a
fourteen year old suicidal rape victim, 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, 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 addressed post-colonial anxiety by
bringing reproduction under the nation's control. 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, and, post-X, make a relational paternal interest out of
the pregnant woman's equal right to life.
I make this argument by showing how post-coloniality has operated as a cultural
motivation for abortion law in certain social discourses. In doing so I develop a theoretical
conception of post-coloniality as a historical object which has effects on societies which
iv
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. I argue that legal form creates legal subjects by instilling in them rational control
over particular objects. As a post-colonial legal form, 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. 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. 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, but by interpreting it as a relational right rather
than as an individual right.
Acknowledgments
Thanks to Mary Condon, Lea Dooley, and Eric Tucker for their patience and
encouragement during my time as a graduate student at Osgoode. LOJTaine Code, Didi
Khayatt, Liz Sheehy and Gina Feldberg taught me what an ideal supervisory and examining
committee should be. Special thanks to Brenda Cossman, Shelley Gavigan and Les Green
whose distinct contributions to the development of my research have been invaluable.
Many others contributed to the rich intellectual environment at Osgoode, and more
generally at York, which I feel fortunate to have participated in. My new colleagues at
Keele have generously supported me over the last hurdles; 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.
VI
Table of Contents
1. INTRODUCTION ......................................................................................................................................... I
2. LOCATING POST-COLONIALITY: THE SOCIAL FRAGMENTS BEHIND IRISH ABORTION

LAW.......................................................................................................................................................... 25
THE HISTORICAL POST-COLONIAL.................................................................................................................28
From decolonization to post-coloniality......................................................................................................35

Not just the state.................................................................................................................................................37
Not just class................................................................................................................................................ 39
THE HYBRID POST-COLONIAL........................................................................................................................41
THE GLOBAL POST-COLONIAL.......................................................................................................................49
POST-COLONIALITY AS A HISTORICAL OBJECT...................................................................................................56
POST-COLONIALITY AS A MOTIVATION FOR ABORTION POLITICS...............................................................58
3. LEGAL FORM MATTERS: CONTRADICTION AND CHANGE IN THE CONSTITUTIONAL

STATUS OF ABORTION
79
FROM LAW AS A COMMODITY FORM..............................................................................................................86
Abortion and the commodity form theory.........................................................................................................92

Changing legalform..................................................................................................................................... 98
Gendering legalform.................................................................................................................................. 105
...TO LAW AS AN OBJECT FORM...................................................................................................................113
...OF PUBLIC REPRODUCTION......................................................................................................................118
Law as sovereign command..............................................................................................................................118

Law as micro power....................................................................................................................................126
4. POST-COLONIAL LEGAL FORM, ABSOLUTIST LEGAL CONTENT: THE FETAL RIGHT TO

LIFE AS AN ABSOLUTE PUBLIC INTEREST..................................................................................133
A FETUS'S ABSOLUTE RIGHT TO LIFE.................................................................................................137
Disregard for
Disregard for
Disregard for
Disregard for
Disregard for
Disregard for
Article 40 33's qualifying clauses.......................................................................................138

thefactual context of pregnancy.........................................................................................141
restrictions on the ordinal)' right to life..............................................................................143
the impact of other constitutional rights.............................................................................147
a public interest in womanhood; assertion of a public interest in thefetus........................151
other relevant law...........................................................................................................155
SPUC AS THE GUARDIAN OF THE PUBLIC INTEREST IN FETAL LIFE...........................................................159
A NEO-COLONIAL THREAT? THE EXCLUSION OF EUROPEAN COMMUNITY LAW..............................................166
5. POST-COLONIAL LEGAL FORM, RELATIONAL LEGAL CONTENT: THE WOMAN'S RIGHT

TO LIFE AS A RELATIONAL PATERNAL INTEREST
179
A WOMAN'SRELATIONALRIGHTTOABORTION.................................................................................183
Absolutism in dissen/......................................................................................................................................... 185

Rights holder by virtue of relationships......................................................................................................190
Rightsho/der as an innocent victim deserving mercy.................................................................................193
Rightsholder in need of paternal protection....................................................................................................196
PRO-CHOICE SERVICES AS THE EXPLOITERS OF WOMEN................................................................................199
A COLONIAL THREAT? STATE SUPPORT FOR ABORTION............................................................................................. 210
6. CONCLUSION...................................................................................................................................... 217
BIDLIOGRAPHY.......................................................................................................................................... 233
vii
1. Introduction
Almost twenty years after the 1983 constitutional amendment to incorporate the
right to life of the 'unborn', Ireland faces the possibility of a fifth constitutional referendum
on the issue of abortion. 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, 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. As a result of
1
the Supreme Court decision in Attorney General v. X, the current constitutional position
is
that a woman has a right to abortion where her life is at real and substantial risk. However,
there is no legislative guidance as to how it should be decided when a real and substantial
risk exists. The need for legal clarification was driven home when the 1992 X case was
followed by another disturbing case in 1997, 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.
Yet as the Green Paper on Abortion indicates the likelihood of another
referendum, 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'.
1
Attorney General v. X and others [1992] 1 I.R. 1; hereinafter referred to as the X case, as it is
commonly referred to in Ireland.
2
A. and B. v. Eastern Health Board, Distrinct Judge Fahy and C., [1998] I I.R. 465.
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. See: "Pro-lifers press for new
abortion referendum", Sunday Independent 9 July 2000.
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. Before the X case, 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, which provides:
The State acknowledges the right to life of the unborn, and with due regard to the
equal right to life of the mother, guarantees in its laws to respect, and, as far as
practicable, by its laws to defend and vindicate that right.
Women addressed their need for abortion by travelling to Britain to avail of private abortion
services there, thus relieving both law and medicine of any pressure to
accommodate
abortion needs. 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, that the implications of the vague constitutional position crystallized. The lack of
legal clarity was again emphasized when the Eastern Health Board ended up in court
because of the uncertainty about how it, as a State agency, should balance its legal
obligation to protect fetal life with its legal obligation to provide for the medical treatment
of children in its care. 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. 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.
2
The reform process itself, as well as the circumstances which brought it into
being, is evidence of abortion's strong cultural resonance in Irish society. Now that the
most privileged means of expressing abortion's cultural importance
has
shifted
momentarily from the legal stage to the political stage, the intensity of political
participation serves as further evidence of abortion's public prominence. 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, chaired by then Health Minister
Brian Cowen, which was appointed to formulate a Green Paper. The Working Group
received over 10,000 submissions, the vast majority of which were not only antiabortion but
4
requested an absolute ban on abortion. Petitions containing 36,500 signatures, all of which
sought a complete ban on abortion, were also submitted.
Feminist and pro-choice submissions were also received, as were submissions
5
from political parties and reproductive health organisations. Although groups of doctors,
nurses and counsellors were represented among those who participated in the consultation
process,
the dearth of submissions from bodies representing health care professionals, such as the
Medical Council or the Institute of Obstetrics and Gynaecology, was noted. The Green
Paper itself was published in September 1999, a year later than expected and eighteen
months after the deadline for submissions. Responses to the Green Paper were requested
and the all party Oireachtas (Parliamentary) Committee on the Constitution is to hold
Interdepartmental Working Group on Abortion, Green Paper on Abortion (Dublin: Department of an

Taoiseach, 1999), at paragraph 5.02, available at: http://www.irlgov.ie/taoiseach/ publication/ default.htm. A
'Green Paper' is a discussion document and signals the beginning of a legal reform initiative; a 'White Paper'
is a statement of policy and provides the rationale for proposed legal reforms.
5
See Appendix 4, ibid., for a list of the groups who made submissions.
public hearings to which invited parties will make representations during May to
July
6
2000. The Taoiseach (Prime Minister) has reported that the Green Paper received 105,000
responses most of which preferred option one: a complete ban on abortion.
Of the
105,000, 90,000 were petition signatures, 10,000 were circular letters, and there were 3,898
submissions from individuals or organisations. The All Party Oireachtas (Parliamentary)
Committee on the Constitution, to whom the Green Paper was referred, is not due to issue
its report until October 2000.
The Green Paper made no explicit recommendations as to how abortion reform
should be approached, rather it outlined and discussed seven possible approaches to the
issue:
1. An absolute constitutional ban on abortion;

2. An amendment of the constitutional provisions so as to restrict the application of the
X
case;
3. The retention of the status
quo;
4. The retention of the constitutional status quo with legislative restatement of
the prohibition on abortion;
5. Legislation to regulate abortion in circumstances defined by the X
case;
6. A reversion to the position as it pertained prior to
1983;
7. Permitting abortion on grounds beyond those specified in the X
8
case.
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. Option one proposes an absolute ban, 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),
As this process has not concluded as I write, I am not in a position to review its implications for
the purposes of this dissertation.

7
Dail (Lower House orParliament) Debates, Vol. 513, No.4, 8 February
2000.
8Green Paper, supra note 4. at paragraph
7.16.
4
might justify abortion. Although there is a political commitment to reform and to the
clarification of the circumstances in which abortion is permitted, it is extremely doubtful
that the legislature will take a liberal stand against popular opinion which
dominantly
desires a restrictive abortion law. 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.
Even though liberal abortion reform is unlikely, the slow shift away from an
absolutist negative attitude to abortion is significant. This dissertation is a response to the
opportunity for reflection that such a change provides. Now that the policy-makers have at
least recognized that they cannot simply prohibit abortion and ignore the consequences, the
time is ripe for taking a step back from the process of abortion reform in order to pose some
critical questions about it.
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, 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
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
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
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
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
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.
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
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
shows, 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. To
analyse, and therefore be able to change, the conditions which must advantage some as they
disadvantage others along gender divides, feminists need to combine the why questions
with the how questions. Whether and why women are restricted, or conversely liberated,
by particular kinds of abortion access is better answered if feminists also set out to answer
how and when such restrictions, and liberations, 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.
I understand this, perhaps oversimplified, 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. 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. That concern is
materialist because it emerges out of the concrete conditions of women's lived experiences,
and applies to the actual processes through which law and women's lives affect each other.
It is post-structuralist because my critique takes the representations through which these

processes work seriously. 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.
II
The debate which has emerged out of Nancy Fraser's drawing of an analytical
distinction
example.
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 to transform the economic practices which deny women the
material resources they need. 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. 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.
23 See Nancy Fraser, Justice Interruptus (New York: Routledge, 1997). When an earlier version of the
first chapter of this book was published, it sparked a lively debate over tl1e recognition/redistribution
distinction; see "From Redistribution to Recognition? Dilemmas of Justice in a Postsocialist Age", ( 1995)
212 New Left Review 68-93; Judith Butler, "Merely Cultural", (1998) 227 New Left Review 33-44; Nancy
Fraser, "Heterosexism, Misrecognition and Capitalism: A Response to Judith Butler", (1998) 228 New Left
Review 140-150; Iris Marion Young, "Unruly Categories: A Critique ofNancy Fraser's Dual Systems
Theory", (1997) 222 New Left Review 147-160; Nancy Fraser, "A Rejoinder to Iris Young", (1997) 223
New Left Review. See Susan Boyd, "Fan1ily, Law, and Sexuality: Feminist Engagements", (1999) 8(3)
Social and
Legal Studies 369-390, for an engagement with Fraser and Butler in a critique of gay and lesbian struggles for
legal recognition of 'spousal relationships'. See furtller: Nancy Fraser and Kevin Olson, Adding Insult to
Injury: Social Justice and the Politics of Recognition, (London: Verso, 1999), and Nancy Fraser, "Social
Justice in the Age ofldentity Politics: Redistribution, Recognition and Participation", Gretlle Peterson ed.,
The Tanner Lectures on Human Values, vol. 19 (Salt Lake City: 1998) 1-67.
12
Feminists criticize the legal restriction of access to abortion for both economic
and cultural reasons, in Fraser's terms. As Rosalind Petchesky has clarified, feminist
arguments
for women's reproductive freedom generally have two dimensions.
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. 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. In the second instance, the feminist
argument for women's reproductive freedom derives from the acknowledgement of
women's social position, rather than from their individual interests. Given that women are
the most affected by pregnancy under a social division of labour which gives women
primary responsibility for child care, feminists argue that women should be the ones who
decide whether or not to have children.
Therefore, 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, its practice has both the
aspects of recognition and of redistribution. 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, supra note 20.
authority
over
their
reproductive
capacities,
and
the
13
economic regime which makes women primarily responsible for the labour of social
reproduction. My feminist critique seeks to explain how Irish abortion law has come to
represent the woman as subservient to her fetus, at the same time as it provides an
explanation as to why that representation is dominant.
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, my own
development of a feminist critique of Irish abortion law was experiencing the same
tensions. 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. On the one hand I felt that a feminist
critique of Irish abortion law hardly had to be justified, it was so obviously patriarchal in its
manipulation of women to the ends of reproduction. And on the other hand, I knew that it
was necessary to show how women's legal interests had been underrepresented, if not
omitted, in the enforcement of Article 40 3 3 if feminist critiques were to be taken seriously
by Irish policy makers.
It was through this work, the close analysis of the controversial case-law which
forms the basis of Chapters Four and Five, 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. The construction of an absolute fetal right to life, and post X the recognition of
14
a relational woman's right to abortion, were not simply the result of a patriarchal interest in
tying women to the task of reproduction. The protection of patriarchal interests might have
required pro-natalism, but not the sort of absolutism which would deny women any rights
rather than allow abortion, nor the sort of relational rights that the courts later recognise as
inhering in a woman by virtue of her dependent status. There had to be some further
explanation for the extremes to which abortion law was prepared to go. In other words, 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.
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, i.e. its post-colonial legal form, also evolved as my response to what I
perceived to be missing in the literature on Irish abortion law and politics generally.
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.
25
Legal scholars had
explained the peculiarities and traced the development of doctrine revolving around Article
40 3
3.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. 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.),
The Abortion Papers-Ireland (Dublin: Attic Press, 1992).
26 The leading work in this area is: Kingston and Whelan, supra note 17. See also: John Quinlan, "The
Right
to Life of the Unborn- An Assessment of the Eighth Amendment to the Constitution", (1984) Brigham
Young University Law Review 371-402; Noel Whitty, "Law and the Regulation of Reproduction in Ireland:
1922-92", (1993) 43 University ofToronto LawJourna/851-888.
15
constitutional parameters, but did not. 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. 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.
One of the most particular aspects about Irish abortion law is the relatively
recent nature of its public prominence. Abortion came to occupy a central position on the
political stage only from the early 1980s on, and as a result of a campaign to prevent its
legalization. Up to this point, abortion was regulated through the
1861 Offences
against the Person

27
Act,
over
which was adopted when Ireland was part of the United Kingdom, and carried
into the law of the Irish Free State in 1922 under the Free State Constitution, and later
under the 1937 Constitution. The 1861 Act was part of a wider pattern of abortion
criminalization and medical professionalization in the late nineteenth century. Prohibiting
what had been the acceptable practice of aborting pregnancies prior to quickening - the
fourth or fifth month of pregnancy when the foetus became 'ensouled'- was one means by
which female midwives were marginalized and separated from their female patients. It was
only in 1869 that the Roman Catholic Church dropped the reference to the 'ensouled' foetus
in the provisions on excommunication for abortion, and in 1917 that it provided for the
excommunication of the pregnant woman who aborted.
27
See infra at 141 for a discussion of the relevant

provisions.
16
The young independent Irish Free State saw no reason to refrain from this trend in
restricting women's reproductive control. In 1935, a Bill to criminalize contraception was
passed by the Dail (Lower House of Parliament).
28
Section 17 prohibited the
sale,
advertising and importation of contraceptives. A lone voice of objection was heard in the
Dail. Dr. Rowlette TD (MP) warned that the Bill could lead to increased criminal
9
infanticide and abortion.Z Rose reports that there were eleven investigations undertaken
into illegal abortions by the time the Bill became law.
30
However, after the Bourne
31
decision in Britain in 1937, which interpreted the 1861 Act as permitting therapeutic
abortion, prosecutions for illegal abortions dropped sharply. As women's travel was
restricted during the Second World War however, backstreet abortion increased along with
the rate of non-marital births. Jackson reports that non-marital births then termed
illegitimate accounted for 3.93% of the live birth rate, the highest proportion ever recorded
between 1864 and 1977.
Irish
32
Since the adoption of the 1967 Abortion Act in Britain,
women have travelled there and availed of private abortion services rather than use
backstreet abortion services.
The lack of infonnation about and access to fertility control methods did not stop
Irish women from trying to avoid unwanted pregnancy. Michael Solomon, gynaecologist
28 Which became: Criminal Law (Amendment) Act, 1935, Acts of the Oireachtas,
no. 6.
29 Dai1
Reports
1935 A.
30 R.S. Rose, An Outline of Fertility Control Focussing on the Element of Abortion in the Republic of
Ireland,
PhD thesis, unpublished, Institute of Sociology, University ofStockho1m, Sweden.
31 R. v. Bourne [1938] 3 AllER
615.
32 Pauline Conroy Jackson, "Outside the Jurisdiction: Irish Women seeking Abortion", in Ailbhe
Smyth,
supra note 25, 119-137. See also: Pauline Jackson, "Abortion Trials and Tribulations", manuscript on file in
Trinity College Dublin's library, and with author.
17
and co-founder of the first family planning clinic in Ireland, tells an interesting anecdote
which illustrates the point: "Desperation bred ingenuity. As no mechanical means of
contraception were available, people improvised. While attending one birth, a colleague
came across the strange phenomenon of a baby born with the top of a Guinness bottle stuck
on its head. 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, and family planning clinics began to establish
themselves. 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. In 1968, the Family
Planning Study Circle was founded and in February 1969 its members opened the Fertility
Guidance Clinic in Dublin, the first private clinic to offer contraceptive advice. 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. But as
political demands for legalized contraception grew, abortion remained taboo. Feminists
and fertility control advocates felt that to include abortion in their list of demands would be
to invite public rejection.
However, if feminists were reluctant to publicly draw a link between abortion and
contraception, conservatives were not.
They became even less so when the Supreme
Court
33
Michael Solomons, Pro Life? The Irish Question (Dublin: Lilliput Press, 1992)
at 6.
34 See Ailbhe Smyth, "The Contemporary Women's Movement in the Republic oflreland" (1988)
11(4)
Women's Studies International Forum 331-341; June Levine, Sisters: The Personal Story of an Irish
Feminist
(Dublin: Ward River Press, 1982).
18
interpreted the Constitution as protecting a right to marital privacy which included the right
5
to use contraception without the State's interference. In McGee v. 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. Therefore, the
stipulation in section 17 of the Criminal Law (Amendment) Act, 1935, which prohibited the
importation of contraceptives for personal use was found unconstitutional because it
violated Mrs. McGee's right to marital privacy. The McGee decision provoked a hostile
reaction from conservatives not simply because it paved the way for the legalization
of
contraception,
37
but also because of its recognition of a constitutional right to privacy, albeit
marital privacy. Conservatives argued that the right to privacy could enable the legalization
of abortion, especially given the precedent of Roe v. Wade,
38
where the US Supreme Court
had determined that the unspecified constitutional right to privacy, first recognized in a case
concerning contraception, gave Jane Roe a right to abortion.
35
39
[1974] I.R. 284. For a feminist critique of this decision, see Leo Flynn, "Missing Mary McGee:
The Narration of Woman in Constitutional Adjudication", in Gerard Quinn, Attracta Ingram and
Stephen Livingstone (eds.), Justice and Legal Theory in Ireland (Dublin: Oak Tree Press, 1995), 91106.
36 Which provides "The State guarantees in its Jaws to respect, and, as far as practicable, by its Jaws to
defend
and vindicate the personal rights of the citizen".
37 The Health (Family Planning) Act, 1979, provided that all contraceptives, including condoms and
spermicides, would be available only on prescription from a doctor. Before prescribing contraception, the
doctor had to ensure that "the person required the contraceptives for the purpose, bona fide, of family
planning or for adequate medical reasons and in appropriate circumstances". In justifying the restrictive
nature of the Act, Haughey used a now infamous phrase: "This Bill seeks to provide an Irish solution to
an Irish problem. I have not regarded it as necessary that we should conform to the position obtaining in
any other country." See Emily O'Reilly, Masterminds of the Right, (Dublin: Attic Press, 1992) at 51,
emphasis added. As a result of the Health (Family Planning) (Amendment) Act, 1992, condoms can now
be made available to anyone over 17.
38
(1973)410US 113.
39
See in particular: William Binchy, "Marital Privacy and Family Law: A reply to Mr. O'Reilly", (1977)
66(264) Studies: An Irish Quarterly Review 330; replying to James O'Reilly, "Marital Privacy and
Family Law", (1977) 66(261) Studies: An Irish Quarterly Review 8. See also William Binchy, "The
Need for a Constitutional Amendment", in Flannery, supra note 19, 116-127.
19
Pro-life activists began to organize during the late 1970s to prevent, as they saw
it, abortion becoming legally permitted in Ireland. Their chosen method for doing so was
by way of constitutional amendment to recognise the right to life of the 'unborn'. As
John O'Reilly, 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. What is
proposed here is to take a positive stand to pre-empt the abortionists ... Attack is the
best form of defense. The alternative would have been to wait and watch the
abortion lobby
erode our laws by court cases and private members'
40
Bills...
The PLAC held its founding conference in January 1981 in Dublin, 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." 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). By June 1982, each of the main Protestant Churches in Ireland Anglican, Presbyterian, and Methodist - had issued official statements opposing the idea of
a 'pro-life' amendment being enshrined in the Constitution.
The AAC was officially launched in April 1982. A diverse group of feminists,
socialists, and liberals, the AAC raised five main objections to the pro-life amendment:
the amendment would do nothing to solved the problem of unwanted

pregnancies;
40
Tom Hesketh, The Second Partitioning of Ireland: The Abortion Referendum of 1983, (Dublin: Brandsma
Books, 1990) at 4-6.
20
the amendment allowed for no exceptions even in cases where pregnancy severely
threatened a woman's health, or in cases of rape or incest;
e the amendment sought to enshrine in the Constitution the teaching of one religious
denomination;
the amendment would impede further public discussion and possible legislation on
abortion;
that at a time of severe unemployment and when one third of the population was
living at or below the poverty line, the referendum would be an irresponsible waste of
public funds.
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, with due regard to the equal right to life of
the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend
and vindicate that right." 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.
Part of what makes Irish abortion law so distinct, therefore, is its recent
constitutional development. The adoption of a pro-life amendment at the behest of
conservatives and in a context where abortion itself was already criminal, requires
explanation. In this dissertation the explanation I provide is that the pro-life constitutional
amendment is a post-colonial legal form. 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. The manner in which post-colonial
legal form attributes content to abortion law has changed in the aftermath of the
constitutional amendment, however. First, the pro-life amendment became interpreted as
21
bestowing absolute legal protection on the fetal right to life. Second, in the wake of the
crisis produced when this interpretation is enforced against a fourteen year old rape victim,
Article 40 3 3 was interpreted as bestowing a relational right to abortion on extremely
victimized women. When this post-colonial legal form produces an absolute interest in
fetal life the pregnant woman is rendered a non-subject. When it produces a relational
interest in fetal life the pregnant woman's legal subjectivity is recognised, but only
paternalistically as a victim whose circumstances justify an accommodation of her claim to
abortion.
I make this argument by showing first of all in Chapter Two how post-coloniality
has operated as a cultural motivation for abortion 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. I argue that Ireland's history of English
colonization is part of the background objective conditions of abortion law, has effects on
the evolution of that law, and provides social material for agencies engaging with that law.
Post-coloniality works as a motivation for abortion law sometimes by constructing
Irishness as needing protection from infiltration by foreign pro-choice values, and at other
times by constructing Irishness as needing protection from exploitation by foreign pro
choice reproductive service providers.
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.
I hold that theorizing legal form helps to explain how social content
becomes
22
legal content, and the means by which public abortion discourses get translated into law.
Drawing on Pashukanis and Foucault, I argue that legal form creates legal subjects by
instilling in them rational control over particular objects. Thus for Pashukanis, law creates
property owners by bestowing property rights over objects. For Foucault, law creates
sovereigns by issuing commands over people and things. When, through a reading of
O'Brien, reproduction is identified as a set of social relations to which legal form responds
and acts upon, the potential for legal form to constitute the people as the subject in whom
control over reproduction is vested, becomes more transparent. As a post-colonial legal
form, 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.
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. In so doing the courts construct the fetal right to life as a marker
of Irish cultural authenticity. I reveal how the courts systematically failed to accommodate
constitutional interests which could be construed as compromising the fetal right to life,
how a public interest in fetal life was constructed and instilled in SPUC, and abortion law
was represented as an exclusively national issue through the rejection of European
Community law. In this way, 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. The interpretation of the fetal right to life as a public
23
interest reveals its post-colonial hybridity, but its expression as an absolute interest denies
that hybridity in the name of cultural authenticity. Chapter Five identifies how the post
colonial legal form manages the crisis produced by the X case by recognizing X's right to
life, but by interpreting it as a relational right rather than as an individual right. As the
Supreme Court's accommodation of X's right to abortion punctures the absolute fetal right
to life, national control of reproduction changes by making the assertion of X's right
contingent on her relationships and social circumstances. Once the fetal right to life loses
its claim to absolute enforcement its hybridity is revealed and its cultural authenticity
rebuked. In the C case the benevolent paternalism which had granted X a right to abortion
becomes more directive as the Court implies that C, a young traveller girl, ought not
become a mother.
Although reproductive control remains dominantly a national
responsibility, the post-colonial legal form now attributes content to abortion law not by
denying all women access to abortion, but by subjecting them to a quality control test.
As some of the trends and the changes in abortion law are revealed through this
dissertation, the task for Irish feminism as it attempts to influence the reform process,
hopefully, becomes clearer.
24
2. 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,
41
a perceived need which plays on Ireland's desire to distance itself from its
former colonizer, is one of the rationales behind the legal restriction of abortion in 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. 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. In the first part of this chapter, 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'. I argue that conceiving of post-coloniality as a historical object allows
41
Sometimes the opposition is constructed as Irish/English, other times it is constructed as Irish/British,

reflecting a slippage between English and British which is common to the history of British imperialism. See
further Catherine Hall, "Histories, Empires and the Post-Colonial Moment", in lain Chambers and Lidia Curti
(eds.), The Post-Colonial Question Common Skies, Divided Horizons (London: Routledge, 1996) 65-77, 67.
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", Robert Young, Colonial Desire, (London: Routledge, 1995) at 3. In Irish studies,
English and British are often used interchangably, while Scottish and Welsh are referred to as such rather than
as British. The Irish/British dichotomy is further complicated by the Northern Irish context where unionists
generally identify as British, and nationalists generally identify as Irish. Although citizens of Northern
Ireland might identify as British, citizens of Southern Ireland do not. For a thoughtful account of the
complexities and particularities of the British/Irish dyad, see Terry Eagleton, "Postcolonialism: The Case of
Ireland", in David Bennett (ed.), Multicultural States: Rethinking Difference and Identity (London:
Routledge, 1998).
25
us to theorize the effects of colonialism when it is no longer the dominant
historical
narrative without positing colonialism as a transhistorical force. In the second part of this
chapter, 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, and that the way
in which it does so is affected by the influence of other objective features of abortion law in
particular contexts, and by the character of the subjective interaction with abortion law in
those contexts.
This chapter seeks to locate post-coloniality by identifying how post-colonial
critique might contribute to a feminist explanation oflrish abortion law. Ireland's historical
experience of colonization cannot in itself explain why Irish abortion law is so restrictive,
but post-coloniality is a history that has been put to work in the effort to keep Ireland
abortion free. 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 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, though
the unresolved conflict over British presence in Northern Ireland operates as a constant
reminder of its colonial heritage. As Ella Shohat has argued, "the concept of the 'post
colonial' must be interrogated
and contextualized
historically, geopolitically, and
26
42
culturally" if it is to avoid obscuring the multiplicity of possible perspectives within

the 'post-colonial'. Post-colonial critique risks losing its critical impact if it operates at
too general a level. Locating post-coloniality within an Irish context has the provocative
effect of rupturing the general evocation of Europe as 'the' source of colonialism.
While European powers, such as the English,
the French, the Dutch, and the Portuguese, played key colonial roles, significant
differences between their processes of colonization, and between their relationships
with other European countries may be lost when 'Europe' is referred to generally as the
colonial power.
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, 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,
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. 45
42
43
Ella Shohat, "Notes on the Postcolonial", (1992) 31/32 Social Text 99-113 at Ill.
Bill Ashcroft, Gareth Griffiths, and Helen Tiffin, The Empire Writes Back: Theory and Practice in
Post Colonial Literatures, (London: Routledge, 1989).
44 Shohat, supra note 42, comments: "the authors expand the term 'post-colonial' to include all
English literary productions by societies affected by colonialism", at 102, referring to The Empire Writes
Back at 2. See also Aijaz Ahmad, "Postcolonialism: What's in a Name?", in Roman de Ia Campa, E. Ann
Kaplan, and Michael Sprinker (eds)., Late Imperial Culture (London: Verso, 1995) ll-32 at 14, and at 3031.
45 The authors justify their omission of Irish, Welsh, 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, their subsequent complicity in the British imperial enterprise makes it difficult for
colonized
peoples outside Britain to accept their identity as postcolonial", Ashcroft eta!, supra note 43 at 33. I agree
with Luke Gibbons when he says: "This remarkable statement (which does not appear to include Ireland as
27
Finally, 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. While I believe that postcoloniality is relevant to the critical theorization of Irish abortion law, 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.
We need,
rather, to combine this particular distinction with many others in order to produce an
integrated knowledge of a particular phase of global history". 46 Just as colonial and postcolonial sites have sometimes been construed too broadly, so too has the critical category of
the post-colonial occasionally been invoked too generally. I identify three different
conceptions of the post-colonial (historical, hybrid, and global) which inform the relevant
literature. Through a critique of these different conceptions of the post-colonial I develop
the idea of post-coloniality as a historical object.
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. As Aijaz Ahmad points out, contemporary
one ofthose countries 'outside Britain') only makes sense if one identifies the Irish historically with the
settler colony in Ireland, the ruling Anglo-Irish interest, thus erasing in the process the entire indigenous
population - a view closer in fact to Commonwealth than postcolonial literature", Luke Gibbons,
"Unapproved Roads: Ireland and Post-Colonial Identity", in his Transformations in Irish Culture (Cork:
Cork University Press, 1996) 171-180 at 174.
46 Ahmad, supra note 44, at 26.
28
47
post-colonial studies shows little evidence of engagement with these earlier debates. It is
useful therefore to recall the theoretical work that this conception of the post-colonial was
called to do. For one thing, 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. For another, 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.
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. His approach to
the post-colonial had two historical aspects to it. 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. And he focused on a historically
specific instance of decolonization in investigating the theoretical significance of the postcolonial moment in Pakistan and Bangladesh. Therefore, 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.
This sort of a theoretical approach has two main advantages for my purposes. It
insists on the need for theoretical categories to work through the challenges that
historical
47
48
Ibid.
1972) 34 New Left Review; reprinted in Kathleen Gough and Hari P. Shanna, eds., Imperialism and
South
Asia (New York: Monthly Review Press, 1973).
(
29
changes pose. Not only does this post-colonial critique expect that changes will occur in its
object of inquiry, it demands that its own critical apparatus account for and accommodate
such changes. Secondly, it accepts that theoretical knowledge such as Marxist knowledge
is never a complete knowledge, but rather is always in the process of learning. This process
of learning is best achieved by balancing the systematic application of theoretical concepts
against the empirical assessment of their relevance. In clarifying the theoretical framework
which my post-colonial critique should adopt then, I want to hold on to the advantages of
historical specificity and theoretical application
which
Alavi's post-colonial
analysis
displays, and try and overcome the disadvantages.

Some post-colonial critics have argued against a historical conception of the postcolonial.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. There are two problems with such objections in my
view. Firstly, it does not necessarily follow that the end of colonialism means the end of
colonialism's effects. The only historiographical approaches which might imply this are
chronological or idealist, neither of which are consistent with a critical theoretical
perspective.
A chronological account of events which marks the shift from the colonial to
the post-colonial simply lists such events (e.g. colonial conquest, nationalist uprising,
and acquisition of independence) in the order of their happening.
Because such a
descriptive
49
For example; Shohat, supra note 42: and Eve Darian-Smith, "Postcolonialism: A
Brieflntroduction", (1996) 5(3) Social and Legal Studies 291-299.
30
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. But this kind of
descriptive, 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.
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. One set of
concepts consists of those associated with assumed advances in intellectual history such as
post-structuralism etc., while the other consists of those associated with the aftennath of
particular historical events, post war, or post independence. 5 In one sense the post-colonial
is a relatively new addition to those concepts which work theoretically as a form of
explanation. In the other sense, the post-colonial is a descriptive marker of the aftermath of
a significant historical event. It is interesting that Shohat characterizes this tension as one
between philosophical and historical teleologies in the 'postcolonial'. In so doing she
equates history with descriptive chronology, as if working historically precluded working
philosophically or theoretically.
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, ibid. at I 0 I.
3I
The term 'postcolonial' carries with it the implication that colonialism is now a
matter of the past, undermining colonialism's economic, political, and cultural
deformative-traces in the present. The 'postcolonialism' inadvertly glosses over
the fact that global hegemony, even in the post-cold war era, persists in forms
other than overt colonial rule. As a signifier of a new historical epoch, the term
'postcolonial' when compared with neo-colonialism, comes equipped with little
evocation of contemporary power relations; it lacks a political content which can
account for the eighties and nineties style US militaristic involvements in Granada,
Panama, and Kuwait-Iraq, and for the symbiotic links between US political and
economic interests and those oflocal elites.5 1
However, 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. 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.
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. Idealist historiography represents history in terms of
eternal and unchanging abstract forces which erupt momentarily in particular places and
times. 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. 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, may be to assume an idealist representation of the historical
significance of the move to the 'post'. 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, ibid. at
105.
32
colonial because it cannot take account of the way in which actual conditions both give
rise to and change historical forces.
Some critics, such as Shohat, have suggested that neo-colonialism is to be preferred
over post-colonialism as a conceptual term. 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. 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. In the first place, 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, 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. 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. 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. If contemporary
capitalist exploitation of former colonies is to be categorized as neo-colonialism as Shohat
suggests, or as recolonization as Alexander and Mohanty propose,
52
without an explanation
52
M. Jacqui Alexander and Chandra Talpade Mohanty, "Introduction: Genealogies, Legacies,

Movements", of their Feminist genealogies, colonia/legacies, democratic futures (London: Routledge,
1997) at xvii.
33
of why particular practices are new fonns of colonialism, 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. The key to avoiding this idealist trap is
to theoretically account for the production of the distinction, as well as the connection,
between colonialism and neo-colonialism.
This task has been hampered by the conflation of imperialism and colonialism.
As Magdoff has clarified, while colonialism preceded the modem fonn of
imperialism, imperialism has outlasted decolonization.
53
The many varieties of colonialism
mean that it is impossible to claim that one model fits all. For the purposes of clarification,
however, 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). Imperialism on the other hand refers broadly to the
international relations of advanced capitalism. 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.
Thus neo- colonialism can be both
related to and distinguished from colonialism by defining it as an imperialist mechanism

in post-colonial conditions.
Imperialism itself has also changed
through these developments, a shift which is signified theoretically through the increasing
53
Harry Magdoff, "Imperialism without colonies", in R. Owen and B. Stucliffe (eds.), Studies in the
Themy of Imperialism, London: Longman, 1972) 143-169.
34
use of globalization as a framework in which to theorize the cultural and economic

relationships between different parts of the globe. As Stuart Hall has argued,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,
neo-colonial should not replace post-colonial, since each has a distinct role in the task of
explaining the complexity of international relations. While post-colonial captures the
effects of formally ended colonialism, neo-colonial captures the effects of processes by
which international divisions of labour are maintained without formal territorial control.
By maintaining a theoretical distinction between post-colonial and neo-colonial the
possibility of illuminating different aspects of particular situations, and how they relate to
each other, is enhanced.
From decolonization to post-coloniality
Alavi's theorization of post-coloniality focused on decolonization as the significant

moment of historical rupture. When the moment of decolonization is more remote from the
object of inquiry, as is the case with a post-colonial critique of Irish abortion law after 1983,
other historical changes will come to have an effect on how social relations respond to a
history of colonization and decolonization. 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, once the historical struggle for
54 Stuart Hall, "The Local and the Global: Globalization and Identity", in Anne McClintock, Aamir
Mufti and Ella Shohat (eds.), Dangerous Liaisons: Gender, Nation, and Postcolonial Perspectives,
(Minneapolis: University of Minnesota Press, 1997) 173-187.
35
independence has become more remote. Shohat, for example, 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, toward a discursive analysis and historiography addressing decentred
multiplicities of power relations (for example, between colonized women and men, or
between colonized peasantry and the bourgeoisie)".
55
Appiah has also suggested that the
post-colonial is a space clearing gesture after anti-colonial nationalism, rather than a space
6
clearing gesture or challenge to colonialism. 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. 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, such as pro-life politics, is
assuming a more prominent social role.
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. Sixty years after the moment of decolonization, however,
decolonization is less an historical subject acting on and changing Irish society, and is more
an historical object which is acted on and changed. When the purpose of decolonization
has been substantially achieved and formal independence has been established, the
55
Shohat, supra note 42, at 106-107.

Kwame Anthony Appiah, "Is the Post- in Postmodemism the Post- in Postcolonial?" (Winter 1991) 17
Critical Inquiry 336-357 at 348, 352.
56
36
experience of being colonized shifts from being a driving force of social change to
becoming a condition of the particular society's existence. While Alavi theorizes
decolonization as a historical subject, my project requires a theorization of post-coloniality
as a historical object. Decolonization is a subjective force responding to objective
conditions of colonization. Once decolonization has been achieved, post-coloniality
becomes one aspect of the objective conditions to which other subjective forces respond.
For some social forces post-coloniality is a more proximate objective influence than
others.
Not
just
state
the
While Alavi traced the effects of decolonization on 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. When Alavi
argued that the post-colonial state was characterized by a military-bureaucratic apparatus,
he was explaining the difference that decolonization meant to what he saw as its primary
object, the state form. My study is less concerned with the state per seas a general form,
and more with the specific entities of law and of those groups and individuals that have
made legal interventions in the area of abortion. On the one hand, 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. On the other
hand, 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.
37
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, the indigenous bourgeoisie, and
the landowners.
As Ahmad has pointed out, 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. 57 Ahmad comments on a variety of reasons why this characterization is
problematic, but I will just focus on one that is useful for my purposes.
This
characterization of the post-colonial state implies there is a structural tendency for the post
colonial state to dominate civil society, effectively inhibiting the latter's proper
constitution. In the Irish post-colonial context which I am examining however, civil society
associations have exerted a strong influence on the parliamentary state in the realm of
abortion policy. 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.
The authors of legal interventions are closer to the subject side of the
subject/object relationship in my analysis of Irish abortion law, as distinct from the state
being an object
57
Alunad, supra note 44, at 17-21.
38
of decolonization for Alavi. Bodies such as the Pro-Life Amendment Campaign,
the
Student Unions, and the Attorney General have all acted as legal subjects in the sense that
they have engaged with and chang d abortion law. As an object, as part of the objective
conditions in which those changes have occurred, post-coloniality has had an impact on
those subjective legal interventions to differing
extents.
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. In these instances postcoloniality is part of the explanation for why such legal interventions are sought. On other
occasions, post-coloniality provides some understanding of how particular legal interventions
justified themselves. Therefore, when investigating the effects of post- coloniality on
particular socio-legal processes one ought to clarify the degree to which post- coloniality has
effects as a subject or as an object or as a combination of both. There is also a need to
clarify if post-coloniality has differential impacts as a subject/object, and to explain what
accounts for such differential impacts.
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. Feminists have drawn attention to the ways
in which colonial and nationalist ideologies both draw on and shape gender relations.
58
58 See for example, Nira Yuvai-Davis, and Flora Anthias (eds.), Woman- Nation- State (London:
Macmillan, I 989), Anne McClintock, Imperial Leather: Race, Gender and Sexuality in the Colonial Context
(New York: Routledge, 1995).
39
Colonial desire to civilize the natives has sometimes meant that women, regarded as
responsible for social and cultural reproduction, have been targetted as the appropriate
bearers of the 'right' social standards and moral values. 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.
Nationalist
ideology in tum has celebrated womanhood as having a key role to play in producing loyal
foot soldiers. Nationalism has called those foot soldiers to the task of throwing off colonial
power by representing the nation as a woman in distress, or as a mother bereft of her
children.
Ireland has a long history of being gendered female in both colonial and nationalist
imaginaries. 59 That gendered construction of the nation has had material effects. Innes
notes how women who participated in anti-colonial protests in Ireland were arrested
and charged with prostitution; she says "political transgression was branded as sexual
transgression".
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. 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, just
61
two years after the establishment of the Irish Free State.
Hanafin argues that the
59 See Geraldine Meaney, Sex and Nation: Womem in Irish Culture and Politics; (Dublin: Attic Press,
1991); Declan Kiberd, Inventing Ireland: the literature of the modern nation (London: Vintage, 1996).
60 Lynn Innes, Woman and Nation in Irish Literature and Society, 1880-1935 (London:
Harvester
Wheatsheaf, 1993) at
12.
61
Maryann Gialanella Valiulis, "Defining their Role in the New State: Irish women's Protest Against
the Juries Act of 1927", ( 1992) I 8( I) Canadian Journal of Irish Studies 42-60.
40
hypennasculinity of the young Irish nation state was a nationalist reaction against having
being feminized as a colony, a reaction which helps explain the exclusion of gay sexuality
from Irish national identity.
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.
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, and on social movements such as nationalism
and fundamentalism. As well as multiplying the sites of post-colonial analysis, the period
of post-coloniality has extended beyond the moment of decolonization to the aftennath of
decolonization. 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, these trends appear to suggest resources for theorizing the differential
impact ofpost-coloniality on abortion law and on social movements engaged with that law.
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. As Bhabha has articulated, hybridity is an effect of colonial power
which "is the name for the strategic reversal of the process
of domination
through
62
Patrick Hanafm, "Rewriting Desire: The Construction of Sexual Identity in Literary and Legal
Discourse in Postcolonial Ireland", (1998) 7(3) Social and Legal Studies 409-429.
41
disavowal".
63
Hybridity is the result of the colonizeds' intervention into their own process
of colonization.
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. On occasion however, he seems
to prioritize the role of language over history in producing hybridity. 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, that we begin to understand why
hierarchical claims to the inherent originality or 'purity' of cultures are untenable, even
before we resort to empirical historical instances that demonstrate their hybridity".
64
So,
while Bhabha's conception of hybridity initially appears to depend on historical context,

that historical context sometimes becomes a secondary theoretical consideration. Bhabha
has ambitious hopes for the recognition of cultural hybridity, he sees it as a means to
articulating an international culture.
65
It is in moments like these, where a claim is made
that cultural hybridity can be a stepping stone for the international community, that
hybridity loses its historical connection to colonialism altogether by becoming equivalently
relevant for all. In these various references of Bhabha's, hybridity is an ambiguous term,
sometimes having a necessary connection to colonial history, sometimes having a
contingent connection to colonial history, and sometimes having no connection to colonial
history at all. These ambiguities do not necessarily prove problematic when hybridity is
63
Homi Bhabha, "Signs Taken for Wonders", in his The Location of Culture (New York: Routledge,
1994) 102-122, at 112.
64 Ibid. at 37.
65 Ibid. at 38.
42
applied as a theoretical construct to empirical situations which do have a colonial history.

But they do make it difficult to elaborate at an abstract level an explanation for aspects
of and changes in such colonial situations.
Bhabha sees hybridity as a refutation of both the claim that there are
inherently original pure cultures, and the claim that colonial power totally represses
and silences native cultural traditions. 66 In this guise, hybridity has proved a useful
conceptual tool for feminist critiques of law and policy as a means of disputing claims of
cultural authenticity. For example, 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.
As Brenda Cossman
has argued, 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. 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. 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. 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. The joint family model came to be
ideologically dominant in law through the colonial government's
66
Ibid. 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, then an important
change of perspective occurs."
67 Brenda Cossman, "Turning the Gaze Back on Itself: Comparative Law, Feminist Legal Studies and the
Postcolonial Project", ( 1997) 2 Utah Law Review 525-544.
43
acceptance of Sir Henry Maine's representation ofit as the chief model of familial relations
68
in India. 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.

However, when one examines more closely how hybridity is theoretically defined in
this analysis - 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, hybridity becomes a generalized
concept relevant to many transnational cultural interactions, and loses the theoretical sense
of being produced by a historical shift through colonialism.
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- the
joint family model - and not because hybridity particularly theoretically incorporates a postcolonial history. Because the concrete level of analysis - the case study of the joint family
model - 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. But because the abstract level of
analysis - the theoretical construction of hybridity - has an ahistorical dimension it can only
be minimally instructive about how hybridity works in post-colonial Indian society.
Therefore, while I agree that such post-colonial case studies of cultural hybridity have
produced useful critical knowledge of particular social practices, I would argue that this
68 Ibid. at 534
69 Ibid. at 536-7.
44
occurs when the practice actually does have a post-colonial history, when post-coloniality is
an historical object for the practice in question.
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. Hybridity facilitates a critique of the Hindu Right's attempts to repress minority
sexualities by characterizing them as Western and excluding them from Indianness.
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.
In
the face of exclusionary cultural tactics, hybridity clearly provides a means of

conceptualizing opposition and defence. However, when we look at how Kapur defines
hybridity, it becomes clear that there is little about the concept which ties it at an
abstract level to the effects of colonialism.
Without such specificity at the
theoretical level there is nothing to limit its potential application to other empirical
situations, at which point it becomes difficult to say that the theoretical aspect of hybridity,
rather than the case-study aspect, is contributing to the production of such knowledge.
Drawing on Stuart Hall, Kapur argues that culture is hybrid when it is not "stagnant
71
and fixed but is constantly shifting and fluid". While it may be true that cultural hybridity
which is produced through contact with colonization is constantly shifting and fluid, this
is also true of any number of cultural phenomena. When cultural hybridity is represented
in
70 Ratna Kapur, '"A Love Song to Our Mongrel Selves': Hybridity, Sexuality and the Law" (1999) 8(3)
Social and Legal Studies 353-368.
71 Ibid. at 358
45
such general tenns, hybridity - as a category of post-colonial critique - redefines postcoloniality. Kapur goes on to argue, again drawing on Hall, 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".
72
Here the post-colonial moment has become
generalized beyond any condition of emergence from colonization. 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, to a sense that even
feminist separatism cannot escape patriarchy. Such general notions of hybridity and postcoloniality may still be useful for arguing against those who want others to return to an
'uncontaminated' state, but they do not have the means to specifically explain why such a
return is impossible.
At the end of the article, 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. Hybridity,
as useful as it is in the sexual debates and the culture wars, does not mean that I
want the deployment of hybridity to amount to a celebration of the imperialism
that helped produce it. It is important to remember that postcoloniality is about a
73
critique of imperialism that produced hybridity, not simply about its production".
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. She clearly states that post-colonial engagements with hybridity ought to
incorporate a critique of the role of imperialism in producing such hybridity. In making
72
I
bid.
73 Ibid. at
363.
46
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. The historical context
in which she is tracing cultural hybridity - the sexuality debates between cultural
nationalists and queer and feminist activists in 1990s post-colonial India - is at a significant
temporal and geo-political distance from the cultural hybridity produced during the imperial
settlement of India. When Bhabha discusses hybridity in such essays as "Signs Taken for
Wonders"/ 4 hybridity is a feature of colonial discourse, rather than a feature of post
colonial discourse which is the way in which Cossman and Kapur interpret and use it.
When Bhabha speaks of the colonizeds' mimicry of the colonizer as an effect ofhybridity,
Cossman and Kapur speak of cultural nationalists' claims of authentic Indian cultural
values as hybrid. The historical context, power relations and subject positions are different
in both instances. While both are forms of hybridity, they are different forms, colonial in
the first instance and post-colonial in the second. 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.
Therefore, while I acknowledge that hybridity has served in useful ways in
particular concrete analyses I have two objections to its theoretical status. I fail to see why
a generalized cultural hybridity should be located within
the
particular
theoretical
framework of post-colonial critique, or why cultural analysis would not come to the
74
Bhabha, supra note 63.
47
conclusion that hybridity poses anyway. To paraphrase Aijaz Ahmad, when the basic idea
that informs cultural hybridity is so general it can only be treated as a truism. There is no
way in which a generalization of this order - namely that in circumstances of transnational
movement cultures bear the marks of their encounter with other cultures- can be disproved
in any specific sense.
75
When hybridity works at such a level of generality, it cannot
accommodate historical specificity as a theoretical construct.

While the concept of 'hybridity' might have arisen within the historical context
of the emergence of post-colonial theory, the practice which it represents arose
historically with transnational flow between cultures. Shohat comments, for example, 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.
76
Although there have been historical changes in the
production of transnational flow, hybridity itself defined in such broad terms does
not lend us the conceptual apparatus with which to theorize these changes. The question
then becomes: if hybridity is so general a concept why should it be tied to the particular
critical task of post- colonial theory? We could say that post-coloniality is a specific
instance of transnational flow between cultures, as former colonizer and former
colonized renegotiate their relationship in conditions of formal independence. But, 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, "The politics ofliterary postcoloniality" (1995) 36(3) Race and Class 1-20, at 13.
Shohat, supra note 42 at 108-9.
48
transnational movement between cultures. It only becomes theoretically consistent to

figure hybridity as a post-colonial theoretical category if post-colonial itself becomes
generalized beyond its historical boundaries. This is exactly what happens, I argue below,
when post-colonial becomes a global category. However, rather than generalize the
empirical so that it fits a generalized theoretical, I suggest that we rein hybridity in and
reassert its theoretical connection to colonialism as a historical process.
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. The object of a global post-colonial critique does
not necessarily have a post-colonial history; it has not necessarily been produced through
the formal ending of colonialism. Once both the object and the theoretical framework of
the analysis are removed from historical moorings in conditions of post-coloniality, the
analysis is no longer post-colonial in any historical sense. If the practice of wearing the veil
in countries which not only were not colonized but were imperial, Turkey for example, can
become the object of a post-colonial analysis of hybridity, then post-colonial becomes a
metaphor. Any social practice can be substituted for a post-colonial object,
can
be
theorized in post-colonial terms.
49
Abu-Odeh, for example, explores different ways of reading the wearing of the
veil in her post-colonial feminist critique.
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.
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.
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, I am less clear about how her study is
useful as an example of post-colonial critique. She refers generally to the wearing of the
veil in Muslim societies but does not tie it to any particular post-colonial society. 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; or whether postcolonialism 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, or
whether she thinks post-colonialism is sufficiently broad to combine the two.
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. One
of
77 Lama Abu-Odeh, "Postcolonial Feminism and the Veil: Considering the Differences", (1992) 26
New England Law Review 1527.
50
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. 78 Such references make explicit the direction
in which the dominant strain of post-colonial theory has been heading for some time.
If post- colonial refers to the world, or to some global condition, then it is no
longer a category which has any theoretical connection to the end of colonialism. In its
global manifestation, the post-colonial simply becomes a generalized category describing
and criticizing global conditions. Once its object becomes the world, post-colonial theory
is limited to operating at a very broad level of generality.
The
most it can offer is a critique of processes of domination. For example, Eve DarianSmith characterizes post-colonialism as a critique of modem forms of domination whose
insight lies in understanding how the past informs the present.
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."
80
As a generalized global category, post-colonial is a metaphor for
whatever forces produce domination and unequal relations of power. In other words, I
would argue that a metaphorical, global conception of post-coloniality has
78
For example, Bhabha refers to a post-colonial world in "The Commitment to Theory", in his The
Loction of Culture, supra note 63 at 21. See further Ahmad, supra note 75 at 9, and Aijaz Ahmad, "Post-
colonial
Theory and the 'Post-' Condition", Socialist Register 1997 (London: Merlin Press, 1997) 353-381 at 365-367.
79 Darian-Smith, supra note 49. The use of the word 'postcolonialism' to name the practice of
criticizing postcolonial conditions and practices, rather than, or sometimes as well as, 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. When postcolonialism functions
as both critical and oppressive practice any distance between critique and the object of critique is lost,
everything is flattened into a sameness, and it becomes impossible to see or anticipate change. Imagine if
critical race theory and racism were spoken of and used as one and the same?
80 Homi Bhabha, "The Postcolonial and the Postmodem: The question of agency", supra note 63 171-197,
at
171.
51
little critical weight. 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, the role of the state in
reformulating the compact between the imperialist and the national capitals, the
new but nationally differentiated labor regimes, legislations, cultural complexes,
81
etcetera.
Dirlik has also trenchantly criticized the global, metaphorical aspects of post-coloniality.
He comments that specific problems in the historiography of post-colonial societies, such as
India, get conflated with general problems of a global condition called post-coloniality in
post-colonial discourse.
82
Therefore, post-colonial methodology is confused, it cannot
explain much about the specificities of post-coloniality, that is the effects of colonialism
after independence, if those specificities are simply instances of a global condition which is
the projection of a post-colonial subjectivity. 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,
universalizing historicism that reintroduces through the back door an
unexamined totality; it projects globally what are but local experiences. The
problem here may be the problem of all historicism without a sense of structure.
Without a web of
81
Ahmad, supra note 44, at 3
I.
82 ArifDirlik, "The Postcolonial Aura: Third World Criticism in the Age of Global Capitalism
(1994) 20
Critical Inquiry 328-356 at
340.
52
translocal relationships, it is impossible to determine what is different,

83
heterogeneous, and local."
Even efforts to overcome the generalizing defects of post-colonial theory occasionally

stray into globalizing language. Alexander and Mohanty say: "we foreground a
paradigm of decolonization which stresses power, history, memory, relational analysis,
justice (not just representation) and ethics as the issues central to our analysis of
globalization".
84
Here they 'foreground' decolonization as the paradigm for feminist praxis
in global contexts and for the analysis of globalization. They suggest that
decolonization should be the primary analytical tool for globalization and transnational
feminism. I think there are two potential problems with this tethering of decolonization
to global and transnational conditions. 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,
thereby undermining their distinctive critical potential. A paradigm of decolonization
likewise cannot accommodate all that is globalization unless it is understood as a
synonym for globalization.
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.
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. at 345.
Alexander and Mohanty, supra note 52 at xix
53
evacuated. As Purdy argues, when post-colonial becomes a general descriptor it refuses

recognition to those situations of continuing colonialism, such as Northern Ireland,85 or
native communities in North America or Australia.
86
Interestingly, 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.
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, 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. They can be criticized on their
own terms. Furthermore, I believe it hinders knowledge production and struggles against
injustice to label something in order to criticize it. The label should follow the criticism,
not the other way around.
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. 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.
85 Although the introduction of devolved government may change this fonnal situation. 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. See Chris Thornton, "Factions unite
in abortion debate", The Belfast Telegraph, 19 June 2000, available at http://www.belfasttelegraph.co.uk/.
See for an earlier analysis: J Scott Tiedemann, "The abortion controversy in the Republic oflreland and
Northern Ireland and its potential effect on unification", (1995) 17(3) Loyola of Los Angeles International
and Comparative Law Journal737-764.
86 Jeannine Purdy, "Postcolonialism: The Emperor's New Clothes? (1996) 5(3) Social and Legal Studies
405426.
54
Colonialism is given a particular meaning when read through a post-colonial narrative.

Therefore, 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, and how social practices are informed by such post-colonial readings.
But,
interpretation through language and discourse in the moment of reading is not the only
determinant of meaning. This is what post-colonial theory forgets when it strays from a
historical self understanding. The possibility of a post-colonial reading is brought about
through a historical shift from colonialism to post-colonialism. The historical event that is
the end of colonialism, the achievement of independence, produces post-coloniality. When
colonialism is displaced as the dominant historical narrative, its components scatter and
become historical fragments which haunt the new dominant post-colonial historical
narrative.
Post-coloniality becomes the objective condition in which those historical
fragments are read.
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. The 'post' in
post-colonial only becomes theoretically significant when one adopts a historical
understanding of post-coloniality. Unless the 'post' signifies a historical change it becomes
redundant. If colonialism never ends then what advantage can there be to adopting a post
colonial critique? In other words, post-colonial critique loses its critical capacity unless it
works historically. 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
Post-coloniality as a historical object
If a historical conception of post-coloniality adopted the version of materialist

historiography which Walter Benjamin has outlined, 87 for example, and theorized postcoloniality as 'brushing history against the grain', it would be able to account for the afteraffects of colonialism in conditions of post-coloniality.
Brushing post-colonial history
against the grain means accounting for the fragmentation of colonialism as a once dominant
historical narrative now displaced. Although those fragments no longer keep that dominant
narrative together, they still haunt now dominant historical narratives.
They can also
provide substance for newer historical narratives to appropriate and mould. Benjamin's
metaphor allows us to conceptualize the co-existence of historical structure and
fragmentation. 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. On this interpretation of history we can begin to understand how the colonial
construction of the Irish as Roman Catholics, for example, continues to have effects even
when that colonialism has come to an end. We can also account for the distinction between
different sorts of mobilizations of post-coloniality as a justification for abortion law. 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. If post-colonial critique has anything to offer the critique of Irish abortion
87
Walter Benjamin, "Theses on the Philosophy of History", in his Illuminations ed. Hannah Arendt
trans. H. Zohn (London: Fontana, 1973) 256-66.
56
law, I suggest therefore, that it is when post-colonial theory offers a historical conception
of post-coloniality which theorizes history against the grain.
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.
This conception of an object draws on Adorno's discussion in "Subject and Object", where
he comments: "Defining means that something objective, no matter what it may be in itself,
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, he thought that the object was primary in the sense that it is possible,
potentially if not actually he says, to have an object without a subject. 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. On the
other hand, he also argued that "If the object lacked the moment of subjectivity, its own
objectivity would become nonsensical" 89 indicating the object's dependency on the subject,
albeit perhaps a weaker dependency than the subject's dependency on the object in
Adorno's view.
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, anti-abortion strategy and more an objective force which ties
88
Theodor Adorno, "Subject and Object", in Andrew Arato and Eike Gebhardt, (eds.) The
Essential Frankfurt School Reader, (New York: Continuum, 1993) at498.
89
Ibid. at 509
57
subjective activity to the conditions of its existence in some way. As a historical object,
post-coloniality is part of the background of Irish abortion law. But the extent to which
post-coloniality is a relevant feature of legal interventions depends on the character of the
subjective interaction with it. For some subjects of abortion law, such as Richard Greene or
Youth Defence (discussed below), post-coloniality is a proximate object. For others, the
Attorney General, women having abortions, pro-choice groups, post-coloniality is a less
proximate objective influence. As a historical object post-coloniality is always there, a
trace which cannot be erased, a condition whose effects cannot be eradicated. But the
degree to which post-coloniality has effects on social and legal practices depends on its
relationship with other historical objects - capitalism, patriarchy, racism - and on its
relationship with historical subjects - pro-choice and pro-life movements.
Post-coloniality
Politics
as
Motivation
for
Abortion
For the sort of post-colonial critique which I defend to be relevant to the analysis
of Irish abortion law, that law must first of all be a product of a society which has
experienced two historical processes: colonization and decolonization. Although some
might argue that Ireland's colonization began with the arrival of the Anglo-Normans in
1169, the more plausible view is that Ireland's colonization was achieved primarily
through the conquest by the 'New English' in the seventeenth century. The AngloNormans, or 'Old English', lived peacefully alongside the native Irish, adopted Irish
customs and language, and have been referred to 'as more Irish than the Irish themselves'.
A sense of English governance was only really felt within the Pale - the greater Dublin
area. Although the presence of the
58
'Old English' had important implications for the eventual colonization of Ireland, the fact
that the native Irish retained substantial economic and cultural control until the 1600s
challenges the claim to pre-1600 colonization.
However, during the seventeenth century lands were confiscated, civil rights taken
away, and Brehon law90 finally supplanted by English law, all in the name of privileging
Protestantism over Catholicism. These measures set in train a process that would
eventually culminate in the establishment by the nineteenth century of an English landlord
class. 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, the Act of Union, and the Great Famine. Although colonial processes
differ over time and space, it is this process of building a strong capitalist nation-state, such
as England, through the political control and economic exploitation of external territories,
such as Ireland, that particularly characterises colonialism. The consequences of Ireland's
colonization have been discussed and debated in a variety of contexts; 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', 92 to Curtis's
documentation of Victorian sterotypical depictions of Irish Celts as dangerous ape-men or
90 See further: Donnchadh 0 Corrain, "Women and the Law in Early Ireland", in Mary 0' Dowd and
Sabine Wichert (eds.), Chattel, Servant or Citizen. Women's Status in Church, State and Society (Belfast:
Institute of Irish Studies, Queen's University Belfast, 1995) 45-57.
91 See further: Robert Dudley Edwards, Church and State in Tudor Ireland. A History of the Penal Laws
against Irish Catholics, (London: Longmans, Green and Co., 1935).
92 Karl Marx and Fredrich Engels, On Colonialism, (Moscow: Progress Publishers, 1959) at 330.
59
93
simianized agitators. A more thorough account of the evidence of Irish colonization is

beyond the scope of this chapter; these short comments are intended merely to indicate that
the first necessary condition for a post-colonial critique can be fulfilled.
Decolonization, as the second necessary condition for a post-colonial critique,
came about after the War of Independence when the Anglo-Irish Treaty was signed in
94
1921. 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. Through partition that part of Ireland which was to become the Republic
and whose abortion law is the object of this dissertation was decolonized. The process of
establishing Independence was to continue through the 1930s - with the adoption
of the 1937 Constitution which declared Ireland sovereign - and through the 1940s when Ireland withdrew from the Commonwealth and declared itself a Republic in 1948.
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.
Although the economic and
cultural effects of the colonial relationship would continue to have an impact on Irish
policy-making, 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.
93
L.P. Curtis, Apes and Angels- The Irishman in Victorian Caricature, (Newton Abbot: David and Charles,
1971).
94
See further: D. George Boyce, Decolonisation and the British Empire, 1776-1997 (London: MacMillan
1999).
60
In the post-colonial aftermath of decolonization and colonization, these processes

become referents which help make sense of new social developments. As Luke Gibbons
has put it, although Ireland may be a first world country, it has a third world memory. 95 A
colonial history continues to have contemporary effects in a number of ways; 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. 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. 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.
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
This slogan clearly
constructs
abortion as a weapon that England uses against Ireland. The violent and bloody language
here associated with abortion invokes memories of violent and bloody struggle between a
colonizing England and a colonized Ireland. 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, a
wrong which demands not only recognition but vengeance. Abortion is also a means by
95
Gibbons, supra note 45; see also Carol Coulter, Ireland: Between the First and Third Worlds (Dublin: Attic
Press, 1990).
96
Cited in Lisa Smyth, "Narratives of Irishness and the Problem of Abortion: The X Case 1992", ( 1998) 60
Feminist Review 61-83.
61
which the English control Irish population growth. The reference to 'mills' indicates that it
is an industrial conception of colonial England that is being conjured up here to demonize
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. In this example, anti-abortion advocates use an industrial conception of colonial
England to symbolize the wrong of abortion. They also clearly depict the threat as
stemming from an external source, from the provision of abortion in England.
Whereas, as I discuss below, 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. In the latter instance the threat stems as much from
internal Irish sources, such as pregnancy counselling centres, 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.
While pro-life activists represented abortion as a violent colonial tool of population
control, 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", a title which Tom Hesketh subsequently took for his book
62
subtitled "The Abortion Referendum of 1983".
97
This title clearly refers to the
partitioning of Northern Ireland from Southern Ireland under the 1921 Anglo-Irish Treaty
as the first partitioning. It draws an analogy between the splitting of Ireland into an
independent South and a British ruled North, and the splitting of the Republic of Ireland
into pro-referendum and anti-referendum camps. 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 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.
The PLAC is recognized as an agent of division and compared to the agent
of division that was the 1921 Anglo-Irish Treaty.
But in the same moment that
division and exclusion are recognized in this comparison of PLAC and the Treaty, the
instability and irresolution of those measures also become obvious.
The first partitioning, the 1921 Treaty, divided Ireland into a Roman Catholic
dominated South and a Protestant dominated North. The second partitioning, the PLAC,
divided the South into those who saw constitutional support for fetal rights as a necessary
measure to shore up traditional social values, and those who saw PLAC as a sectarian
amendment dominated by Catholic ideology. In calling the PLAC the second partitioning
of Ireland then, 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. The
97
Hesketh, supra note 40.
63
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. Both processes of exclusion were extraordinarily divisive, though
one was far more violent than the other. The acceptance of the Treaty triggered a one year
long civil war, and PLAC caused a bitter two year campaign.
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. They also reveal how Ireland's colonial
history is that which helps these representations make sense to the general public. Once the
forum in which the constitutional right to life of the unborn is being interpreted becomes a
legal forum, however, we lose such explicit references to abortion law as a means of
differentiating Irishness from Englishness, and as a means of celebrating Irishness. While
abortion law itself does not share colonial references with popular representations of
abortion, it does share a recognition of abortion as a means through which public values are
symbolized.
In the abortion information cases of the late 1980s, 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. 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. The courts failed
64
to substantively consider how the constitutional protection of other rights, such as freedom
of expression, ought to be accommodated when determining whether the provision of
abortion information was constitutional or not. In enforcing the fetal right to life as ifthere
were no conflicting constitutionally protected interests, the courts constantly referred to the
'public interest' in protecting fetal life. The public interest in fetal life emerged as the key
legal mechanism by which Ireland was to kept free from contamination by abortion. This
public interest was incapable of accommodating other public interests such as the protection
of women's health, or the democratic value of free speech. Thus while anti-abortion policy
was being represented in public discourse as a necessary measure in order to protect Irish
culture, law constructed an exclusive public interest in fetal life.
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, however, the oppressive underside of Article 40 3 3's celebration of
Irishness was revealed. 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, what sort of State has it become that
in 1992, its full panoply of authority, its police, its law officers, 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.
98
The Irish Times, 18 February 1992. The High Court judge in the X case had referred to the
rapist as a 'depraved and evil man'.
65
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. 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. In the crisis moment of the X
case, 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.
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.
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.
By depicting the X case decision in terms of the Republic's virtual imprisonment of a
young vulnerable child, 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, the British
government introduced a policy of internment without trial. 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, The Irish Times, 17 February 1992.
66
civil rights for the Catholic minority were imprisoned without trial for months or years. In
casting the High Court decision as an internment of X, 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. 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. 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 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. 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. As the judges gave their
reasons for their decision their sense of frustration became clear. The Court responded to
the X case crisis by straying slightly from an objective, neutral mode of discourse in order
to express distress at the effects of legal intervention on X, and anger at the legislature for
its failure to provide a regulatory framework for Article 40 3 3. In interpreting Article 40 3
3 as permitting abortion in this case, the Court was mindful of its responsibility to respond
carefully to this crisis. There was another kind of crisis to which the court responded,
100 See Smyth supra note 97 at 71.

67
however, apart from the crisis of X being stopped from terminating her pregnancy. This
second sense of crisis was about the status of abortion law itself. 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. McCarthy J.
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; it is inexcusable.
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... The Amendment, born of
public disquiet, historically divisive of our people, guaranteeing in its laws to
respect and by its laws to defend the right to life of the unborn, remains bare of
101
legislative direction.
McCarthy J. uses particularly harsh language to criticize the legislature's 'inexcusable'
failure to legislate on abortion. In the same moment that McCarthy J. 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. 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. The;,Amendment which partitioned
Ireland for the second time, 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.
Abortion is by no means the only issue on which the legislature has been found lacking in
the area of reform, but it is an issue which has made the consequences of legislative
inactivity painfully clear. In
101 Attorney General v. X supra note 1 at

82.
68
noting that this crisis might have been avoided if the legislature had taken on the role of
legal reform more courageously and more thoughtfully, though, the judiciary fails to take
responsibility for their own role in producing this crisis. However, the legal response to the
X case crisis made clear two failures on the part of the Irish state. As a matter of substance,
it had not only failed to protect and serve one of the most vulnerable of its members, it had
increased her suffering. As a matter of procedure, it had failed to provide a legal
framework for the regulation of such complex situations, so that the Attorney General felt
himself obliged to seek this injunction against X. 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, and that it was capable of acting with as much oppression and
authoritarianism as any colonial regime.
In the aftermath of the X case, two key reforn1 initiatives occurred. In November
1992, a referendum was held which put three questions to the Irish people on the issues of
travel, of information, and on the so-called 'substantive' issue of abortion. 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 distinct from the health, of the mother where there is
an illness or disorder of the mother giving rise to a real and substantial risk to her
life, not being a risk of self-destruction.
This subsection shall not limit freedom to travel between the State and another
State.
This subsection shall not limit freedom to obtain or make available, in the State,
subject to such conditions as may be laid down by law, information relating to
services lawfully available in another State.
69
The first of these clauses was rejected, while the second and third were accepted.
The second major reform which occurred was the passing of legislation which
regulated the conditions in which it was permissible to provide abortion information. The
Act was referred to the Supreme Court for an assessment of its constitutionality and was
found constitutional. Given the failure of the amendment dealing with the substantive issue
of abortion, 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. Thus the law on abortion as distinct from the law on abortion information
awaits reform.
The accommodation of some abortion needs through the legitimisation of travel
and information rights, and through the recognition of a right to abortion where the
pregnant woman's life is in danger, has punctured the sweeping exclusion of abortion that
informed the law up to the X case. Arguments for and against abortion that were made in
terms of the need to protect cultural values versus the need to accommodate cultural
diversity, 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. 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
to Irish women. 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. At the same time as this shift in abortion arguments is occurring, law has also
changed from constructing abortion as a threat to public values, to recognizing abortion as a
medical service, albeit one to which there is sharply restricted access and which ought not
to be promoted.
One of the ways this shift is public abortion discourse is evident is in the arguments
of Youth Defence, the most militant of the anti-choice organizations, founded in the
aftermath of the X case in 1992. YD reported a radio interview with an employee of Marie
Stopes Reproductive Choices in the following terms: "In November of 1996, Dr. Jim
Loughran, the medical director of the newly formed Irish Marie Stopes branch, boasted on
the Pat Kenny radio show, that his organisation would provide package deals for Irish
women wanting to have their children killed in England, 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 - package deals and cut-prices - to describe such a service. The
implication is that the reproductive health clinic is interested in providing this service in the
same way that a travel agent would be. 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. Sean O'Domhnaill, "The Marie Stopes Controversy", (1997) So/as- Youth Defence
Newsletter,
available at:
added.
http://www.youthdefence.ie,
emphasis
71
seriousness. 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. It is interesting that Youth Defence does not rest at imputing
wrong to the clinic because it facilitates women's abortion choices, rather YD feels the need
to bolster its condemnation by dressing up the clinic's activities as exploitative, insensitive,
financial transactions.
Youth Defence also sought to discredit the Marie Stopes clinic by referring to the
eugenicist tendencies that Marie Stopes herself displayed. 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'. Marie Stopes eugenicist politics have
been widely criticized by feminists among others.
Youth Defence rightly find such
rationales problematic. However, the manner in which Youth Defence seeks to tar Irish
workers at the Dublin based clinic with the eugenicist brush is unjustifiable.
Frank
Crummy, a director of Marie Stopes Reproductive Choices, 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".
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. Considering that Mrs. Stopes would have regarded Irish Catholics as 'unfit'
perhaps, their abortion agenda means more than just 'a woman's right to choose"'.
103
103
Ibid.
72
Involvement in the provision of abortion services is thus labelled as activity contributing

towards the destruction of the Irish race. 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. 'The abortion agenda' is thus criticized on the grounds that
it is a threat to the Irish nation, a threat which one might have expected from the eugenicist
policies of an Englishwoman like Marie Stopes, but which is now posed in the form of
those working for an Irish based reproductive health clinic.
Father Paul Marx, founder of Human Life International, has been a frequent visitor
to Ireland since the 1970s. He has referred to the Irish Family Planning Association as
having 'invaded Erin' in 1969.
104
The IFPA's invasion oflreland is particularly threatening
according to Fr. Marx, because it is an affiliate of the International Planned Parenthood

Federation (IPPF). Fr. Marx characterizes the IFPA as having been planted by the IPPF
rather than having grown as an indigenous organization.
105
Ironically, Fr. 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. In 1999, as Youth Defence picketed the offices of the
Irish Family Planning Association (IFPA), there was a poster campaign which focused on
Tony O'Brien, executive director of the IFPA. These posters consisted of a picture of
0'Brien with a caption reading 'Exports Irish Babies for Slaughter'. Again here, 0'Brien
104
Carol Coulter, "Rape Victim case latest in line of battles over abortion", The Irish Times, 29 November
1997.
105
See Michael Solomons, supra note 33 for this co-founder's account of the development of the
Irish
Famiily Planning Association.
73
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. These posters also invoke
colonial memories by suggesting that O'Brien is involved in the expropriation of Irish
resources.
Richard Greene, a Dublin city councillor, member of the Green party, and well
known pro-life activist, has also used the colonial legacy to argue against a more tolerant,
pluralist approach to abortion. In November 1998 he commented:
The introduction by a minority church, the Church of Ireland, of something that the
majority is opposed to, the abominable evil of abortion, could well remind people of
other evils of a by-gone period that this church was associated with. As the church of
the oligarchy, it participated in the introduction and operation of the penal laws, caused
grinding poverty by landlordism, and forced the majority population to pay tithes to a
minority church. At the same time, we do acknowledge the courage, self-sacrifice and
heroism of many of the minority faith who stood against the evils of colonialism, and
were indeed the instigators of its abolition. 106
Greene suggests that any public acceptance of abortion in Ireland ought to be understood as
the result of Church of Ireland activity. His suggestion that the Church of Ireland ought to
bear responsibility for the introduction of abortion into Ireland is reductive in two ways. It
overestimates the role of the Church of Ireland ethos in the development of a more tolerant
attitude to abortion, and it underestimates the influence of other factors, such as public
alienation from the socially dominant Catholic Church. Not only does Greene misrepresent
106
Councillor Richard Greene, Address to Young Fine Gael Society: "Abortion- an uneasy balance", Trinity
College, Dublin, 24 November 1998, available on the website ofMuintir na hEireann, (Ireland's Family) the
pro-life group of which Richard Greene is a member, at:http://aoife.indigo/-muintir. Councillor Green gave
this address at a debate hosted by the youth section of the second largest political party in Ireland. Other
prominent figures from Irish abortion politics also participated. 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.
74
the Church of Ireland as the conduit for the introduction of abortion into Ireland, however,
he also uses this misrepresentation to persuade his audience that abortion law is as much
of a wrong as the Penal Laws were.
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. He
is headmaster of St. Patrick's Academy in Dungannon, Northern Ireland. In criticising prochoice developments as evidence of growing insensivity and selfishness in Irish society, his
target is more the politicians responsible for legislative change than the pro-choice
agencies. Faul identifies any acceptance of abortion and euthanasia as evidence of the view
that non-productive life is expendable, and believes that Ireland's increased prosperity has
made its people more vulnerable to this view. 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. Patrick" and ends with: "Alas for Celtic
Ireland: the Celtic Tiger eating her own children in the interests of European economics".
For Faul abortion is a symptom of Ireland's economic success, a success which has been
engineered by the European Community and which is actually destroying Ireland's
indigenous culture and race.
107
Mgr Denis Faul, "Celtic Tiger Devours its Young", (1997) 6(3) The Brandsma Review- Pro Vita, Pro
Ecclesia Dei, et Pro Hibernia, at 4-5.
75
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. 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. Abortion referral, that is the making of an appointment with an abortion
clinic by a pregnancy counsellor, was prohibited in the interests of preventing the
promotion or advocacy of abortion. The display of abortion information and the
distribution without solicitation of anything containing abortion information
were also
made unlawful. Furthermore, the 1995 Act forbids economic relationships between Irish
agencies and foreign abortion service providers. On the other hand, 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, are acting lawfully in that place;
if the information and the method and manner of its publication are in compliance with
the laws of that place;
if the information is truthful and objective; and
does not advocate or promote and is not accompanied by any advocacy or promotion
of the termination of pregnancy.
The Supreme Court upheld this legislation as constitutional.
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
accommodate support for the availability of abortion infonnation, and disapproval of

agencies which provide that infonnation. The legal protection of abortion infonnation is
compromised by a legal desire to condemn those service organizations involved in making
that infonnation available. A distaste for the perceived 'advocacy' work
of pro-choice
services explains the contradiction in the law between legal infonnation and illegal referral.
So while the postcolonial opposition between Britishness and Irishness has operated
to represent abortion as a cultural wrong, and women who abort as a cultural threat, the
manner in which that opposition has worked has varied. At times the British/Irish
opposition has represented Irish culture as a homogenous whole needing to be protected
from British pro-choice value systems, 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. Irish post-coloniality as a representational strategy for conservative abortion law
changes as the social material put to work in fonning that representation changes. The X
case has meant that it is no longer possible to represent all women homogeneously as a
cultural threat, and so the focus of attention has shifted more explicitly to pro-choice
reproductive health services. 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. In constructing abortion
as
an
exploitative British service with which Irish pro-choice agencies are colluding, anti-
77
abortion groups use the increase in provision and consumption of services to suggest that
abortion is a classic example of capitalist exploitation.
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.
Ireland's history of British colonization is part of the
explanation for the pro-natalist demands made of abortion law. 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, 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. 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.
78
3. 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. While Ireland's
experience of British colonization has featured in civil society as a motivation for political
attempts to keep Ireland abortion free, Irish post-coloniality has not been offered as a
rationale for protecting the right to life of the 'unborn' in the legal forum. On the other
hand, 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,

to be ashamed of treating X as if she was a colonial
subject,
to prevent foreign service providers from profiting from Irish
women,
do bear some connection to the different legal content which abortion has
taken:
as an infringement of an exclusive public interest in fetal

life,
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.
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.
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. If feminism is to identify more specifically the
role of
79
law in generating and sustaining the social relations which are the object of its critique, and
if feminism is to assess the impact of its own legal engagement on the conditions of
women's lives, it needs to understand the particular impact that law has on social relations.
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,
as well as the legal effects of social relations, without falling into the trap of positing a
singular conception oflegal form.
I use the form/content distinction to analytically differentiate the particular shape of
a thing, its form, and the stuff it is made up with, its content. For example, a limerick is a
limerick because of its form, because it has five lines which follow a rhyming pattern of
a,a,b,b,a. The content of the limerick is the words which make it up. Legal form can be
recognised therefore by the way it organizes its content into a particular formation.
Pashukanis,
108
whose conception of legal fonn I discuss below, thought that legal fonn
organized content by making individuals the owners of things, for example. The content
which legal form organizes consists of the social relations between people and things.
Once captured by legal form social relations become legal content. The purpose for which
legal form organizes social relations emerges from the social relations themselves. As
social relations change so does legal form, but not without that form having effects on the
way that change is articulated.
108 Evgeny B. Pashukanis, Law and Marxism: A General Theory (London: Ink Links, 1978).
Translated by Barbara Einhorn, Edited and Introduced by Chris Arthur.
80
Feminists who have theorized about the significance of legal engagement at a

more abstract level have said very little expressly about legal form.
Catharine
MacKinnon's work, for example, is well known for its challenge to the patriarchal
assumptions underpinning law.
109
In arguing that legal
neutrality is actually male bias, MacKinnon contributes to feminist legal theory by

implicitly warning feminists against using law as if it was an empty form, devoid of content
and easily adaptable to feminist purposes. However, in arguing that law is quintessentially
male, she collapses the distinction between fonn and content by depicting both as
equivalently patriarchal. Without a form/content distinction it becomes difficult to
account for changes in the relationship between legal and social
relations.
While MacKinnon is critical of legal abstraction because its generality prevents
the specificity of male dominance being challenged, Drucilla Cornell believes that
abstraction is necessary if feminists themselves are to avoid creating dominances through
law.
110
It is only by preserving abstraction that law can avoid the exclusion that
necessarily follows from defining the content of legal values. Once law ascribes particular
content to concepts such as sexual difference or freedom or equality, which can all have a
multitude of possible concrete articulations, law becomes an inhibitor of individual
freedom.''' 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.
The
109 Catharine MacKinnon, Feminism Unmodified: Discourses on Life and Law, (Cambridge:
Harvard University Press, 1987; Catharine MacKinnon, Toward a Feminist Theory of the State
(Boston: Harvard University Press, 1989).
110 Dmcilla Cornell, At the Heart of Freedom (Princeton NJ: Princeton University Press, 1998) at 38-9.
111 Ibid. at 23.
81
potential problem with this prescriptive view is that in emphasising the abstract, general
side of legal form, it potentially loses sight of its concrete, particular side.
Carol Smart has usefully distinguished between three different approaches to law in
feminist work: law as sexist, law as male, and law as gendered. 112 Smart prefers the latter
approach to law. Adopting the 'law as gendered' approach involves asking how gender
works through law and how law works to produce gender. In recognizing that law is a
gendering strategy, that legal discourse brings gendered subject positions into being, Smart
comes closest to claiming that law itself has effects on social relations. 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, but does not
explicitly explain what it is about law's relationship with social relations that could produce
changes in legal definitions of motherhood.
Judy Fudge,
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.
These feminists' analytical use of legal form is not readily adaptable for my purposes
however, as each understands legal form in slightly different terms, so that it is difficult to
112 Carol Smart, "The Woman of Legal Discourse" in her Law, Crime and Sexuality: Essays in Feminism
(London: Sage, 1995).
113 Judy Fudge, "Legal Forms and Social Norms: Class, Gender, and the Legal Regulation of Women's
Work in Canada from 1870 to 1920", in Elizabeth Comack (ed.), Locating Law: Race/Class/Gender
Connections
(Halifax: Fernwood, 1999) 160-182.
114 Shelley Gavigan, "Legal Forms, Family Forms, Gendered Norms: What is a Spouse?", (1999) 14(1)
Canadian Journal of Law and Society 127-157.
115 Doreen McBarnet, "Law and Capital: The Role of Legal Form and Legal Actors", (1984) 12
International
Journal of the Sociology of Law 231-238; and Doreen McBamet, "Legal Form and Legal Mystification: An
Analytical Postscript on the Scottish Criminal Justice Act, the Royal Commission on Criminal Procedure, and
the Politics of Law and Order", (1982) 10 International Journal of the Sociology of Law 409-417.
82
extricate a theoretical conception of legal fonn which could be said to consistently infonn
their work. 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. 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 "Law and Capital", Doreen McBamet argues that it is the use of legal fonn by
active subjects and their lawyers which gives it effect. 116 She focuses on the facilitative
fonn of law and how its generality, institutional structure, and reliance on the rule of law
can be manipulated.
"In Legal Fonn and Legal Mystification", McBamet looks at the
particular fonn of case law. 117 She argues that by virtue of its dual role of providing general
legal rules at the same time as deciding concrete factual cases, case law discourse provides
the subtlest contribution of all to legal mystification. Therefore, McBamet directs our
attention to the relationship between particular legal mechanisms, such as clients' litigation
and judicial interpretation, and legal fonn. 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, the
institutional legal structure, and legal practices. McBamet usefully reminds scholars of the
particular effects of legal practices and mechanisms, but does not clarify her theoretical
conception of legal fonn.
116 Doreen McBamet, "Law and Capital", ibid.

117 Doreen McBamet, "Legal Fonn and Legal Mystification", supra note 115.
83
Shelley Gavigan is more specific about the theoretical conception of legal form
that informs her analysis. 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.
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. Gavigan argues
that both case studies illustrate the elasticity of the concept of spouse. In the first instance it
now accommodates same sex couples in response to successful gay activism, and in the
second instance it increasingly includes any male co-habitee of a welfare mother, in spite of
welfare mothers' protests.
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. The
continued restriction of matrimonial property rights to legally married couples illustrates
that the closer one gets to property, the less flexible the legal form of spouse becomes. The
legal expansion of spouse so as to tie welfare mothers to the nearest available man against
their wishes, is also explicable as a patriarchal response to non-earning mothers. Gavigan's
analysis is helpful in its guidance towards Pashukanis as a useful resource in theorising
legal form, 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, supra note 114.

Pashukanis, supra note 108.
120 Bob Fine, Democracy and the Rule of Law (London: Pluto, 1984), and Bob Fine, "Law and Class",
in B. Fine et al., (eds.), Capitalism and the Rule of Law. From deviancy theory to Marxism (London:
Hutchinson,
1979) 29-45.
119
84
inequality of the social relations which that law regulates. However, because Gavigan
identifies both 'gender neutrality' and 'spouse' as legal forms, and because she identifies
property relations as capable of attributing content to legal form, without explicitly
explaining the relationship between spouse, gender neutrality and property, 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.
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, and further that it changed from 'status' to 'protection'. 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, 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, she
does not explain what it is about legal form at an abstract level that permits such actual
changes. In order to flesh an abstract conception of legal form out, I need to go back to the
theoretical framework which Fudge and Gavigan adapted- Pashukanis's commodity form
theory - and clarify what it is about legal form that enables it to capture social relations in
particular ways.
85
From law as a commodity form...

In general tenns, one of the central tasks of Marxist theory is to demonstrate
the reliance of fonn on content.
Through identifying the
particular content of what are assumed to be general forms, Marxist theory shows
how objects change over time in interaction with the social conditions in which they
exist.
Under historically changing capitalism objects assume a
form which is detennined by the material content thrown up by a capitalist mode of

production. Pashukanis was specifically concerned with explaining the legal form from a
Marxist perspective. For Pashukanis it is through legal form that human beings become
recognized as the subjects of proprietary rights; as the owners of property. Law itself
plays a distinctive role in driving the wheels of capitalism by giving the social relations
which it regulates a particular fonn. The form which legally regulated affairs take however
is itself historically detennined. So, while legal form itself has a specific content it is not
empty and waiting to be filled with meaning detennining content - legal form's specific
content has been produced by capitalist exchange relations.
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. The Marxist legal scholarship with which he was concerned had
focused on law as an ideological phenomenon, as a product of the material needs of society,
and as a set of historically evolving nonns and institutions. While Pashukanis accepted that
such scholarship was a contribution to legal knowledge, he believed that it was unhelpful to
86
theorize law as is if it was only ideological, 121 only a reflection of the material interests of
particular social classes, 122 or only the material content of legal regulation in different
historical epochs. 123 He did not dispute that legal concepts were implicated in ideological
processes. But he insisted that legal concepts were more than ideology at work; they also
provided the means by which social relations could be theorized and understood. He
agreed that law was a real phenomenon which had to be explained in Marxist terms, 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. 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". 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.
In criticizing Marxist legal scholarship and what he calls sociological and
psychological approaches to law, Pashukanis insists on the necessity of juridical concepts
(legal relation, norm, subject) for the task of theorizing law and its role in social relations.
At the same time, he is very critical of that body of scholarship which specializes in the
study of legal concepts: analytical jurisprudence in general, and the normative school, of
121 "However, it is not a matter of affirming or denying the existence of the ideology (or psychology) of
law, but rather of demonstrating that the categories of law have absolutely no significance other than an
ideological one", Pashukanis, supra note 108 at 73
122 Ibid. at 55.
123 Ibid. at 54.
124 Ibid. at 54.
87
which Kelsen is an exemplar, in particular.
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.
He writes: "Law as a form is
comprehensible only within its most precise definitions ... Yet, 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".
125
There are two problems with
what Pashukanis identifies as the empty formulae of formalism. In suggesting that its
legal concepts are adequate for the study of a transhistorical world, analytical jurisprudence
imbues the juridical categories of bourgeois commodity producing society with
universality.
126
Secondly, formalism
cannot account for the intrusion of reality into its own conceptual framework.
Thus
127
analytical jurisprudence forgets its own history. 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.
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.
129
Pashukanis was interested in teasing out what it means to say that law regulates
social relations. To say that social relations assume a legal form should mean more than a
mere tautology. "As it [law] is a social relation in itself, it is capable of colouring other
social relations to a greater and lesser degree, or of transmitting its form to them. However,
125 Ibid. at
58.
126 Ibid.
at 70.
127 Ibid.
at 86.
128 Ibid.
at 59.
129 Ibid. at 58,

102.
88
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', just as vulgar political economy was
not able to grasp the nature of capitalist relations, because it started from the concept of
capital as 'accumulated labour in general'."130 Pashukanis wants to clarify two things
about legal form here, to the extent that law has a general form, it is because "law
represents the mystified form of a specific social relation"; and secondly that "under
certain conditions the regulation of social relations assumes a legal character". 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, law had particular characteristics which
were not identifiable simply by the function of regulation.
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. Although the conditions of capitalism set the context by
which law became differentiated from other social realms such as morality, 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. While it is true that the legal form would not exist without the
commodity form, the commodity form needs the legal form to create subjects which can
realize the value of the commodity through its exchange in the market. When Pashukanis
explains the particular role that law plays in generating and sustaining capitalist relations of
130 Ibid. at 78.

131 Ibid. at 79.
89
production, he does so in terms which identify how legal character transforms social
relations. Once translated into law, the complexity of relations between and among people
and things become reduced to the question of who has rights over which object. 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. In responding to that need,
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. 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. 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, we have to ask how law produces those intentions and itself has effects on social
relations. 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.
132
Furthermore, the fact that the law is
autonomous, to the extent that it does not respond directly to the demands of social actors,
132 Isaac Balbus, "Commodity Fonn and Legal Fonn: An Essay on the 'Relative Autonomy' of the Law"
(1978) II Law and Society Review 571-88; also in C.E. Reasons and R.M. Rich (eds.), The Sociology of
Law (Toronto: Butterworths, 1978).
90
demands an explanation of its internal dynamics and how they articulate with the systemic
requirements of capitalism. Therefore, 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. Rather law compromises feminist practice by first creating the
conditions for feminist legal engagement, and second by translating feminist engagement
into legal form irrespective of feminist efforts to challenge that form.
For Pashukanis the legal form is a reflex of the relations of commodity production,
in a manner which posits a dcser, more fundamental connection between law and
economics than between politics anrl economics. Legal relations are clearly not a subset of
political relations as far as Pashukanis is concerned. 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. If law is that which is authorized by such a norm, then a political
superstructure is necessary as a norm setting authority. 133 Therefore, in this way of thinking
about law, law is derived from politics. However, when law and politics are theorized in
terms of the relations of production, law stands closer than politics to those relations.
Pashukanis agrees with Marx's description of the production relations and law as forming
civil society together, while the political superstructure, particularly the official state as the
organization of class dominance, is a secondary element of the production relations. Thus
Pashukanis suggests for feminist legal theory that law need not be thought of as one part of
the state, or as deriving from the state.
This relationship between law, politics, and
133 Pashukanis, supra note 108 at

90.
91
economics challenges the perception of law as a political instrument, a perception which

has had a dominant influence in feminist legal studies. It suggests that feminist engagement
with law needs to consider the market as a more proximate influence on law than the state.
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 challenging various kinds of restrictions of
women's reproductive freedom, feminists have argued that women must have the right to
control their bodies.
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, the claim that women ought to have bodily integrity and
reproductive autonomy has found an appreciative audience. In Pashukanis' terms, 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.
Some feminists have criticized the conceptualization of a woman's interest in
abortion as a right to control of her body. Their critique stems from a Pashukanis-like view
that the claim being invoked here is a property right, a right to control one's body as a form
134 See, for example, Gerber Fried, supra note

12.
92
of property. 135 They argue that even if invoking the ideal of self-ownership may achieve
some short term strategic gains, in the long term it reproduces a capitalist patriarchal ideal
by seeking the extension of masculine self-ownership to women. Carole Pateman has
argued, for example, that invoking women's right to own their bodies effectively validates
their right to sell their bodies through prostitution, surrogacy, marriage, labour, etc.
136
She
comments:
To extend to women the masculine conception of the individual as owner, and
the conception of freedom as the capacity to do what you will with your own,
is to sweep away any intrinsic relation between the female owner, her body
and reproductive capacities. She stands to her property in exactly the same
external relations as the male owner stands to his labour power or sperm; there
is nothing distinctive about womanhood. 137
Other feminists have tried to move beyond a choice between celebrating or
castigating the goal of self-ownership for women. 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, other conceptions of property are also available to us historically
and culturally. 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, exclusive, and instrumental in the
accumulation of things. She claims that arguments for women's rights to bodily integrity,
autonomy, and self-ownership do not necessarily have to assume a Lockean conception of
135
See Margaret Davies, "Feminist Appropriations: Law, Property and Personality" (1994) 3 Social and
Legal Studies 365; Jennifer Nedelsky, "Law, Boundaries and the Bounded Self' (1990) 30
Representations 162.
136 Carole Pateman, The Sexual Contract (Cambridge: Polity Press, 1988).
137 Ibid. at 216.
93
property, particularly given the evidence of alternative constructions of property in one's

self, historically and cross-culturally. As examples of non-Lockean
conceptions
of
property, Petchesky cites those of the Levellers and of African-American slaves. 138 She
argues for a recuperation of the notion of self-propriety as an indispensable part of feminist
conceptions of social democracy, 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." 139
Petchesky's compromise accepts that claims to self-ownership may have a role to
play in feminist politics, while acknowledging that the meaning of ownership depends on
its particular cultural context. 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. 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.
The ideal of fetal legal subjectivity
138 In "The Body as Property: A Feminist Re-vision", in Faye Ginsberg and Rayna Rapp, (eds.),
Conceiving The New World Order: The Global Politics of Reproduction, (Berkeley: University of California
Press, 1995) 387-406, Rosalind Petchesky argues that for such early modem European radicals as the
Levellers, who preceeded Locke, the claim to self ownership was "an oppositional stance against interference
by public authorities in one's sexual and bodily life", at 392. It was a claim which was mobilized in direct
opposition
to, and not in defence of, market relations as Levellers protested the closure of the commons as well as their
constant harassment. 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. 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 398.
139 Ibid. at 387.
94
mobilised more social, and legal, support than the ideal of female legal subjectivity in
the cultural context of abortion politics. 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 has two consequences. 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. Secondly, claims for women's self-ownership in reproductive matters are made in
resistance to the constraints placed on women by fetal legal subjectivity.
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. In other words, the social relations of
reproduction produced the fetus as a legal subject. However, this formal legal equivalence
between woman and fetus actually reflects a substantive difference in fetal and female
social subjectivity. This tension is revealed in the first place by asking how social relations
have produced this formal legal equivalence, and in the second place by asking how the
material context of pregnancy affects formal legal equivalence.
the
As stated above,
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.
The formal equivalence posited between woman and fetus in Article
40 3 3 is
95
actually the result of the differential attribution of social significance to fetal subjectivity
and female subjectivity.
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. The biological aspect of reproduction means that fetal life is being
sustained by the pregnant woman in a non-reciprocal relationship. The fetus biologically
needs and benefits from the woman, while the woman neither biologically needs nor
benefits from the fetus. 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. 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. As a social actor, a pregnant woman's subjectivity is partially constituted
through her acting out of her responsibilities to people and to society. She acquires social
subjectivity through meeting the needs of others and through having her needs met, by
feeding and being fed for example. Because the fetus is not a social actor, cannot respond
to social needs or wants, it cannot attain subjectivity through social interaction.
Fetal
needs, such as those of food and housing are met through providing for pregnant women;
while a fetus is not capable of meeting the needs of others. 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, at the same time as that self-owning status is
contradicted by the biological and social limits on fetal subjectivity. On the other side of
96
the equation, 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. 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. 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.
The contradiction posed by fetal legal subjectivity, as it claims to extend self
owning status while actually undennining women's, has played out in the courts'
interpretation of the relationship between female and fetal rights in the abortion context. As
I will show, 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, 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. Thus legal practice itself also made
clear that the fonnal and equivalent legal
subjectivity of woman and fetus was
contradictory.
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, is a concrete example of some of the limitations of Pashukanis's
abstract conception of legal fonn. 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. As several critics of
97
Pashukanis have observed, he cannot adequately allow for the contradictory effects of and
dialectical changes within actual legal fonns. Therefore, as it stands, his conception of
legal fonn is not adequate to the task of analysing a variety of legal fonns. However, by
engaging with the observations of such critics we can adapt the conception of legal fonn so
that it can accommodate change and difference.
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, and as has been shown by other feminist studies,
women have not always been constructed as full and equivalent legal subjects. Therefore,
we also need to amend the conception of legal fonn by engaging with feminist critiques so
that it can account for gendered subjectivity.
Changing legal form
A Pashukanis inspired conception of legal fonn operates at a high level of

abstraction and generalization. I do not believe, however, that the fault for an unchanging
conception of legal fonn lies with its level of abstraction. Rather, 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. 141 Shelley Gavigan makes a similar point: "Insistence upon
140 Bob Fine comments: "the form oflaw, that is, equal right, cannot be isolated from its content, namely
substantive inequality. But this dialectic between form and content of law in Marx's analysis, cannot be
transposed into a simple denunciation of all law as a bourgeois mystification of underlying inequalities",
Fine, "Law and Class", supra note 120, 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.
141 Alan Hunt, "The Ideology of Law: Advances and Problems in Recent Applications ofldeology to the
Analysis of Law", (1985) 19(1) Law and Society Review 11-37, at 25.
98
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, and importantly, the role of legal
subjects and legal actors."
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. This critical distance between the abstract and the concrete
legal form is necessary in order to recognise changes and tensions in legal form. If
feminist legal theory takes on the task of theorizing legal form at a general level, this
can aid the project of clarifying how different legal forms actually evolve and how
they characterize social relations. 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. I think
the problem with the formal rigidity ofPashukanis's conception of legal form lies rather
first, in his failure to adequately incorporate a dialectical view of the social relations which
produce legal form, and second, in his focus on exchange relations to the neglect of other
aspects of social relations.
Bob Fine, among others, has criticized Pashukanis for failing to allow for the
possibility that legal form can change. 143 Pashukanis's conception of legal form is both
singular and essentially capitalist. He believed that there would. be no role for law in
post- capitalist conditions. Law would 'wither away' along with the capitalist state. He
adopted this view of law because he believed that to do otherwise was to accept an
idealist view of law as eternal. However, in doing so he effectively rejected a dialectical
view of law, even
142 Gavigan, supra note 114, at 7.

143 Fine, "Law and Class", supra note 120.
99
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
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
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
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
original.
103
bourgeois legality and the relations of production founded on the expropriation of

labour."
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.
Whether the conception of production is expanded so as to include other
significant social relations such as reproduction for example,
153
or whether reproduction is
seen as a distinct but equally significant aspect of social relations, 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. 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. 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. 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.
However, in
order to tease out more fully how social relations attribute content to the legal fonn of
abortion, and in order to account for contradiction and change in that process, we need
first to gender that legal fonn.
152 Ibid. at 43.

153 Fudge takes the relations of production as including the production of human beings, supra note 113.
104
Gendering legal form

For Pashukanis, legal form reveals something about the way in which relations
between people and things are actually constructed in a capitalist society. His adoption of a
Marxist theoretical :framework provoked him to ask particular questions about the historical
connections between legal form, bourgeois society, and a capitalist mode of production.
This analysis can be a resource for feminist legal theory. However, his analysis of legal
form has to be read historically and contextually if it is to be adapted for feminist use. 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. 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.
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. 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. Before turning to the contribution that the perspective of social reproduction can
make to form/content analysis, however, it is necessary to clarify the ways in which
154 See, for example, Lydia Sargent, (ed.) The Unhappy Marriage of Marxism and Feminism: A Debate
on Class and Patriarchy (London: Pluto, 1981), Annette Kuhn and AnnMarie Wolpe (eds.), Feminism
and Materialism: Women and Modes of Production (London: Routledge and Kegan Paul, 1978), and
James Dickinson and Bob Russell (eds.), Family, Economy and State: The Social Reproduction Process
under Capitalism (Toronto: Garamond Press, 1986).
155 See Michele Barrett and Mary Mcintosh, The Anti-social Family, 2nd ed., (London: Verso, 1991).
105
Pashukanis's conception oflegal fonn is gendered. By requiring such theoretical

categories as legal fonn to accommodate the kinds of socio-legal relations which are the
object of my analysis, I can develop a conception of legal fonn which is appropriate and
adequate for that analysis.
When we apply a gender analysis to Pashukanis's theory, 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. 156 During a particular
historical period women were denied legal subjectivity and equal right in Pashukanis's
tenns. Under the common law doctrine of coverture a woman's legal personality became
that of her husband's on marriage. As Mary Lyndon Shanley explains:
A man assumed legal rights over his wife's property at marriage, and any
property that came to her during marriage was legally his. While a husband
could not alienate his wife's real property entirely, any rents or other income
from it belonged to him. On the other hand, a woman's personal property,
including the money she might have saved before her marriage or earned while
married, passed entirely to her husband for him to use and dispose of as he saw
fit. 157
When Pashukanis said that a conflict of interests was a prerequisite of legal fonn, he failed
to notice that law did not perceive relations between husband and wife as conflicts of
156 Fudge comments: "Aboriginal people, women, and members of visible minorities have, for
different periods and to different degrees, been denied the rights and privileges of legal personality
and political citizenship" supra note 113 at 163.
157 Mary Lyndon Shanley, Feminism, Marriage, and the Law in Victorian England, 1850-1895 (London: LB.
Tauris and Co., 1989) at 8-9. A married woman could not sue or be sued unless her husband was a party to
the suit, she could not sign contracts unless he was a co-signor, and could not make a valid will without his
consent. See William Blackstone, Commentaries on the Laws of England, 4 vols., (Oxford: Clarendon
Press, 1765-1769) vol. 1, chap. 2, at 158, where he explains that if husband and wife were one body before
God, they were one person before the law; a person represented by the husband.
106
interests. A wife's interests were presumed to be that of her husband. There can be no
conflict in interests if there is no distinction between interests in the first place.
It might be possible, however, to adapt Pashukanis's reading of legal form in order
to accommodate this criticism. One could argue that while a conflict of interests is one side
of the legal form coin, no differentiation of interests at all is the other. A consequence of
one party owning a commodity is that another party does not own it. So at the same time as
law creates a subject who is the bearer of private rights over a particular object, it also
implicitly creates a non-subject who is not the bearer of private rights in relation to that
same object. Pashukanis's statement that the legal form creates commodity owners may be
read as a positive version which implies a negative- that legal form also creates commodity
non-owners.
This logical possibility points the way towards a feminist reading of legal
form. Women were denied property rights not because a given piece of property was
already owned by other parties, but because they were excluded from the category of
commodity owners altogether by virtue of their subjectivity as women, not by virtue of the
exclusive ownership of particular objects. 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. The denial of property owning status to women provides a clue as to
their socially perceived role.
Just as there was a social explanation for the legal
interpellation of the rightsbearing subject, so must there be a social explanation for the
law's denial of rightsbearing subjectivity to married women. One such explanation has
107
been that women have been attributed responsibility for social reproduction,
responsibility which has compromised their ability to play other social roles. 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. At the same time as women were denied legal subjectivity however,
legal form created a means for women to claim access to 'men's' world, by providing the
construction of a rights endowed legal subject.
Women attained formal legal subjectivity by arguing that they deserved to be treated
as individuals before the law, individuals who were due legal rights and responsibilities.
As has been repeatedly pointed out in various works, however, women's attainment of
property owning status before the law has not brought about substantive equality, and does
not reflect a social equality between women and men as property owners. 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, and legal subjects in general. Pashukanis's conception of legal form is gendered
therefore in two primary ways. It cannot accommodate the historical fact that women were
not always conceived as property owning legal subjects. 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.
On one level, 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
legal form in binary subject/non-subject creating terms. 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, this binary legal form cannot adequately get at the complexity of
gendered legal subjectivity. At another level, 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. I am not suggesting that social reproduction is the
only or the primary perspective from which we can gender legal form. 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. 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. 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.
All women have not been legally constructed as equally responsible for social
reproduction. Lesbian women have been denied adoption rights and access to reproductive
technologies. Mentally challenged women have been sterilized in order to stop them from
reproducing. Native women have had their children taken away from them. At the same
time that women are represented as reproducers, women are required to conform to a
particular image of womanhood which is constructed by excluding some women from the
category of 'good reproducers'. Mary O'Brien's analysis of reproduction can provide us
109
with some of the analytical tools needed to explain how legal form can produce such
disparity in the content of laws which regulate reproduction. 158
O'Brien draws on the method of Marx's analysis of productive labour to provide an
analysis of reproductive labour. She argues that although eating, sex, birth and dying share
the status of biological necessities, only birth has been philosophically treated as if it can be
understood purely in terms of the biological sciences. Marx began with the need to eat
when he built his theory of productive labour as the remaking of human consciousness and
needs, Freud focused on sex, and the existentialists on dying. 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, the ethics of
parenthood or the processes of child development. O'Brien sets out to address this gap by
providing what she calls a philosophy of birth and an analysis of reproductive labour.
O'Brien argues that the specificity of reproductive labour lies in its necessary
sociality, and in its integration of the rational individual into biological process. In terms of
its sociality, reproductive labour brings about the reproduction of the human race by
involving two people in each reproductive process and by producing a third. In this sense it
differs both from productive labour and from reproduction in Marx's sense- the making of
a living - which are not necessarily social. An individual can make something and can
sustain herself without the interventions of others, but the human race cannot be reproduced
158 O'Brien, supra note 147.

159 Ibid. at 20.
160 O'Brien identifies the process of reproduction as beginning with ovulation and ending when the
'product', the child, is no longer dependent on others for the necessities of survival; ibid. at 16.
110
through the activity of one person alone. 0'Brien argues that it is this specific aspect of
reproduction which produces a value specific to reproductive labour: synthetic value. 161
Synthetic value is distinguishable from the other kinds of value a child can have, such as
use and exchange value as a potential labourer, or reproducer, and human value as a
subject or object of Jove and trust. Synthetic value "represents the unity of sentient
beings with natural process and the integrity of the continuity of the race... The fact that
synthetic value is the product of reproductive labour power means that the appropriation
without labour of the child is, at the same time, the appropriation of the mother's labour
power, embodied as synthetic value in the child." 162
As well as differing at the level of sociality, reproductive labour is also
distinguishable from productive labour in the degree of its rationality. Productive labour
is the unity of thinking and doing.
Marx famously explained this by saying that
"what distinguishes the worst architect from the best of bees is this, that the architect
raises his structure in his imagination." 163 But women as reproductive labourers differ
from both the bee and the architect. O'Brien explains: "The woman cannot realize her
visions, cannot make them come true, by virtue of the reproductive labour process
in which she involuntarily engages, if at all. Unlike the architect, her will does not
influence the shape of her product. Unlike the bee, she knows that her product, like
herself, will have a history.
161
162
163
Ibid. at 59-60.
Ibid. at 60.
Karl Marx, Capital (New York, 1906) Vol!, Pt III, at 198; as cited in O'Brien, supra note 147at 37
Ill
Like the architect, she knows what she is doing; like the bee, she cannot help what she is
doing." 164
O'Brien argues that there have been two particularly significant moments in the
historical process of reproduction. The first was the discovery of physiological paternity
and the causal relation between impregnation and birth. Through this discovery it became
possible to understand reproductive process as dialectical, and men become aware of both
their inclusion and exclusion from reproduction. Men collectively compensate for the sense
of exclusion by creating what 0'Brien calls 'artificial modes of continuity'. 165 These modes
of continuity, examples she cites are the exercise of proprietary right of appropriation of the
child, and constitutional law, 166 are responses to men's sense of reproductive discontinuity.
This sense of discontinuity arises, according to O'Brien, from the knowledge that after
contributing their sperm men are alienated from the biological reproductive process by
which continuity ofthe species is achieved.
The second significant change in the historical process of reproduction is the
development of contraceptive technology. This technology has transformed reproductive
process by giving women the freedom to choose motherhood. 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, ibid. at 38.
165 Ibid. at 53.

166 Ibid. at 136.
167 As Petchesky notes, the introduction of contraceptive technology did not signal the beginning of women's
exercise of rational control over their fertility. Women had practiced fertility control long before
contraceptive technology arrived. Contraceptive technology brought about a transformation in making
fertility control more reliable and effective than it had been before. Petchesky, supra note 20.
112
pregnant. Both of these changes represent moments when the dialectical relationship
between experience and consciousness, nature and reason, have altered in reproductive
process .
...to
law
as
an
object
form...
For O'Brien the social relations of reproduction are particular in their production
of species continuity. The production of synthetic value requires reproduction. I propose
then that the content which these social relations asks legal form to capture is
reproductive responsibility; subjects have to be constructed as the bearers of
reproductive responsibilities. 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. Legal form responds to the social
relations of reproduction by making reproduction the object of the legal subject's control.
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. Legal form
also brings legal subjects into being by making reproduction their object of control in a
variety of ways.
Most obviously, the pronatalist content of laws which
restrict
contraception,
abortion and sterilization, is one outcome oflegal form's objectification of reproduction in

such a way as to ensure species continuity. These laws directly contradict the notion that
legal form attributes subjects equal right since they deny women the right to control their
fertility. Rather they impose reproductive responsibilities on women by restricting their
ability to opt out of reproduction. A law which conformed to Pashukanis's model of legal
113
form and recognised the equal right to reproductive control would have a differential
impact on actual subjects, however. 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, and thus privileges men. As long as women gestate,
their biological contribution towards the production of a child will always be more than
men's. 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.
Laws which allow women a measure of reproductive control demonstrate the
tension between legal form and the content of reproductive relations. The necessarily social
character of reproduction means that the responsibility side of the right/responsibility dyad
is emphasised. In some instances, as in the case of pro-natalist laws, reproductive relations
have produced through legal form laws which control reproduction by subjecting it to the
collective social goal of human reproduction. In other instances, reproductive and
exchange relations together have produced through legal form laws which allow a measure
of reproductive autonomy. 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. This tension between the objectification of reproduction to
individual and collective goals is also manifest in laws which have differentiated between
women as reproducers. The legalised sterilisation of women deemed mentally unfit to
mother, is a particularly graphic instance of legal fonn responding to reproductive relations
114
by subjecting species reproduction to 'quality control'. 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. As the rational control of reproduction
increases and intensifies through its technological and medical development, the biological
reproductive process becomes more objectified and more liable to the exercise of right.
Just as a sense of individual rational control over commodities is required if the process of
exchanging those commodities is to proceed, so a sense of individual rational control over
reproduction is required if the process of qualitative species continuity is to proceed.
168
Thus legal form instils control over the biological process of reproduction in legal subjects.
One of the problems with O'Brien's theory of reproduction is also interestingly
suggestive for my analysis of legal form. Although O'Brien regarded reproduction as a
dialectical process which changes historically, she also saw it as the "material base for the
social forms of the social relations of reproduction".
169
The problems with this kind of view
of the biological reproductive base as supporting social forms of reproduction become more
obvious when, as noted above, 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. On the one hand, this analysis is useful in
168 O'Brien gets at this point when she says: "Capitalism slowly erodes male supremacy, but it does not
immediately transcend it, for the dialectics of reproduction do not change until corporate technology
attacks and transforms the objective process of reproduction. It does this finally with reluctance, not to
liberate women, but to attempt to adjust the balance of world population and production in an enterprise
with strong racist overtones", supra note 147, at 160.
169 Ibid. at 21.
170 Ibid. at 142.
115
its identification of a patriarchal connection between such anti-abortion laws and a

masculine consciousness which seeks to control reproduction. 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. Secondly, this view denies social
forms of reproduction any autonomy, or any capacity to themselves have material effects on
the base of biological reproduction.
One of the ways around this limitation of O'Brien's theory of reproduction is to
separate out different aspects of social reproduction. While she has provided useful tools
for analysing the biological aspects of social reproduction, 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. 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. 171
The Constitution, which is the primary instrument of the legal regulation of
abortion in Ireland, is both a public legal form and a means of cultural reproduction. It lays
out the functions and roles of the state and its institutions, and obliges the state to protect
certain individual rights and freedoms. 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, supra note 113.

116
from the United Kingdom of Great Britain and Ireland.
172
It confirmed and consolidated
Irish post-colonial status. The Constitution is a mode of cultural reproduction because it

both symbolically invoked an already established national culture, and remade that culture
in a new image. As Raymond Williams has commented: "significant innovations may not
only be compatible with a received social and cultural order; they may in the process of
modifying it, be the necessary conditions of its re-production." 173
In thinking through the public and cultural reproductive aspects of legal form I have
found Foucault's perspective on law a useful resource. Foucault can provide us with the
theoretical resources to explain how legal form uses its past actual expressions to reproduce
itself anew. Through a critical engagement with Pashukanis I have argued that
commitment to the analysis of legal form does not necessitate accepting a singular legal
form, and that in capturing any particular aspect of social relations and making it the object
of a legal subject's control, legal form is capable of great change and contradiction. In the
next section, I argue that a critical engagement with Foucault also demonstrates that legal
form is not unidimensional. Foucault's command-like conception of juridical power fails to
capture the complexity of legal form just as Pashukanis's commodity form conception did.
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.
Whereas an engagement with Pashukanis
172 See Desmond Clarke, "Nationalism, the Irish Constitution, and Multicultural Citizenship", (2000)
51(I) Northern Ireland Legal Quarterly 100-119, for an explication of the 1937 Constitution's nationalist
assumptions. See further: Tim Murphy and Patrick Twomey (eds.), Ireland's Evolving Constitution: 19371997 Collected Essays, (Oxford: Hart, 1998).
173 Raymond Williams, The Sociology of Culture (Chicago: University of Chicago Press, 1995/1981) at 201.
117
demonstrated the necessity of taking legal concepts seriously in seeking to explain law's
role in social relations, 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.
...of
reproduction
public
Law as sovereign command
Foucault conceived of law as the absolute power of the monarch, and generally
juxtaposed it to disciplinary powers such as medicine and science which operate through
techniques of surveillance. Disciplines are "not ensured by right but by technique, not by
law but by normalization, not by punishment but by control".
174
He argues that the
conception of power which has been dominant is one which has a repressive, negative
quality; a quality which he equates with law. The dominance of this notion of power has
obscured the way in which power actually works. Both in itself and as a support for law,
power produces knowledge.
In Discipline and Punish,
111
175
176
History of Sexuality vol. 1,
and Power/Knowledge,
Foucault figures law as premodern in its expression of the monarch's sovereign power.
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. In
Western
174 Michel Foucault, The History of Sexuality (New York: Vintage, 1978), at 89.
175 (London: Allen Lane, 1977).
176 Supra note 174.
177 Colin Gordon (ed.), Power/Knowledge: Selected Interviews and Other Writings !972-1977 (New
York: Pantheon, 1980).
118
societies since the Middle Ages, the exercise of power has always been formulated in terms
of law". 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. 179 Although Foucault believed that the idea of law as
sovereign power outlasted the monarchies, he still saw law in the modem era as having this
premodern form of absolute monarchical sovereignty. In his later work, Foucault
emphasises clearly that he does not mean to indicate that sovereignty is replaced as a
different form of power becomes dominant. 180 He thinks that sovereignty continues to be an
aspect of power relations even after it is no longer the chief mechanism of power.
Foucault's sovereign conception of legal form does not 'wither away', as Pashukanis's
commodity conception of legal form does, once the social conditions which gave rise to it
change. At one level, then, we can read Foucault as referring to the persistence of the once
dominant legal form; its capacity to continue as a 'residual' cultural form, in Williams'
terms. 181 This aspect of Foucault's conception of law can operate as a resource for
understanding how legal form changes over time.
178 Foucault, The Histol)' of Sexuality, supra note 174 at 87, as cited in Hunt, supra note 146, at 270. In
"Truth and Power", in Power/Knowledge, supra note 177, he comments at 119: "In defming the effect of
power as repression, one adopts a purely juridical conception of such power, one identifies power with a law
which says no, power is taken above all as carrying the force of a prohibition."
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, 1989)
180 In Michel Foucault, "Govemmentality", in Colin Gordon, Graham Burchell and Peter Miller, (eds.) The
Foucault Effect (Hempstead: Harvester Wheatsheaf, 1991) at 87-104; he suggests that we should think of
society as a triangular composite of sovereignty, discipline, and govemmentality, and not in terms of three
successive social phases, at I 02.
181 Raymond Williams, supra 173 at 204.
119
Alan Hunt and Gary Wickham point out two ways of interpreting Foucault's
derivation of law from a monarchical power, a power which no longer defines the
democratic fonns of sovereignty found in the industrialized world.
182
First, 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.
In effect, democratic
governments are actually centralized organizations which command their subjects. Second,
Foucault is making, ironically enough, an ideological critique. By clinging to a command
fonn of power in the actual exercise of democratic sovereignty, representative political
regimes mask the operations of disciplinary power. 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, than defenders of contemporary democracies
would care to admit. 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. The continued dominance of the imperative view of
law has the effect of obscuring the way law actually operates in the absence of imperatives.
The descriptive point does resonate with two aspects of Irish abortion law. On the
one hand that fonn of law traditionally thought of as coercive - criminal law - has not been
used against women or abortion providers in Ireland for some time. As recently as March
182 Alan Hunt and Gary Wickham, "Critique of Foucault's Expulsion of Law", in their Foucault and
Law, supra note 146, at 61.
183 See, for example, Power/Knowledge, supra 177 at 105.
120
1997, a woman who claimed that she had had an abortion in a Dublin clinic in
1995 received immunity from prosecution under the 1861 Act.
184
Months later the DPP
declared without explanation that he would not be proceeding with the prosecution of the
doctor in question. On the other hand, constitutional law, usually thought of as a check
on state coercion, has been used coercively against women and their service providers.
Article 40 3 3 has served as authority for injunctions against clinics and student unions
stopping them providing abortion information to women clients, and temporarily against
X delaying her access to abortion services outside of Ireland.
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.
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.
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.
This observation about the descriptive aspect ofFoucault' s idea of law can work
the other way too. As well as acting out in ways which contradict the shape of a legal
form such as the constitution, law may fail to act in ways which the shape of a legal form,
such
184 Jim Dunne, Carol Coulter and Geraldine Kennedy, "Immunity is granted to woman in abortion inquiry",
The Irish Times, 1 March 1997.
185 Ailbhe Smyth, "The Politics of Abortion in a Police State", in Smyth, supra note 25, 138-148; and
Mary Kelly, "Censorship and the Media", in Alpha Connelly (ed.), Gender and the Law in Ireland (Dublin:
Oak
Tree Press, 1992).
121
as rights, suggest it ought to. 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. Thus in Chapters
Four and Five I describe how the competing constitutional rights of woman and fetus have
actually been interpreted .as giving rise to an absolute interest in fetal life in the first
instance, and a relational interest in the woman's life in the second instance. By unearthing
the actual content that has been given to particular legal fmms - such as fetal rights - it
becomes possible to reveal both the general legal form at work and how it changes through
such particular concrete articulations.
Working backwards from the description of legal content, 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. The crisis which the
X case produced caused that post-colonial legal form to change, now constructing
reproduction as an object of relational national control. Thus in the aftermath of X
particularly victimized women are permitted a right to abortion because of their
particular circumstances and relationships, not in their own right. In both pre-X and
post-X formulations, the fact that the woman/fetal relationship is formally constructed
through competing rights, is not enough to explain the legal content that has been
attributed to those rights, or the actual legal form that has shaped that attribution.
The ideological point of Foucault's claim - that law derives from the sovereign
power of the monarch - asks us to unearth the workings of power that are hidden and
legitimated by such a claim. I shall shortly take up the question of how Foucault wants to
122
direct his audience's attention to the generative aspects of power which he regards as
external to law. 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. 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. Feminist critiques of abortion law, for example, have
argued that decriminalization, the removal of sanctions against abortion, has not
removed law as an obstacle to abortion access for women.
Legal stipulation of the conditions under which women may access abortion as an
insured health service, or under which the health professions may regulate themselves, are
examples of legal mechanisms which affect women's use of abortion services without using
a command form of law. If abortion is not provided as a publicly insured health service, if
hospitals do not provide health services which do not conform to their ethical code,
women's access to abortion is compromised.
187
The power-conferring aspect of law- the
power to insure or not, to self-regulate or not - has effects that are not explicable in terms of
sovereign commands.
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. Focussing on the facilitative
form and its use allows intellectual space for a more complex relationship between Jaw, state and class. It
allows for the possibility of the relative autonomy of the state by demonstrating how law can be manipulated
after
the event, despite rather than because of Jaws made and enforced by the state. Legislators and enforcers do
not need to have been captured by big business, their intentions need not be underhand, for law to be
ineffective in practice. The subjects of Jaw and the profession that serves them can quite legitimately make
it
so regardless", McBarnet, "Law and Capital" supra note I 15, at 237.
187 Brodie et al., supra note 17.
123
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.
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. 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.
188
There are
other sorts of laws, what Hart called power-conferring rules, which permit people to engage
in certain activities and regulate the consequences of that engagement, but which cannot be
said to require such engagement in the manner of commands. Foucault's conception of law
as sovereign command is useful in so far as it directs our attention to a prominent aspect of
law, but, if read literally, it does not encompass the features of law which modern analytic
jurisprudence has identified as needing accommodation within legal analysis. Through
Hart's distinction between duty-imposing and power-conferring
rules
the
limits
of
Foucault's monist conception of law are revealed.

According to Hart, law is a system of primary and secondary rules. Primary rules
are duty imposing rules, they require people to behave or not behave in certain ways. Hart
notes that typically primary rules prohibit behaviours such as murder, theft and rape in
order that people can live together without destroying each other. Secondary rules are
power conferring rules which facilitate people who wish to engage in certain activities, such
as making a will or getting married, but they do not require people to do those activities in
188
HLA Hart, The Concept of Law (Oxford: Clarendon Press, 1961) 18-76
124
the way that primary rules would. Certain kinds of secondary rules confer powers with
regard to rules themselves. These secondary rules are called rules of recognition, rules of
change, and rules of adjudication. They provide a means of, respectively, recognizing rule
validity to remove uncertainty as to the validity or invalidity of certain social rules,
changing rules to prevent stasis and allow for reform, 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. In other words, primary rules on
their own are not law, according to Hart's schema. Law comes into existence once you
have a legal system which provides for the recognition, change and adjudication of rules.
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.
The Foucauldian association of negative, 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. While many feminists have found Foucault's conception of micropower useful in its complication of power's processes, they also express a need to
supplement this notion of power with some means of identifying differential, aggregate,
oppressive levels of power. Diamond and Quinby, for example, 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. Although his analyses remind us that in contemporary society power is
not monolithically held by men, feminists have demonstrated that the kind of
power that Foucault associates with the sovereign's right of death - a power
operating
125
primarily within kinship systems that is 'essentially a right of seizure: of things,

time, bodies and ultimately of life itself - remains vested in individual men and
men as a group. In short, feminist analyses should help Foucauldians see that
these two regimes of power co-exist and often intertwine in contemporary
189
society.
The opposition of generative power to legal power at work in Foucault needs to be

problematized, therefore, if we are to draw from his work in articulating both the
difference that law makes to the exercise of power, and the variety of dimensions to
power in contemporary societies.
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. 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. 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.
Thus when we consider the conception of law which informs Foucault's work, we ought to
consider his purpose in characterizing law as the monarch's sovereign power. The reason
Foucault insists that we have to cut off the king's head, that we have to let go of the
sovereign notion of law, is because he wants to emphasise the importance of recognising
power at the local, micro level. His argument that law is displaced by discipline and that
189 Irene Diamond and Lee Quinby, (eds.), Feminism and Foucault, (Boston: Northeastern Press,
1988) at
xiv.
126
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. 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. 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.
If we refuse the necessary connection between law and repressive forms of power
that are posited in Foucault, however, we can put some of his insights to work in clarifying
law's micro processes of power. 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. He
says: "In fact power produces; it produces reality; it produces domains of objects and rituals
of truth. The individual and the knowledge that may be gained of him belong to this
production".
190
Power produces, even if it is also produced. Law as small power is always
present, it cannot be neutralized or erased. Resistance is not external to law as small power,
rather resistance to power occurs alongside power itself. The micro-physics of power are
experienced in everyday life activities, rather than primarily through one's interaction with
centralized aggregate power structures such as the legal system. Power is everywhere, it is
Foucault, Discipline and Punish, supra note 175 at 144; as cited in Hunt and Wickham, supra note 146 at
19
16.
127
at work in every situation, it is not possible to remove or erase power, it is not true that one
person can have all the power, while another has none.
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. 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. 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. As many feminists have
argued, 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, but not others. 191
A potential problem, however, with the idea of law as micro-power lies in the
relationship between power and resistance. 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, and will respond differently to the exercise of power.
Foucault says: "there are no relations of power without resistances; the latter are the more
real and effective because they are fonned right at the point where relations of power are
exercised". 192 Identifying resistance as the necessary companion of power does help us
191 For example, Barrett and Mcintosh comment: "Foucault's focus on the discursive construction of
things by words, on the importance of what it is possible to say at a particular moment, is a perfect
framework for looking at familialism as a discourse with normative powers", Michele Barrett and Mary
Mcintosh, The Anti Social Family (London: Verson, 1991/1982) at 169.
192 Foucault, Power/Knowledge, supra note 177 at 142.
128
recognize how power creates the conditions for resistance. But if resistance is reduced to
an automatic effect of power, the power/resistance relation risks becoming circular and
enclosed.
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. It makes
sense to think of resistance as something which power makes possible, 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. Thus one can read
Foucault's point as claiming that potential resistance is formed right at the point of power's
exercise, 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. While
potential resistance is always a feature of power relations, actual resistance depends on
some sort of contextual response to those relations.
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, ideologically and discursively.
Descriptively, a once dominant legal form can continue to have a residual effect. The form
of law as a sovereign command may fail to accurately describe the collectivity of legal
forms as they actually currently exist. But that legal form may continue to describe certain
legal aspects of contemporary societies even though the historical conditions of absolute
129
monarchy which produced such a legal form no longer exist. Similarly, the legal form of
the Constitution as the foundation of nationhood continues to exercise influence even
though the historical conditions of decolonization have passed. These residual effects of
historical legal forms can operate ideologically to distract attention from more actually
dominant external effects on Jaw. For Foucault, the supposed sovereignty of Jaw disguises
the actual effects of discipline. Similarly, the national authority of the
Constitution
disguises the effects of its own recognition of the supremacy of European Community law,
or example.
Thirdly, 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. As a post-coloniallegal form, the Constitution sets
its own framework of meaning. 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 process of constitutional interpretation takes place within a discursive
framework which takes that history for granted, unlike the processes of public
argumentation.
As well as
operating discursively externally, the Constitution also operates discursively internally. As

the potential for resistance within legal form concretizes through such processes as public
reaction against the High Court in the X case, the resulting changes are reconciled
discursively by the production of a new framework of interpretation, such as paternalism in
this instance.
130
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. The adoption of abortion as an object of constitutional
regulation is itself a means of social reproduction given this remaking of the national
subject. Reproduction's inherently social character makes abortion particularly suitable for
this task. But the impetus behind the adoption of abortion as an object of constitutional
regulation was not derived from a change in biological reproduction, as O'Brien would
have us believe, nor from some internal legal development. As I argued in Chapter Two,
the Pro-Life Amendment was adopted in response to a perceived cultural threat to Irish
values, one which played on post-coloniality.
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. 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. 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.
By means of a critical engagement with both Pashukanis and Foucault I have
showed the limitations of their respective singular conceptions of legal form. Neither the
commodity form nor the sovereign command are capable of capturing all that legal form
can be. But once understood as particular examples of legal form, they can provide clues
to
131
the abstract shape of legal form and to the mechanisms by which legal form changes as it
moves between the abstract and the concrete. Through my critique of Pashukanis I argued
that if we generalize from his commodity form, as the means by which the legal subject
comes into being as a property owner with rights over an object, we can define legal form
as the means by which legal subjects are constituted as having rational control over objects.
In this way, 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, or reproduction. 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, and by
creating its own framework of reference to manage the tension between legal content and
social content. 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. Post
X, 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.
132
4. Post-colonial Legal Form, 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- Life Amendment in particular have a 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 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', the courts chose to interpret
the fetal right as if there was no need to consider conflicting interests. Through
judicial interpretation the formal recognition of competing rights becomes the absolute
protection of fetal life. 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.
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. In its angst to prevent women from
getting the means to contact extrajurisdictional abortion clinics, the judiciary betray a fear
that something fundamental to Irish culture is threatened by the idea 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. In the first place,
when fetal life becomes, through judicial interpretation, a value which cannot be violated
under any circumstances, it is produced as a marker of cultural authenticity. In the second
place, when the fetal right to life is interpreted as a public interest it is produced as a postcolonial hybrid. The absoluteness of the public interest masks its hybridity, which has to be
effaced
133
in the interest of portraying the interest in 'unborn' life as a pure symbol of Irishness. But
the hybridity of the fetal right to life - its post-colonial moulding of rights discourse
towards an authoritarian nationalist end - 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.
I argue that the courts' failure in Attorney General v. Open Door Counselling and
Dublin Well Woman
193
and in SPUC 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, particularly given that the text of Article 40 3 3, the usual principle of
constitutional interpretation, and the relevance of other legal rules, did not necessitate such
an interpretation. The Supreme Court's acceptance in 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, 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, is evidence that the court identified the private interests of a fundamentalist
group with the public interest in enforcing the law. 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.) v. Open Door Counselling Ltd. and Dublin Well Woman Centre Ltd. [1988] I.R. 593, hereinafter
referred to as Attorney General v. Opendoor.
194 Society for the Protection of Unborn Children (Ireland) Ltd. v. Grogan and others. [1989] I.R.
753, hereinafter referred to as SPUC v. Grogan.
195 Society for the Protection of Unborn Children (Ireland) Ltd. v. Coogan and others. [1989] I.R. 734,
hereinafter referred to as SPUC v. Coogan.
134
law. 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.
In the first case, Attorney General v. Opendoor, 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, telephone
numbers and addresses of abortion clinics abroad to women seeking their counselling
services. 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. The Supreme Court injunction was more restrictive than the one issued at
trial level in I 986 by Hamilton P. (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.
In the second case, SPUC v. Coogan,198 the Supreme Court overturned the decision
of Ms. 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. However, 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. Fitzpatrick and others [ 1961] I.R.
345. Thus, unlike in other jurisdictions, there is no need to establish the involvement of a 'state action' in
order to claim a violation of constitutional rights. See John Temple Lang, "Private Law Aspects of the Irish
Constitution" (1971) 6 Irish Jurist 237.
198 Supra note 195.
135
constitutional rights. 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'. 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. In a private capacity and without the co-operation
of the Attorney General, SPUC was seeking an injunction to prevent UCDSU publishing
information about abortion services abroad in their student union guidebooks.
However, in the Supreme Court, 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. The case was
remitted to the High Court to deal with the interlocutory injunctions, at which point the
plaintiff, SPUC, decided to seek injunctions against the officers of three students unions:
Union of Students in Ireland (USI), Trinity College Dublin Students' Union (TCDSU) as
well as the defendants in the original request for an injunction: UCDSU, in SPUC v.
Grogan.
199
In the third case, SPUC v. Grogan,
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.
136
guidebooks. In the High Court, Carroll J. declined to grant the interlocutory injunction
sought, 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.
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. The defendants' argument was based on the claim that the freedom of
movement of services between Member States, protected by Articles 59 and 60 of the EEC
Treaty, implied a right to give and receive information about the availability of abortion
services lawfully provided outside the State. On appeal, 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, which it could not alter, and the appealable decision not to grant
the injunction. 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.
200
A Fetus's Absolute Right to

Life
In each of these three cases the Irish judiciary, with the exception of Ms. 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; see: Society for the Protection of the Unborn
Child v. Grogan and others, [1998] 4 I.R. 343.

137
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 asserting, without substantively
reasoning, 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. Absolutism
insists that particular values have absolute weight in all contexts, that they impose positive
obligations rather than simply negative ones, and that everyone must observe such values.
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.
Therefore, 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',
and that the latter right may be qualified by such interests. The fact that Article 40 3 3
adopts positive rather than negative terminology - it requires the State to act for the
protection of fetal life and not merely to refrain from acting against fetal life- ought to
increase, rather than decrease, judicial concern for how such State action might be
qualified. In other words, because Article 40 3 3 contemplates that the State might have
to 'do' something, rather than to 'not do' something, it envisages that the State has to
take responsibility for the changes it makes to the status quo through its positive action,
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", ( 1988) l 0 Dublin University Law Journa/71.
138
affect other legal interests. If such an action were to have the effect of offending another
constitutional interest, such as women's rights, then the court might be justified in finding
that the action was more than what was practicable in defending the fetal right to life.
Furthermore, other fundamental rights provisions of the Irish Constitution adopt more
absolutist language that Article 40 3 3.
202
For example, Article 41 1 1 refers to the
'inalienable and imprescriptible rights' of the family, rights which the Supreme Court has
held to be restrictable.
203
If the courts can qualify rights which are framed in such
unqualified language, 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.
In Attorney General v. Opendoor, SPUC v. Coogan or SPUC v. Grogan, 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. In the High Court in Attorney General v. Opendoor, Hamilton P. declared: "I
do not, in the circumstances of this case, 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".
On
204
appeal to the Supreme Court, Finlay C.J.

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, 1996) at 215 where the
Review Group argues that the constitution's qualifying clauses need an overhaul. They note further that:
"there are few rights- however fundamental- which can be regarded as absolute or not subject to
qualification".
203 Murray v. Ireland [1985] IR 532. 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.
204 Supra note 193 at
617.
139
obtaining of abortion outside this jurisdiction was in any way confined to, or
especially directed towards, 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, and
this portion of that sub-section did not therefore arise for interpretation or decision
205
in this case".
Once the Supreme Court held that there was no need to have 'due regard to the equal
right to life of the mother', given that there was no particular woman claiming that right
before the court, 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. 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'. While the
judiciary expressed no hesitation in enforcing the private right of the fetus, they saw no
need to even consider how the private right of the woman might limit the interest in
protecting fetal life. Interestingly, in the case which eventually lifted the injunction on
appeal in March 1997, 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.
206
205 Ibid. at 621.

206 Mrs. Justice Denham, the first woman appointed to the Supreme Court, and Mr. Justice Keane, SPUC v.
Grogan, supra note 200 at 19 and 36 respectively. Chief Justice Hamilton, and Justices Barrington and
Blayney were of the view that the order for the injunction could not be confmned on appeal, because the law
as it now was (i.e. post I 995 Act's legalization of abortion information) did not so require.
140
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, the courts also disregarded the significance of the factual circumstances
of pregnancy for the interpretation of the legal interests raised.The factual context of
pregnancy means that a woman sustains a fetus within her body during pregnancy. Any
action taken on behalf of or towards the fetus will necessarily affect the pregnant woman.
Any defence of fetal legal interests will necessarily impact on a pregnant woman's
interests.
207
If one considers how to defend a fetal right to life in isolation from a woman's
right to life, then one fails to acknowledge and take responsibility for the way in which the
former is dependent on the latter. However, 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 judges denied a woman's role in pregnancy at the same time as they relied on her to
sustain that pregnancy. 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, and dependence on, the body of the woman is
never addressed. In this way the courts obscured the significance of birth as the moment
when the fetus emerges from the woman's body, establishes an independent existence and
207 Interestingly, 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; Elizabeth Porter,
"Culture, community and responsibilities: Abortion in Ireland", ( 1996) Sociology: The Journal of the
British Sociological Association 279-298.
141
becomes capable of developing relationships with people other than the pregnant woman. 208
For example, in SPUC v. Grogan Walsh J. comments:
The destruction of life is not an acceptable method of birth control. The
qualification of certain pregnancies as being "unwanted" is likewise a totally
unacceptable criterion. The total abandonment of young children or old persons or
of those who by reason of infirmity, mental or physical, or those who are unable to
look after themselves too often occurs throughout the world. There is clear
evidence that they are unwanted by those who abandon them. That would
however provide no justification for their elimination. 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. 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. Concern for the fetus is necessarily mediated through the
woman within whom it is nourished. While one might have sympathy with Walsh J.'s
protest at the lack of care and respect for those who are unable to look after themselves, 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.
208
See further: Mary Anne Warren, "The Moral Significance of Birth", in Helen Bequaert Holmes and
Laura
M. Purdy (eds.) Feminist Perspectives in Medical Ethics (Bloomington: University oflndiana Press, 1992) 198215.
209 SPUC v. Grogan, supra note 194 at
767.
142
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. They construed the fetal right to life as if it was an unrestricted
right to life. In the High Court in Attorney General v. Opendoor, Hamilton P. 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, 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.
In failing to consider how the fetal right to life might be qualified Hamilton P. interpreted
this interest as a stronger one that the ordinary right to life. Apart from finding it necessary
to assert the right to life of the unborn after birth, Hamilton P. extended to the fetus rights
which persons do not usually have. 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. So, on this view, X could be under an obligation to guard Y
against a threat to Y's existence posed by Z, whether or not Z acted on that threat. On this
interpretation, 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. Given the sweeping nature of
this interpretation one would consider that Hamilton P. would explain why he considered
that the fetal right to life should impose such an obligation. But Hamilton P. offered no
explanation for why he considers it necessary to impose an obligation on the pregnancy
210
Attorney General v. Opendoor, supra note 193 at 617, emphasis added.

143
counselling centres not to threaten the existence of the fetus by offering information which
a pregnant woman might or might not act upon. Not only did Hamilton P. fail to consider
how the right to life of the unborn might be qualified, he attributed it superior value than a
right to life might otherwise have. Thus the right to life of the unborn was attributed
absolute value; 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.
In the Supreme Court Finlay C.J. said:
The performing of an abortion on a pregnant woman terminates the unborn life
which she is carrying. Within the terms of Article 40, s. 3, sub-s. 3 it is a direct
destruction of the constitutionally guaranteed right to life of that unborn child. 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,
outside the State which, if availed of, would have the direct consequence
of
destroying the expressly guaranteed constitutional right to life of the
211
unborn.
Again, Finlay C.J. asserts that 'it must follow from' the right to life of the unborn that
there could not be an implied right to abortion information, but does not provide any
explanation as to why this must be so.
His reference to 'if availed of indicates that
a threatened potential, rather than a threatened actual, breach of the fetal right to life is
sufficient to warrant the limitation of other constitutional interests when enforcing the fetal
right to life. In SPUC v. 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. Opendoor, ibid. at 625, emphasis added.
144
constitutional rights but totally to destroy them". 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. In SPUC v. Grogan, Walsh J. 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". 213 He assumed, along with the rest of the Supreme Court, that the
issue in question is the existence of life before birth, rather than the nature of the legal
claims which derive from the recognition of a fetal right to life. 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, in which a right to life
was constitutionally vested, conferred an unrestricted right to life.
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. As Judith Jarvis Thomson has argued in her application of the 'good
Samaritan' argument to abortion,214 recognizing a fetal right to life does not mean that
it is never justifiable to kill the fetus. Thomson argues that even if one considers that
the fetus is a person, a pregnant woman is not obliged to allow it the use of her body.
A pregnant
woman's interest in control of her body may justify a denial of the right to life of the fetus.
212 SPUC v. Coogan, supra note 195 at

743.
213 SPUC v. Grogan, supra note 194 at

766.
214 Judith Jarvis Thomson, "A Defence of Abortion", (1971) 1 Philosophy and Public Affairs
47.
145
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'. 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, Thomson illustrates the di;;tinction between determining that X
ought to do something for Y and determining that Y has a right against X to do it. Thomson
claims that "the right to life consists not in the right not to be killed, but rather in the right
not to be killed unjustly". 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. Within the liberal democratic tradition which
informs the Irish Constitution's adherence to fundamental rights, the legal recognition of a
right to life is not usually considered as conferring an absolute right to life. The relevant
question is not whether the right to life was violated, but whether it was unjustifiably
violated.
This position is supported in law by, for example, the recognition that no-one is
under an obligation to donate body organs where they are needed for the survival of another
person, not even a parent to a child. However, 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. This interpretation of the fetal right to life conflicts with the more general policy in
215 Ibid. at 57.

146
law which recognizes the hann that may be done in imposing a positive obligation to save
someone's life. Hence in McFall v. 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. 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 ... 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. To do so would defeat the sanctity of the individual, and
would impose a rule which would know no limits, and one could not imagine
where the line would be drawn.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.
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. Other constitutionally endorsed interests, such as
women's constitutional rights, should have informed the interpretation of Article 40 3
3. The Courts normally
216 (1978) 10 Pa.D. & C. 3d 90, cited in Janet Gallagher, "Prenatal Invasion and Interventions: What's
wrong with fetal rights?" (1987) 10 Harvard Women's Law Joumal9. See Susan Bordo, "Are Mothers
Persons? Reproductive Rights and the Politics of Subjectivity" in her Unbearable Weight: Feminism.
Western Culture and the Body (Berkeley: University of California Press, 1993) 71-97. Bordo contrasts cases
like McFall v. 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, by contrast, is her biological, purely mechanical role in preserving the life of another", at 79.
217 McFall v. Shimp, ibid.
147
apply the doctrine of hannonious interpretation, a kind of principle of constitutional

coherence, when construing constitutional provisions. 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, but should be construed as to hannonise with the other parts. This
doctrine is no more that a presumption that the people who enacted the
Constitution had a single scale of values, and wished those values to penneate
218
their charter evenly and without internal discordance.
Although the Supreme Court has held that where a hannonious interpretation is not
possible it may be necessary to hierarchize constitutional rights, 219 the first task of the
Court is normally to seek a harmonious 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, and to consider what other constitutional
provisions meant for its interpretation. However, 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. The constitutional rights of
bodily integrity,
220
equality/
21
218 J.M. Kelly, The Irish Constitution (Dublin: Jurist Publishing, 1984) at 299.
219 See The People v. Shaw [1982] I.R. 1 where the right to life was held to prevail over the right to
220
liberty.
In Ryan v. Attorney General [1965] I.R. 312 the Supreme Court affirmed Kenny J. 's finding
in the High Court that there was a right to bodily integrity, which he held was one of a residue of personal
rights contemplated by Article 40 3 1; which provides: "The State guarantees in its laws to respect, and,
as far as r:racticable, by its laws to defend and vindicate the personal rights of the citizen".
21
While the Irish Constitution does explicitly recognize a right to equality in Article 40 1, its limitations are
obvious: "All citizens shall, as human persons, be held equal before the law. This shall not be held to mean
that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of
social function". 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", Marie
Fox and Therese Murphy, "Irish Abortion: Seeking Refuge in a Jurisprudence of Doubt and Delegation",
(1992) 19 Journal of Law and Society 454 at 462.
148
privacy,
222
and freedom of expression
223
were all relevant to the issue before the courts.
However, these rights were barely mentioned and, when they were, they were subordinated
to the fetal right to life without any substantial consideration of why they should be so
subordinated. Friedman has argued that the courts were wrong in Attorney General v.
Opendoor to subordinate freedom of expression, protected by Article 40 6 I, to the right to
life of the unborn. He suggests that as freedom of expression is a value fundamental to

democracies, it should have been considered as qualifying the fetal right to life. 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".
224
In Attorney General v. Opendoor Hamilton P. said without providing an

explanation for his conclusion:
The qualified right to privacy, 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, which is acknowledged by the
Constitution of Ireland. 225
222 In McGee v. Attorney General, supra note 35, a right to marital privacy was recognized. In Norris
v. Attorney General, [1984] I.R. 36, the Supreme Court implicitly accepted that the plaintiff had an
individual right to privacy.
223 Article 40 6 1 i provides "The State guarantees liberty for the exercise of the following rights,
subject to public order and morality. The rights of the citizens to express freely their convictions and
opinions. The
education of public opinion being, however, a matter of such grave import to the common good, the State
shall endeavour to ensure that organs of public opinion, such as the radio, the press, the cinema, while
preserving their rightful liberty of expression, including criticism of Government policy, shall not be used
to undermine public order or morality or the authority of the State. The publication of utterance of
blasphemous, seditious, or indecent matter is an offence which shall be punishable in accordance with
law".
224 Friedman, supra note 201at 78.
149
In the Supreme Court Finlay C.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".
226
It is interesting to note that
in a different context Hamilton P. was much less inclined to play down the significance of
the right to privacy. In Kennedy and Arnold v. 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,
namely, a sovereign, independent and democratic society. The dignity and
freedom of an individual in a democratic society cannot be ensured if his
communications of a private nature, be they written or telephonic, are deliberately,
228
consciously and unjustifiably intruded upon and interfered with.
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. The courts
compromised other constitutional interests in order to absolutely protect the fetal right to
life. The courts never even got to the point of weighing constitutional concerns against
each other. Rather they dismissed the relevance of any concern other than the right to life
of the unborn.
226
Ibid.
at
625.
227 [1987] I.R. 587. 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.
228 Ibid. at
593.
150
Disregard for a public interest in womanhood; 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. They relied on this public interest to justify the order for
injunctions prohibiting the distribution of abortion information. For example, in SPUC v.
Coogan Walsh J. 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".
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. But
if there is a public interest in fetal life there is also a public interest in women's life, an
interest which also entails protecting women's health and welfare. As Walsh J. also said
in G. v. An Bord Uchtala,
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, the right to preserve and defend that life (and to have preserved and defended)
that life, and the right to maintain that life as a proper human standard in matters of food,
clothing and habitation." However, the courts ignored the possibility that a public interest
in women's lives, health and welfare might justify the provision of abortion information.
When women's health was raised as a possible justification for not restraining pregnancy
counselling services in Attorney General
v. Opendoor, Finlay C.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, in particular, did not provide the
229 SPUCv. Coogan, supra note 195 at743.
230 [1980] I.R. 32 at 69; An Bord Uchtala means the Adoption Board.
151
identification, 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, who had decided upon the option of abortion, would
succeed in obtaining an abortion in England, and probably in circumstances
less advantageous to her health. No evidence was adduced to support this
contention. There are no grounds for inferring it from any of the facts which are
agreed as the basis for the trial of the action. Even if it could be established,
however, it would not be a valid reason why the Courts should not restrain the
activities in which the defendants were engaged .... I am satisfied, therefore, 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. 231
At one level, 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. Even if the evidence at the time did not support an empirical argument that
women's health justified refusing to restrain the defendants' activities, a normative
health based argument could have. Women's health is a value to which the Court should
properly have had regard, perhaps through reference to the right to bodily integrity, in
determining the degree of protection that the fetal right to life merited. 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.
At another level, 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. Given that women were travelling in their thousands to avail of abortion
services abroad, the Court was aware that the injunction was unlikely to do much in
231 Attorney General

added.
v. Opendoor, supra note 193 at 624, emphasis
152
stemming the 'destruction' of fetal life. 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, since women would be more likely to
present for abortion later in their pregnancies,
232
and possibly to less reputable services.
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. While granting the order allowed the Court to
be seen to be protecting fetal life, it actually would have little effect in protecting that life,
and would make matters worse by making abortions at a later stage in pregnancy more
likely. 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. In answering, or avoiding, the defendants' argument about women's
health with the claim that ineffectiveness of the order was not a justification for not issuing
it, the Court left women's health out of the constitutional picture.
In SPUC v. Coogan Walsh J. commented: "One of the fundamental political rights
of the citizen under the Constitution, indeed one of the most valued of his rights, is that of
access to the courts. 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".
233
Apart from implying that
232 See Catherine Conlon, The Reality of Abortion for Irish Women: An Analysis of the Pregnancy
Counselling Service Offered by the Irish Family Planning Association, M.A. thesis, Women's Studies,
University College, Dublin, Ireland, 1994; and Mahon et al., supra note 9.
153
we should consider the 'unborn' as a citizen, Walsh J. was clearly of the view that the
pregnant woman is less affected by the provision of abortion information than the fetus.
While the implications of a woman's constitutionally endorsed rights of privacy, equality,
free expression and bodily integrity are judicially ignored, no chance is lost to assert other
legal rights on behalf of the fetus, such as the right of access to the courts, in order to
consolidate the constitutional prioritization of fetal life. To the extent that a woman's rights
are considered in this jurisprudence, the fetus still assumes centre stage, as this obiter dicta
of Walsh J. in SPUC v. Grogan demonstrates:
When a woman becomes pregnant she acquires rights which cannot be taken
from
her, 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. 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.
Thus a pregnant woman's rights and responsibilities are defined by reference to her
pregnancy. A pregnant woman is no longer considered as a woman but as a pregnancy.
Furthermore, Walsh J. 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. 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. 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.
154
pregnancy. Not only did he implicitly render the woman's equal right to life devoid of
substance, he further obliged her not to endanger the fetus. This could severely restrict a
woman's freedom during pregnancy as behaviour as ordinary as travelling in a car, for
example, could be interpreted as endangering a fetus.
Disregard for other relevant

law
In A G v. Opendoor, Hamilton P. was of the view that the relevant statute law
afforded the fetal right to life statutory protection from the date of its conception.
235
However, he justified this assumption simply by reference to sections 58 and 59 of the
Offences against the Person Act, 1861.236 He inferred that since the 1861 statute no longer
referred to the woman as being 'quick with child', as the 1803 statute
237
had, this meant that
the protection of the fetus in the womb dates from conception and not from quickening. He
failed to take into consideration that the 1861 Act could be interpreted as making abortion
lawful in certain circumstances, and he failed to explain why conception, as distinct from
viability, or birth, should be the relevant criterion for assessing when an abortion was an
unlawful abortion. The general failure of the courts to clarify their interpretation of the
'unborn' when enforcing its right to life, and this particular reference to conception as the
point from which protection begins, is further evidence of their absolutist approach. The
courts interpreted the right to life of the 'unborn' as if it could limit other constitutional
rights at any stage of pregnancy, a position which could also have implications for the legal
235 AG v. Opendoor, supra note 193 at

598.
24 & 25 Viet. c. 100.
237 43 Geo. III, c.
58.
236
155
use of some forms of contraception. 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.
The relevant statutory provisions on abortion
Offences against the Person Act,
provide:
238
are sections 58 and 59 of the
1861, which
Every woman, being with child, who with intent to procure her own miscarriage,
shall unlawfully administer to herself any poison or other noxious thing, or shall
unlawfully use any instrument or other means whatsoever with the like intent, and
whosoever, 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, to be kept in penal servitude
for life.
Whosoever shall unlawfully supply or procure any poison or other noxious thing,
or any instrument or thing whatsoever, knowing that the same is intended to be
unlawfully used or employed with intent to procure the miscarriage of any woman,
whether she be or be not, with child, shall be guilty [of an offence] and being
convicted thereof shall be liable... [to imprisonment for a term not exceeding five
years].
Section 10 of the Health (Family Planning) Act, 1979
239
provides:
Nothing in this act shall be construed as authorizing a) the procuring of an

abortion, 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, 1861.
238 For a review of the historical development of the criminal prohibition of abortion, see: 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 History 20. See also 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).
239
Acts of the Oireachtas, (Ireland) no. 20.
156
As a matter of statutory interpretation section 58's prohibition of unlawful abortions

implies that abortion may be lawful.
240
As there is no direct Irish authority on the issue,
an Irish court would consider a relevant decision of another common law

jurisdiction
in determining the
significance of 'unlawfully'. In R. v. Bourne,
241
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.
He also determined that an
abortion performed on the grounds that the pregnancy was likely to make the woman a
'physical or mental wreck', was performed for the purpose of preserving her life. 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. Macnaghten J. 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, 243 1929,
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".
If Macnaghten J.'s interpretation of the word 'unlawfully' was dependent on the
1929 Act, then this interpretation would probably not be accepted as informing Irish law
given that the 1929 Act does not form part of Irish law. However, it has been argued that
this is not the case, and that, at minimum, terminations of pregnancy performed in cases of
240 See M.J. Findlay, "Criminal Liability for Complicity in Abortions Committed outside Ireland",
(1980)
Irish Jurist 88 at 89; and the Report of the Constitution Review Group, supra note 202 at 276.
241 Supra note
31.
242 Ibid. at
243
691.
19 & 20 Geo. V c.
34.
157
cancer of the uterus and ectopic pregnancy are lawful abortions under the application of
the 1861 Act in Ireland.
244
Macnaghten J.'s attribution of importance to the word
'unlawfully' in section 58 was independent of the provisions of the 1929 Act, and he used
the proviso of section 1 of that Act because he believed it expressed a meaning that was
compatible with section 58, not necessarily definitive of it. Also, 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'. In fact,
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".
245
However, the possibility of abortion
being lawful was simply not

entertained in the first cases to be litigated on Article 40 3 3 - Attorney General v.
Opendoor, SPUC v. Grogan or SPUC v. Coogan.
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, the Supreme
Court assumed that, rather than explained why, fetal life merits this degree of protection.
There was no substantive discussion of what it means to vindicate the right to life of the
unborn, no regard for the context of pregnancy in considering the 'as far as practicable'
limitation, and no consideration of women's interests by reference to 'the equal right to life
of the mother'. The legal consequences of defending a fetal right to life are not as selfevident as the Court appears to have assumed. Determining how to vindicate a right to life
244 See Whitty, supra

245 Ibid. at 858.
note 26 at 862.
158
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
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
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
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
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
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
In his concurring opinion Walsh J. 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... 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.
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. By constructing SPUC as guardians of the public interest in fetal life, these
judges conflated that public interest with the private interest of an absolutist pro-life group.
Walsh J. 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, 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.
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.257
Here we can see how Walsh J. 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'. He
implies that if SPUC had not initiated this case the public interest would have gone
undefended, a situation which he finds intolerable. SPUC's intentions are presumed to be
256 Ibid.
at 743, emphasis
added.
257 Ibid.
at 743; emphasis
added.
164
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. Walsh J.
comments further:
In the present case the plaintiff has, in my opinion, 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. 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.
While SPUC's role in the proceedings is justified in terms of its 'genuine interest' in the
protection of unborn life, the student unions 'genuine interest' in serving the needs of
pregnant women merits no consideration. 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. In his dissent from the majority of the court McCarthy J.
commented:
If as submitted on behalf of the Society, the whole nature and quality of Irish
society is affected by the right, it would appear to be a public right, ordinarily in
the province of the Attorney General ... In my view, it is the Attorney General,
and he alone, who can in such a case validly pursue that claim to protect the right
of the unborn to judgment ... In my view, the Society is in no better or worse a
position than any other prospective litigant. I confess to a feeling of great unease
at the prospect of any person or group of persons, however well intentioned, being
held at law competent to maintain an action of this kind without the intervention of
the Attorney General, despite his offer of assistance. Of far greater import is the
claim by the Society, as a preliminary to such action, to demand and receive an
undertaking from a citizen or a group of citizens as to their future conduct. The
259
implications to a free society of such a claim are alarming.
258
Ibid. at
747.
259
Ibid. at
751.
165
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.
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. The Irish judiciary, with the exception of Carroll J., reacted with great hostility to
the idea that Community law was relevant to the interpretation of Article 40 3 3. 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. As the neo-colonial intervention ofEC law was excluded in order to maintain national
control, the value of fetal life was again produced as an
absolute.
The defendants in Attorney General v. Opendoor and in SPUC v. Grogan argued
that women's access to abortion information was protected by EC law if not by domestic
law. 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. However, with the exception of Carroll J. in the High Court in SPUC v.
Grogan, the Irish courts denied the relevance of Community law by interpreting the issue
166
before them
as a domestic,
national
matter
concerning
practices
occurring
exclusively within the Irish State. In so doing they strayed from their more usual policy
of following the rule that where EC law applies it takes precedence. Usually the fact
that the cases before the courts involved transborder issues would mean that the courts
would consider the application of Community law. On the issue of abortion, however, 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.
In Attorney General v. Opendoor, Hamilton P. 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. 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. 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. On appeal the Supreme Court also refused to make a
reference for a preliminary ruling. The Court did so on the grounds that what was being
restrained was assistance, rather than information, to pregnant women to travel abroad.
260
Article 177 EC provides: "The Court of Justice shall have jurisdiction to give preliminary rulings
concerning: (a) the interpretation of the Treaty; (b) the validity and interpretation of acts of the institutions of
the Community; (c) the interpretation of the statutes of bodies established by an act of the Council, where
those statutes so provide. Where such a question is raised before any court or tribunal of a Member State,
that court or tribunal may if it considers that a decision on the question is necessary to enable it to give
judgment, request the Court of Justice to give a ruling thereon. Where any such question is raised in a case
pending before a court or tribunal of a Member State, against whose decisions there is no judicial remedy
under national law, that court or tribunal shall bring the matter before the Court of Justice".
167
Therefore, 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.
In SPUC v. Grogan the Supreme Court overturned Carroll J. 's decision not to grant
SPUC an injunction stopping the officers of the student unions from distributing abortion
infonnation. Finlay C.J., (with whom Griffin, Hedennan and Walsh J.J. agreed, 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. The judiciary, in their angst to promote protection of the right
to life of the unborn, are zealous in their assertion of the primacy of national law in this
context, without acknowledging that the general rule is that where Community law applies,
it takes precedence. 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, without providing any reasonable explanation as to why this should be so. 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. Not only does
the Court refuse to weigh this right under EC law against the fetal right to life, it denies the
very existence of such a right,2
61
The Court poured scorn on the very idea that rights under
261
In SPUC v. 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. As a result the High Court granted the order issuing a permanent
injunction against the student unions; SPUC v. Grogan [1994] li.R. 46. 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; SPUC v. Grogan, supra note 200.
168
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, the ultimate authority on EC jurisprudence, on the
matter. Walsh J. commented:
The decision of this Court brought by the present plaintiff in [Attorney General v.
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. The interpretation of the Constitution of Ireland is within the exclusive
262
competence of the courts of Ireland.
Walsh J. 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. In order
to allow the State to become a member of the EC and to recognize the force of EC law in
Ireland, Article 29 4 3 was inserted into the Irish Constitution in 1972. It provides:
The State may become a member of the European Coal and Steel Community, the
European Economic Community and the European Atomic Energy Community.
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, acts done or measures adopted by the
Communities, or institutions thereof, from having the force oflaw in the State.
Given the direct applicability of Community legislation and the authority of the ECJ in
interpreting matters of Community law, this Amendment was necessary in order to avoid
contradicting constitutional recognition of the exclusive legislative power of the Oireachtas
(Article 15 2), 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). The principle
governing interpretation of matters on which Community law and national law conflict, is
262
SPUC v. Grogan, supra note 194 at 766.

169
that where Community law is relevant to the determination of proceedings it

takes precedence over domestic law. The European Court of Justice has been unequivocal
in this position and the Irish judiciary also appear to have accepted this view.
263
While
derogation from the fundamental principles of Community law - the free movement of
goods, persons and services - is permitted on grounds of public interest, such
derogation is generally strictly construed and must be necessary and proportionate to an
objective which is justified under Community law.
As Madeleine Reid notes, 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, within the sphere
of effect which it itself defines, superior force to the provisions of the Constitution".
264
In
Campus
Oil Ltd. v. 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.
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. That Article, as part oflrish law, qualifies
Article 34 in the matter in question"/
66
a view which one commentator has identified
as "plus
263 See Madeleine Reid, The Impact of Community Law on the Irish Constitution, (Dublin: Irish
Centre for European Law, 1990) at 9-16.
264 Ibid.
at 7.
265 [1983] I.R. 82; 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, 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.
266 Campus Oil, ibid. at

90.
170
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. 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.
This contradictory approach to the application of European Community law
highlights tensions in the representation of the Irish as 'good Europeans'. On the one hand,
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. On the other hand,
the Court is appalled at the idea that 'Europeanization' could threaten the cultural
symbols it identifies as having particular national significance. 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. 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.
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, "Appeals against an order to refer under Article 177 of the EEC Treaty" (1984) 9
European Law Review 87 at 97.
171
about abortion services, the adoption of the opposite view by one judge was all that was
necessary for the ECJ's intervention. As a result of Carroll J's reference, 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. 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.
However, 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 had no trouble accepting the students' argument that
abortion was an economic service. 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. 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. 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, it was careful in
so doing not to compromise its broad conception of a service as economic activity.
268 Articles 59 and 60

EC.
172
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. 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 fiee
movement of services. However, 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, that the ECJ decided to deny them the
protection of EC law. The ECJ was uncomfortable with the use of EC legal
mechanisms to address a matter which it considered primarily national and political.
The supranational institution which regards itself as regulating economic affairs wanted to
avoid being dragged into a question of nationally and politically contested import.
Several commentators have already criticized the Court's decision in SPUC v.
Grogan (no. 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.
Deirdre Curtin has argued that the court's focus on the type of information at issue is
inconsistent with trends in the case law. 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".
information type rather than effect is also problematic
269
A focus on
in that it relegates
'non-
commercial' information to the
269
Deirdre Curtin, "Case C 159/90, The Society for the Protection of Unborn Children Ireland
Ltd. v. Grogan, Judgment of 4 October 1991", (1992) 29 Common Market Law Review 585 at 596.
173
status of inferior unprotected information. Elizabeth Spalin has commented: "If the interest
protected under Article 59 is that belonging to consumers, then what possible difference
could it make whether the motivation of the person providing the information was
economic or public service?".
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, such as reproductive health services, are less appropriate for easy
consumption than others.
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. Rather than categorize abortion as a
right protected by the liberal democratic regime of the nation state, 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. In other words, when the denial of access to abortion has been challenged
through the courts, 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, privacy or liberty. 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, "Abortion, Speech and the European Community" (1992) 1 Journal of Social
Welfare and Family Law 17 at 22.
174
parallels the decision to appeal for legitimization from a supranational organization rather
than from the liberal democratic nation state.
The EU's legal regime recognizes that the removal of barriers to the free movement
of goods, services, capital and workers between EU member states is its raison d'etre.
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.
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. 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.
At one level, 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. At
another level, this strategy represents an attempt to harness the concepts and categories of
globalized capitalism to a feminist pro-choice cause. However, the effect of this strategy
was to instil in Irish public consciousness an association between pro-choice service
providers and European supranationalism. As the agents of this supranationalism, 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, 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
March 1997 as a result of the domestic legalization of abortion information in 1995. The
student unions had gained a symbolic advantage in getting abortion recognised as an
ordinary medical service, 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. 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, one of the chief non-profit abortion service providers in
Britain. 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. 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.
On the other side of the political abortion divide, 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. During 1991 the Irish government
was approached and asked to ensure that the Maastricht Treaty on European Union would
176
not interfere with Ireland's constitutional endorsement of the right to life of the unborn.
The government responded by asking the EC Council of Ministers to add a Protocol, to
become known as Protocol 17, to the Treaty which would effectively immunize Article 40
3 3 from the application of Community law. 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.
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, originated with John O'Reilly. 271 John O'Reilly was a key player in the
Pro-Life Amendment Campaign and is still active in socially conservative Catholic
organizations. O'Reilly approached Senator Des Hanafin, a well known anti-choice activist
and member of Fianna Fail, and expressed his concerns about the possible implications of
European Community law for Article 40 3 3. Hanafin then sought a meeting with party
colleague and then Minister for Foreign Affairs Gerry Collins, who was Ireland's chief
negotiator of the Maastricht Treaty. Collins approached then Taoiseach Charles Haughey
with draft proposals of the sought after EC guarantee, which apparently came from John
O'Reilly himself. In December 1991, the results of this process became known when
Collins introduced Protocol 17 to the Inter-governmental Conference on the Treaty of
European Union, and sought and obtained the consent of the Member States to its inclusion
in the Treaty. Protocol 17 states:
271
O'Reilly, supra note 37 at 138.
177
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.
Finbar Murphy comments:
Neither the wording of the Protocol, nor the intention of the Government to propose
its inclusion in the Maastricht Treaty, had been made public before the crucial Inter
272
Governmental Conferences in early December 1991.
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. 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, as well as legally, constructed as an
absolute public interest which required the exclusion of Community law.
272 See Finbar Murphy, "Maastricht: Implementation in Ireland" (1993) European Law Review 94 at 98.
See also: Ailbhe Smyth, "'And nobody was any the wiser"': Irish abortion rights and the European Union' in
R. Amy Elman (ed.), Sexual Politics and the European Union: The New Feminist Challenge (Oxford:
Berghahn Books, 1996). During the course of the limited Dail debate on the Maastricht Treaty a deputy
alluded to an initiative by Senator Hanafm, a prominent anti-abortion campaigner, to persuade the then
Taoiseach, Mr. Charles Haughey to ensure that "whatever changes may take place in Brussels will not affect
us in Ireland". Dail Debates, Vol. 413, col. 1723; quoted in Murphy at 96. As Kingston and Whelan note,
"most observers of the events of the last year [1991-2] would agree that the [Maastricht] protocol was
negotiated in response,
very largely, to the decision of the Court of Justice in SPUC v. Grogan", James Kingston and Anthony
Whelan, "The Protection of the Unborn in Three Legal Orders- Part III", (1992) 10 Irish Law Times, 166170at 169.
178
5. Post-colonial Legal Form, 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. Opendoor and SPUC v. Grogan. The Court had also declared that an
anti-abortion group, SPUC, had standing to seek the prevention of an alleged breach of the
fetal right to life in SPUC v. Coogan. In making these decisions, the Supreme Court denied
the relevance of qualifications on the fetal right to life, women's constitutional rights, and
European Community law. Through constitutionalization, the right to life of the unborn
had been legally recognized as an important interest of Irish society. Now, through the
judicial interpretation of Article 40 3 3, that right had acquired a status which rendered it
more important to Irish society than other constitutionally endorsed interests.
The
representation of the fetal right to life as an absolute interest had been translated into law,
given its higher constitutional status, its application to all Irish people without
differentiation, and its demand that positive action be taken to enforce the legal protection
of fetal life.
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. Communication about
abortion had to be stopped in order to prevent the purity of an anti-abortion culture
from being
179
contaminated. But the more the judiciary asserted the absolute need to protect fetal life,
the more the pregnant woman's rights as sustainer of that life were denied. The material
denial of women's rights in order to constitute Irish post-coloniality eventually had to
express itself.
The X case came about as a result of this absolutist interpretation of Article 40 3
3. On the understanding that Irish law required the State to prevent the destruction of fetal
life, the Attorney General sought, and the High Court granted, an injunction stopping a
young pregnant rape victim from travelling to England to tenninate her pregnancy. 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.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. On
appeal, the Supreme Court overturned the High Court ruling, in holding that Article 40 3
3's recognition of the mother's equal right to life, envisaged a right to abortion where
the mother's life was at risk. 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.
273 Both the High Court and the Supreme Court subsequently expressed the view that the Attorney
General had been correct to bring the matter.
274 See The Irish Times, 22 February 1992. 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, there
were large protests outside Dail Eireann almost everyday. On the Saturday after the High Court issued the
pennanent interlocutory injunction, 10,000 people marched through Dublin on a pro-choice protest, which
was unprecedented in Irish society. Pro-choice groups such as the Dublin Abortion Information Campaign,
Repeal the Eighth Amendment Campaign and the Women's Coalition were involved in the organizing of
such events.
180
The X case unfolded after X and her parents had decided to travel to England
in order that X tenninate her pregnancy. X's parents were anxious that the prosecution of
the man responsible for the rape proceed and that, if possible, X be spared the trauma of
giving evidence.
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.
The Gardai sought a legal opinion in this regard from the Director of Public Prosecutions,
and in the process the Attorney General was infonned of the case. 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,
restraining them from leaving the jurisdiction for nine months and restraining them from
procuring or arranging an abortion within or outside the jurisdiction.
On hearing of
the injunction X and her parents returned home from England in order to contest the motion
for an interlocutory injunction. They did so on the grounds that they had a right to travel
from the jurisdiction to do what was lawful elsewhere, that the mother's right to life was
itself in peril, and that such injunctions were unprecedented and ought not to have been
granted. By consent the motion was treated as the full trial.
Costello J. 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'. In granting the injunction which produced the X case crisis, Costello J. said
in the High Court:
181
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.275
The lengths to which Costello J. was prepared to go in the name of protecting fetal life is
shocking. 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'. The health and welfare of women were rendered insignificant
concerns in the face of the imperative to protect fetal life. For this judge the physical,
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.
The idea that women's right to life might actually entitle them to something other than
enforced biological existence escaped him. The fact that the woman's twenty four hour
supervision over a period of months amounts to her involuntary incarceration was also
deemed irrelevant.
As Attracta Ingram has commented, on this interpretation, 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".
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 - that there is a
right to abortion where the
275 Attorney General v. X, supra note I at

12.
276 Attracta Ingram, "Home and Away: The Unequal Vista for Irish Women" in Smyth, supra note 25,
149156
at
154.
182
pregnancy poses a real and substantial risk to the life of the woman - comes as a
welcome relief. 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.
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. At the same time abortion became a question of competing rights
rather than simply a question of protecting the public interest in fetal life. Abortion
becomes an issue of rights conflict in two senses. In the first place, 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. In the
second place, a conflict between the objects of rights also emerges as a legal issue. 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. 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.
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'. In doing so
the court identifies her relationships with others, the need to be merciful towards her, and
even a rape victim's need for paternal protection as factors influencing the decision to
183
recognize her right to abortion. X's right to abortion is not affirmed through a liberal
interpretation which would ground her right in the ideal of self-realization. She is identified
as having a right to abortion because of her particular victimized and dependent situation.
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, it is not
an outcome which can lend much support to women seeking abortion who do not have such
victimized circumstances. Although a woman's right to life emerges as a legal interest, its
emergence as a relational interest, whose capacity to justify a woman's abortion is
paternalistically determined, severely limits its liberal potential.
Thus paternalism replaces absolutism as the interpretative means through which
the conflict of women's and fetal rights are reconciled, and the woman's right is produced
as a relational interest which displace the absolute fetal interest. The court can protect fetal
life and avoid oppressing pregnant women by paternalistically deciding that abortion may
be required to protect particularly meritorious, vulnerable women. 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. The demand that X's individual right to abortion be recognised,
contradicts and challenges the post-colonial legal form's construction of abortion as an
object of the people's control. But this contradiction between an individual right and the
public interest is accommodated by interpreting individual rights relationally. This time the
hybridity of the fetal right to life is not contained by denying it but by managing it.
184
The news of the High Court injunction in the X case was greeted with consternation
on the part of the Irish public and, as protest mounted, the Government responded to the
pressure by making the unprecedented move of offering to fund X's appeal to the Supreme
Court. The Supreme Court (Finlay C.J., McCarthy, O'Flaherty and Egan J.J.; Hederman J.
dissenting) allowed the appeal and discharged the injunctions. 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. 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.
The risks to the life of the mother which should be considered by the Court included a real
and substantial risk of suicide.
Absolutism in dissent
As Hederman's J.'s dissent resembles more the absolutist interpretation of Article
40 3 3 than the emerging paternalist interpretation, I shall discuss his reasoning before
moving on to analyse the majority opinions. Hederman J. 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. Interestingly,
Hederman J. 's absolutism has two steps. In the first place his test for the permissibility
of
185
abortion sets an extremely high bar. In the second, he restricts the evidence that ought to be
taken into account in meeting this test to medical, obstetrical evidence, thereby dismissing
the evidence ofX's suicidal tendencies given by a clinical psychologist.
As far as Hederman J. is concerned pregnant women have a duty to carry
out pregnancy.
A State whose Constitution provides for the protection of fetal life
has an interest in acting in accordance with such a maternal duty. Nothing apart from the
virtually certain death of the pregnant woman can justify a termination, and a suicide threat
does not constitute such a risk. Hederman J. derives support for this reasoning from his
belief that "the unborn life is an autonomous human being", and that "no recognition of
a mother's right of self-determination can be given priority over the protection of the
unborn life."277 The extremely restrictive consequences of his views for pregnant women
are particularly obvious when he comments:
Suicide threats can be contained. 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. 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.
Hederman J. 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. 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, in which case the fetus would also die. Although
277 Attorney General v. X, supra note I, at

73.
278 Ibid. at
76.
186
Hedennan J. believes he is treating both rights equally, he is actually giving the fetal right
to life more weight than the woman's right to life.
Hedennan J. 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. He is quite clear
that it is justifiable for the State to take positive action in order to prevent the
destruction of 'unborn' life, 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. 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. 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.279
As well as according the right to life of the 'unborn' greater weight than its equivalent, the
right to life of the pregnant woman, and interpreting that right as if it requires positive
rather than negative action, Hedennan J. is also absolutist in the sense that he applies this
right generally. Not only does the State have a responsibility to take positive action to
prevent the destruction of unborn life, 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'.
280
279 Ibid. at
73.
280 Ibid. at
71.
their
187
When Hederman J. insists that the evidence of the clinical psychologist does not
meet the medical standard required to establish a substantial risk to X's life, the domestic
legal categorization of abortion as a medical service emerges. Abortion as a medical
treatment is more explicitly the object of legal regulation in the C case which I discuss
below. But Hederman J. 's discussion of what legitimately constitutes medical evidence has
implications for the interpretation
of abortion as a medical treatment. Hederman J's
absolutism leads him to the view that abortion is medically unnecessary. 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. Therefore, it is worth considering how Hederman J.
came to the view that psychological evidence that X was contemplating suicide was
insufficient to establish that abortion was medically necessary.
In discussing the report of a clinical psychologist who had examined X, Hederman
J. notes specifically that he was not a medical practitioner. 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. By implication, 'medical' is constructed narrowly
so as to exclude psychological, and the risk of self-destruction is categorized as a lesser
order than obstetrical risk. This narrow reading of 'medical' shows how the categorisation
281
282
See The Medical Council, Ethical Guidelines on Abortion, (Dublin: Medical Council, 1998).
See the Green Paper, supra note 4. During the parliamentary constitutional committee's hearings on
abortion in May 2000, several senior obstetricians argued that abortion was medically unnecessary; see
Colman Cassidy and Michael O'Regan, "Abortion 'not needed' to save mothers' lives", The Irish Times,
5
May 2000.
283 Supra note I at 66.
188
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.
Hederman J. refers to the doctrine of double effect, without naming it explicitly, in
justifying his view that abortion could only be permissible where 'strictly necessary'.
In
arguing that "it is difficult to see how any operation, the sole purpose of which is to save
the life of the mother, could be regarded as a direct killing of the foetus, 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. gives some legal weight to the view that there is a significant
distinction between direct and indirect abortions.
Direct abortions are those where
termination of the pregnancy is directly intended.
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. By relieving indirect abortions of moral responsibility, and
in his view legal responsibility, Hederman J. allows for abortions that are absolutely
necessary to save the life of the pregnant woman. At the same time, direct abortions which
are not about saving the woman's life are categorized as unnecessary and impermissible.
Through this distinction between direct and indirect abortions Hederman J. constructs
abortion as a medically unnecessary service. Indirect abortions are not really abortions, and
direct abortions are unnecessary.
Anti-abortion campaigners have consistently relied on the doctrine of double
effect to argue that abortion is not a medically necessary service. They argue that those
cases
284
Ibid. at
72.
189
where tennination of pregnancy is the only treatment which will save the pregnant
woman's life, such as cancer of the womb, are not really abortions since saving the
woman's life, by removing the womb, is the primary direct effect of the treatment, while
killing the fetus is the secondary indirect effect. They go on to argue that pregnant women
can receive treatment for any other condition without having an abortion. Although this
interpretation of abortion as a medically unnecessary treatment only has legal support in so
far as it infonns Hedennan J.'s dissent, it is a prominent aspect of pro-life legal refonn
efforts in the aftennath of X.
Rightsholder by virtue of relationships

A majority of the Court however, were of the view that the fetal right to life did not
merit absolute protection in this context, and went on to justify their decision to recognise
X's right to abortion. In his judgment, McCarthy J. condemned the Legislature for failing
to provide guidelines on when it is not practicable to protect 'the right to life of the unborn',
as envisaged by Article 40 3 3. In so doing, he contemplated circumstances in which
abortion might be pennissible. He asked:
What additional considerations are there? Is the victim of rape, statutory or otherwise,
or the victim of incest, finding herself pregnant, to be assessed in a manner different
from others? ... Does the right to bodily integrity, identified in Ryan v. Attorney
General [1965] I.R. 294 and adverted to by Walsh J. in SPUC v. Grogan [1989] I.R.
753 at p. 767, involve the right to control one's own body? 285
285
Ibid. at 82.
190
The posing of this rhetorical question, 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, is the furthest that any of the judges go in considering what
entitlements are constitutionally bestowed on a woman in her own
right. The
constitutional endorsement of rights to bodily integrity and privacy, for example, created the
possibility of justifying X's right to abortion by reference to the constitutional rights which
a woman has in her own right. However, it was primarily by reference to constitutional
rights a woman has as a mother, or in her relationships with others, that the court
justified X's right to abortion. For example, Finlay C.J. said:
I accept the submission made on behalf of the Attorney General, 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, of course, with the right to life of the unborn child as well. Such a
harmonious interpretation of the Constitution carried out in accordance with concepts
of prudence, justice and charity ... 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, the Court must, amongst the matters
to be so regarded, concern itself with the position of the mother within a family group,
with persons on whom she is dependent, with, in other instances, 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.
O'Flaherty
asked:
J.
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, as I believe one must do, then
287
the answer is clearly not.
286 Ibid. at 53.

287 Ibid. at 87, emphasis in original. O'Flaherty J. is referring here to Article 41 2 2 which, as noted
above, provides that: "The State shall, therefore, 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".
191
McCarthy
said:
J.
In my view, the true construction of the Amendment, bearing in mind the other
provisions of Article 40 and the fundamental rights of the family guaranteed by
Article 41, is that, paying due regard to the equal right to life of the mother, 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, then it may not
288
be practicable to vindicate the right to life of the unborn.
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'. The fact that the Court failed to
do so is significant. 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. The Court then
goes on to refer to social, 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. The other constitutional rights to which the Court refers as support for X's right to
abortion are predominantly maternal and familial, rather than individual and personal. This
dominant view that X's rights ought to be protected in this instance because otherwise her
relationships will be damaged, turns X's right to life into a relational interest. She merits
recognition as a rightsholder by virtue of her relationships with others and not in her own
right.
288 Ibid. at 80, emphasis

added.
192
This development suggests some need for caution on the part of advocates of
relational feminism
289
in general, and of relational autonomy and rights 290 in particular.
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, and that relationships should generally be given more moral weight.
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.
If taking
relationships into consideration becomes a ground for recognising rights capacity in the
first place however, as it has in this instance, then relational rights may have worrying
implications. 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.
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. said:
I cannot disregard the fact that, whatever the exact numbers are, 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; it is ironic that
out of those many thousands, in one case of a girl of fourteen, victim of sexual
abuse and statutory rape, in the care of loving parents who chose with her to
289
Carol Gilligan's In a Different Voice, supra note is regarded as the key text in developing
relational feminism.
290 See for example: Jennifer Nedelsky, "Reconceiving Autonomy: Sources, Thoughts and Possibilities"
( 1989) 1 Yale Journal of Law and Feminism 7; Jennifer Nedelsky, "Property in potential life: a relational
approach to choosing legal categories", (1993) 6 Canadian Journal of Law and Jurisprudence 343.
193
embark on further trauma, having sought help from priest, doctor and gardai, and
with an outstanding sense of responsibility to the law of the land, should have
the full panopoly of the law brought to bear on them in their anguish.291
The extremity of X's victimhood - raped, suicidal, and stopped by the High Court from
travelling out of Ireland to have an abortion - provoked an outpouring of national and
international sympathy and discontent. 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, and that failure to do so would be perceived as further contributing to her victimization.
McCarthy I. draws attention to the fact that X and her parents have done nothing wrong.
They have shown exemplary respect for the law, they have consulted with all the right
people, 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 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. X is paternally
regarded as being pure enough to withstand corruption by abortion.
One of the justifications for protecting the fetal right to life is its innocence. The
fact that the fetus has not done, indeed cannot do, anything wrong is often presented as
precluding the pregnant woman from acting to harm it. In the X case, however, the
pregnant woman's innocence rivals that of the fetus. X's innocence allows her right to act
291
Supra note I at 85.
194
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
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
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
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
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
In order for this shift to occur, however, abortion infonnation had to first emerge as a
distinct object oflegal regulation.
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. Rather than all three being conflated as simultaneously and
similarly violations of the constitutional right to life of the unborn, travel and infonnation
emerge as lesser threats to the value of fetal life than abotiion. 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. 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. However, the fact that they recognized the
tension between the two rights, and the fact that two judges expressed the view that the
right to travel could not be curtailed because of a particular intent i.e. to obtain an
abortion, signal that abortion travel was beginning to be legally recognized as a distinct
object of regulation.
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, abortion infonnation and
abortion travel separately. 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. And if Protocol 17 made Article 40 3 3 exempt
from the application of Community law, then arguably women could not rely on a right to
200
travel derived from Community law if the Maastricht Treaty was adopted. As a result the
government's campaign for the Treaty became embroiled in abortion politics. 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. The
Repeal the Eighth Amendment Campaign demanded both the repeal of Article 40 3 3 and
the withdrawal of the Protocol.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. They had not
intended that the Protocol would protect a constitutional provision which allowed abortion.
Five days after the Supreme Court judgment in the X case a new Pro-Life Campaign was
launched seeking a complete ban of abortion.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, 1992, they did not
want the debate on Maastricht to be consumed in controversy over abortion. Public anger
at the government's secret handling of the Protocol also jeopardized the acceptance of the
Maastricht Treaty. Therefore, the government sought to amend the Protocol so that rights
to travel and information would be guaranteed.
298
However, 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. Instead the
296
297
298
See O'Reilly, supra note 25 at 145.

Murphy, supra note 272 at 141.
The proposed addendum read: "This Protocol shall not limit the freedom to travel between Member
States or to obtain or make available in Ireland, in accordance with conditions which may be laid down by
Irish
legislation, infonnation relating to services lawfully available in Member States", ibid at 602.
201
Member States agreed to accept a 'Solemn Declaration' by Ireland on the Protocol. The
Solemn Declaration, in its affirmation of rights to travel and information, is diametrically
opposed to the government's original intention in implementing the Protocol.
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. The
government's interest in securing Ireland's participation in the European Union, and
particularly in securing a promised $16 billion in development funds, stirred them into
promising abortion reform. Ultimately, the Irish people voted to accept the Treaty on
European Union by a majority of69% in June 1992.
The need for legal reform on the issue of abortion information became all the
more immediate when Morris J. made permanent the injunction against the Student Unions
preventing them from distributing abortion information about abortion services in SPUC
v. Grogan (no. 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, 1992. 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. 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, in conformity with Community law, by Irish legislation, to obtain to make available
in Ireland, information relating to services lawfully available in Member States. At the same time the High
Contracting Parties solemnly declare that, 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, they will, following the
entry into force of the Treaty on European Union, be favourably disposed to amending the said Protocol so
as to extend its afoplication to such constitutional amendment if Ireland so requests." Ibid. at 99.
30
[1994] li.R. 46. In SPUC v. Grogan (no. 3) [1992] 21.R. 471, Morris J. 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., a senior adviser to the Attorney General, on the grounds, that
since the Maastricht Treaty was not yet in force, Protocol 17 to the Treaty and the Solemn Declaration were
irrelevant to the issues before the court, as was any evidence P. might give in relation thereto. The injunction
202
Article 40 3 3 in order to guarantee rights to information. Morris J. 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.
Morris J. rejected the argument that as abortion
was permitted in circumstances of a real and substantial risk to the life of the pregnant
woman, as a result of the X case, an injunction against the provision of abortion information
violated the rights of these women. 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. 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, but the effect of his conclusion is to deny them that right.
Because the indiscriminate provision of abortion information by the student unions is not
the appropriate response to an X-type right to abortion information, that right is denied.
This interpretation is further evidence of a paternal relational approach to rights. 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. Because this right
does not have the appropriate relational context, 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. See: SPUC v. Grogan, supra note 200.
203
injunction. The student unions who, by seeking open distribution of abortion information,
have failed to provide the appropriate relational context for exercise of a recognised right,
are denied the protection of the law. These pro-choice providers cannot be trusted to treat
abortion information correctly and are therefore a threat which must be restrained.
The three referenda of November 1992 on the so-called substantive issue of
abortion, on abortion information, and abortion travel removed any doubt as to their status
as distinct objects of legal regulation. The proposed Twelfth, 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, as distinct from the health, of the mother where there is an
illness or disorder of the mother giving rise to a real and substantial risk to her life, not
being a risk of self-destruction.
This subsection shall not limit freedom to travel between the State and another State.
This subsection shall not limit freedom to obtain or make available, in the
State,
subject to such conditions as may be laid down by law, information relating to services
lawfully available in another
State.
The result of the November I992 Referendum was a defeat for the amendment on the
'substantive issue' of abortion (35%/65%), and acceptance of the amendments on
information (60%/40%) and travel (62%/38%) rights. Pro-choice advocates had asked for a
'no' vote on the abortion issue, and a 'yes' vote on the travel and information issues. The
anti-abortion lobby had sought a rejection of all three amendments and the government had
sought their acceptance.
While the combined efforts of the pro- and anti-choice forces
204
contributed to the defeat of the proposed Twelfth Amendment, the overall result was read
as more of a pro-choice than an anti-abortion victory given its no, yes, yes, pattem.
301
However, the success of the infonnation amendment did not signal that all the
trouble was over for pro-choice organizations. In July 1993 the Supreme Court decided to
refuse to lift the injunction against Opendoor and Dublin Well Woman clinics. 302
The
second defendant: Dublin Well Woman, 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. In the original case, the
Supreme Court had varied the High Court's injunction order against the pregnancy
counselling centres on appeal. 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 - the Fourteenth Amendment - without the issue having arisen or
having been decided in the High Court. As the Supreme Court was a court of appeal
without originating jurisdiction, under Article 34 of the Constitution, the Court should not
hear and detennine an issue otherwise than on appeal.
Denham J., the first woman
appointed to the Supreme Court, dissented on the grounds that the Supreme Court had an
inherent jurisdiction to protect constitutional rights. She was of the view that since there
was a constitutional right to provide abortion infonnation, the injunction represented a
violation of constitutional law.
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. For example,
Ronald Dworkin comments: "the first of these votes was widely understood as a refusal to liberalize
abortion", Dworkin, supra note 14 at 47.
302
The Attorney General v. Open Door Counselling Ltd. and Dublin Well Woman Centre Ltd. (no. 2) [1994]
2 I.R. 333, hereinafter referred to as Attorney General v. Opendoor (no. 2).
205
pregnant women and of the second defendant at nought. This dismissal on jurisdictional
grounds again contributed to the idea that pro-choice services would continue to find it
difficult to access legal protection, 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,
legislation was constitutional,
304
303
and the Supreme Court determination that such
have since provided legal direction on how abortion
information is to be regulated. Basically, the Act provides for the lawful publication of
information required by a woman seeking abortion outside the State. However, 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.3). In provisions targetted at
pregnancy counselling centres, the making of the actual appointment for a termination on
behalf of the woman is prohibited (s.8), and
information on all pregnancy options must be provided (s.5). In provisions seemingly
targetted at student unions and other similar political pro-choice organisations, public
display or distribution without solicitation of abortion information is unlawful (s.4).
Contravention of any of the Act's provisions is an offence and entails liability, on summary
conviction, to a fine not exceeding I ,500 punts (approx. $3,000) (s.IO).
303 Regulation of Information (Services outside the State for Te1mination of Pregnancies) Act, Acts
of the Oireachtas, 1995, no. 8.
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, 1995 [1995] 2
I.L.R.M. 81, hereinafter referred to as In the Matter of the Regulation of Infmmation Bill; the judgment was
delivered by Hamilton C.J.
206
The Act represents a significant change in Irish abortion policy. It formally

recognised that information about abortion may legitimately be provided in publications
and in the context of pregnancy counselling. As a result, the injunctions have been lifted,
the Irish College of General Practitioners has circulated its membership with information
about abortion clinics in Britain, and advertisements for abortion clinics are back in
magazines and newspapers. Women seeking abortions may now access support services
more easily and with less fear of being stigmatized.
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. 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. Abortion promotion was to be
avoided because even if abortion was necessary it should not be condoned or approved of
in any way. Abortion referral had to be stopped because otherwise women would treat
abortion as if it was just another minor procedure, and abortion providers would profit.
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
Act is replete with contradictions. For example, 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. It is not lawful to display a poster with
207
the number of an abortion clinic on it, but it is lawful for centres who would supply such
contact information to advertise themselves. If the woman receiving the information is in
the wrong kind of relational context, one which countenances abortion
promotion or
referral, she will be denied her right to free speech.

As the Bill was a highly controversial negotiation of conflicting
constitutional
rights, then President Mary Robinson decided it best, after consultation with the Council of
State, to exercise her prerogative under Article 26305 of the Constitution to refer the Bill to
the Supreme Court in order to assess its constitutionality. In the circumstances of an
Article 26 reference, the Court must give a one opinion judgmene
06
and if the Bill is found
constitutional, its constitutionality can never be challenged again.307 President Robinson's

decision was widely perceived as an effort to copperfasten the legislation and avoid the
perpetuation of uncertainty. The possibility of a future constitutional challenge to the Act
was not remote, particularly given the level of the anti-abortion lobby's discontent. 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, or a Bill expressed to be a Bill containing a
proposal to amend the Constitution, or a Bill the time for the consideration of which shall have been
abridged under
Article 24 of this Constitution". Section 1, subsection 1 provides: "The President may, after consultation
with the Council of State, 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'.
306 Article 26 2 2 provides: "The decision of the majority of the judges of the Supreme Court shall, for
the purposes of this Article, be the decision of the Court and shall be pronounced by such one of those
judges as
the Court shall direct, and no other opinion, whether assenting or dissenting, shall be pronounced nor shall
the existence of any such other opinion be disclosed".
307 Article 34 3 3 provides: "No Court whatever shall have jurisdiction to question the validity of a law, or
any provision of a law, the Bill for which shall have been referred to the Supreme Court by the President
under Article 26 of this Constitution, 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".
208
be given, 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. On the 12th May 1995, the
Supreme Court found that the Bill was constitutional and on the same day the President
signed it into law.
In recognizing that the legislation represented a fair balancing between conflicting
constitutional rights, 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 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. 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, was also adopted with the intention
that abortion travel should not be limited by reference to the right to life of the 'unborn'.
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.
Through the referenda, the legislation and the Supreme Court decision, 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'. Freedom of information is
no longer dismissed as a legal interest of a lower constitutional status than the fetal right to
life. The separating out of these legal interests, however, also facilitates the separating out
209
of the parties involved in acting on those interests. 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. The less deserving woman is the one for whom travel and
information rights are secured.
In imposing criminal penalties for promoting abortion and for publicly displaying
abortion information, the law sees itself as protecting women from being persuaded into
terminating their pregnancies. Although women can legally obtain information, they must
continue to do so in a culture where abortion is stigmatized. Otherwise women will not be
able to resist the 'promotion' of abortion. These legal assumptions that it is in women's
interests to curtail some types of abortion information, and that women are vulnerable to
manipulation by abortion promotion are further evidence of paternalist legal interpretation.
But they also indicate a legal desire to constrain pro-choice services, thereby constructing
them as the danger to women and to the protection of fetal life. At the same time as the law
begins to depict pro-choicers as the exploiters of women which it now seeks to protect, the
notion that the value of fetal life merits absolute protection is explicitly rejected.
A colonial
abortion
threat?
State
support
for
In November 1997, another tragic case involving a pregnant thirteen year old rape
victim came before the courts. 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.
was
308
The young woman, a member of the travelling community/
09
308
See A. and B. v. Eastern Health Board, Fahy and C., supra

note 2.
210
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. Although her parents
were initially supportive of her wish to terminate the pregnancy, they changed their minds
after members of anti-choice organizations such as Youth Defence approached them. As a
result the Eastern Health Board within whose care the girl had been placed, applied to the
District Court to extend the care order under the Child Care Act, 1991, so that it could
bring C, the young woman in question, abroad to obtain a termination of her pregnancy.
When the District Court granted that order
the parents applied to the High Court for a judicial review, on several grounds, including
that abortion could not constitute a medical treatment under the Act given the
constitutional right to life of the 'unborn'. Funding for the legal action was organized by
anti-choice organizations.
The High Court refused to quash the order
primarily because Mr. Justice Geoghegan found that an abortion which came within the
terms of the X case, as in this instance, was a medical treatment under the Act. Plans for an
appeal to the Supreme Court were eventually abandoned and C was permitted to travel for
an abortion.
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, and that a State agency, the
Eastern Health Board, be permitted to make all the necessary arrangements, we can identify
two interesting developments in the law.
For the first time, abortion is explicitly
309
The Irish travelling community, or 'travellers', are a distinct ethnic group in Irish society who
have historically led a nomadic lifestyle.
31
Christine Newman, "Rape Victim free to have Abortion in England", The Irish Times, 2 December 1997.
211
recognized as a medical treatment in domestic law. 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, abortion is included within the category of
'medical treatment'. Secondly, the State assumed financial and caretaking responsibility in
assisting C to obtain an abortion. Unlike the X case where X's parents were permitted to
make private arrangements for her to terminate her pregnancy, in the C case the
arrangements were publicly funded and made by public authorities. 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. But when C's parents changed their minds about their support for her wish to
terminate the pregnancy, the Eastern Health Board applied for a continuance of the care
order and assumed public responsibility for supporting C's abortion decision. In five short
years, the State (through the Attorney General) has moved from stopping X from travelling
for an abortion, to providing (through the Eastern Health Board) for C's travel for an
abortion.
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. Pro-choice and feminist advocates have long
argued that abortion should not be treated as an exception, but should be incorporated into
the general provision of reproductive health services. The argument that abortion ought to
be regulated like any other basic health service emphasizes the need to remove the stigma
212
from abortion and make it generally accessible. And the legal recognition of abortion as a
medical treatment does contribute to its destigmatization. The fact that this was a matter of
national law categorization rather than Community law also avoided the foreign, neo
colonial associations which had accompanied the ECJ's construction of abortion as a
medical service.
But abortion's categorization as 'medical' means that it is being constructed in
narrower terms than a reference to 'health' would suggest. The fact that C was examined
by two psychiatrists, rather than by a psychologist as was the case with X, affirms that
abortion is being considered as primarily medical rather than health related. 'Medical'
categorization can operate as a means of controlling access to abortion. In the first place,
the question of who and when someone has access to abortion is decided by doctors.311 In
the second place, the evidence of a woman's need for abortion is assessed according to
medical standards.
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. Pro-lifers assess abortion as an obstetrical need,
and even argue against it as a psychiatric treatment on the grounds that women are less
likely to harm themselves when pregnant. Pro-choicers assess abortion as a health need,
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. For pro-lifers, the C
311
See Sheldon, supra note 15.
213
case's acceptance of psychiatric evidence of C's need for a termination constructed the
medical need for abortion too broadly. 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.
312
Once they had lost the legal argument, they switched to a
medical argument. For pro-choicers, the same decision constructed medical need too
narrowly. The Dublin Abortion Rights Group, for example, argued in response to the C
case that free, safe and legal abortion facilities should be made accessible in Ireland.
However, the emergence of abortion as a medical treatment enables new types of
arguments to be made. If we are to understand the potential of this legal content 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 Court noted that C was a
member of the travelling community, that she lived in particularly squalid conditions
before being taken into care, and that she was one of twelve children. It further noted that
there was a well-founded view that her parents did not respond appropriately to her rape.
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.
The Irish Travellers' Movement held a press conference objecting to the racism it saw in
the media treatment of the case. An Ireland which had been enjoying increased
prosperity since the mid 1990s reacted strongly to the poverty in which C and her
family lived.
312
C's poverty, her
Christine Newman, "Laws sought on abortion after parents' decision", The Irish Times, 2 December,
1997.
214
membership of the travelling community, and her membership of a family of twelve

children provided justification for the emerging public view that C ought to have an
abortion.
This response to C betrays aspects of the systemic discrimination which
travellers have experienced at the hands of the settled population. 313 Consistently blamed
for their own poverty and denied publicly funded halting sites for their caravans,
travellers have found it difficult to maintain their lifestyle and livelihood. 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. Although these groups do not share a history
of genocide, some of the contemporary struggles they face, against assimilation for
example, are comparable. In this sense, 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. 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, C was to be
spared motherhood because she was unfit for it. Given this public context, it becomes
easier to understand why the judge would think that C's status as a traveller, her eleven
siblings, 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 and Ireland: Whose Country? Whose History? (Cork: Cork
University Press, 1995).
215
made. Implicitly, 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. Through the C case the paternalist
concern for the young woman's circumstances goes beyond a benevolent, protectionist
desire to alleviate X's suffering, to become a more directive, authoritative desire to act for
C's own good.
216
6. Conclusion
In this dissertation I have focused on drawing out the post-colonial influences on
Irish abortion law.
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, 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,
women are denied their legal subjectivity and their formal legal interests are neglected. But
this legal objectification of women through the denial of abortion cannot sustain itself in
such oppositional, absolutist terms given the contradiction posed by women's abortion
activity. The more the law constructs an absolutist anti-abortion stand, the more likely it
becomes that that absolutism must rupture. Once absolutism does rupture through the
recognition of X's right to abortion, 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.
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.
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
national control. 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.
As well as helping to explain the management of change in the content of law,
legal fonn also assists in the task of explaining the connections between social content and
legal content. The way abortion gets talked about in civil society is not necessarily the
same as the way abortion gets discussed in the legal forum. While post-colonial
references were evident in social discourse they were not explicit in legal discourse. Legal
fonn imposes its own constraints on objects of regulation such as abortion. But it also
provides a means of connecting social content and legal content.
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'. 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. As Irish society begins to tolerate victimized women's need for
abortion and identifies pro-choice agencies as 'abortion promoters', abortion
becomes legally recognized
as a restricted medical treatment. 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.
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
way it has. The concept of legal form provides a means of tracing the specific role of law
in social relations. 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. 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.
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.
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. 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. 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, supra note

23.
219
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. Rather the post-colonial legal is but one aspect of a complex nexus of relations
which affect women's abortion activity.
Clearly medical and economic forms
of regulation, for example, are also operating to constrain women's abortion access. In
the aftermath of the Supreme Court decision in the X case, the Medical Council
continues to insist that, as a matter of medical ethics, an abortion is never necessary
as a medical treatment for a pregnant woman. The medical ethical regulation of
abortion is currently more restrictive than the legal regulation. Although medical ethics
has long been an influence on the debate, 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.
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. Why have doctors and nurses, for the mostpart,
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.
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
financial resources together. Economics has clearly already had an impact on the
availability of abortion. 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. 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. 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. 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. Finally women and men
on low income do not have to pay for contraception or sterilization or other basic
reproductive control measures.
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. Should abortion become legally available in Ireland,
economics will continue to affect access. 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, while leaving those who
cannot vulnerable to the particularities of an underfunded public system. The implications
221
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.
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. 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. 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.
For example, in the immediate aftermath of the X case's introduction of some
liberalization of abortion, Youth Defence was born. Youth Defence (YD) is by far the most
aggressive and militant of the 'pro-life' groups and has an uneasy relationship with the
older, more 'respectable' organizations such as LIFE, the Society for the Protection of
Unborn Children and the Pro-Life Campaign. 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. When abortion law substantially conformed with the
objectives of 'pro-life' organizations, those organizations adopted mainstream political
methods. Once abortion law began to differentiate itself from an absolutist 'pro-life' policy
222
however, an organization which adopts alternative aggressive methods has emerged in

order to confront what it sees as a sell-out to the abortion agenda. A history of Youth
Defence itself, as well as other agencies in the abortion debate, would provide interesting
insights into these relationships between historical events, like the X case, and socio-legal
strategies.
The relative weakness of pro-choice groups has also had a significant impact on
abortion politics and merits further investigation. The effect of the recently formed prochoice umbrella organization - Abortion Reform - remains to be seen. 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.
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, it was a marginalized foothold. The pro-life amendment
campaign did provoke more pro-choice and feminist activity through the Anti-Amendment
Campaign. 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. It was not until
the X case issued a rallying call that any larger scale pro-choice lobby emerged. 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.
315 The second Voices of Reason Conference- Irish Women Tell their Stories- will be held in Dublin
in on the 4th of November 2000.
223
The Women and Crisis Pregnancy Report in particular, 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. Over the years, the
capacity of the abortion debate to proceed without engaging with women as participants in
that debate, has been all too obvious. Although the Report has made a start at introducing
women's pursuit of abortion to the public debate, much more work remains to be done in
deciphering the relationship between abortion practice and abortion politics. The actual
practice of Irish women pursuing terminations abroad has haunted anti-abortion policy and
demanded legal recognition.
Although the needs of abortion-seeking women have failed so far to be substantially
accommodated by the Irish legal system, women are represented through Irish abortion law.
The issue is not the omission of women from law, but the limitations of the roles abortion
law has assigned women. The task therefore is not so much to seek the legal inclusion of
women's interests, but to confront and diversify the conception of womanhood that informs
abortion law. As this study has shown, the interpretation of the right to life of the 'unborn'
has produced particular legal representations of Irish womanhood. Sometimes she is an
instrument of reproduction, othertimes she is an iimocent who does not deserve to be
pregnant, and others still she is not competent to mother. As feminism struggles to seek
legal accommodation of women's reproductive needs, its representations of women may jar
against those of the law. Identifying the understanding of women's roles that informs the
224
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, 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, among other things, did not prevent the legal construction of woman as the
instrument of reproduction. Even where a woman's rights are formally recognized they may
be judicially ignored. Thus the conception of woman as rightsholder has not facilitated
accommodation of women's needs in this particular context.
At the same time as this limitation has been revealed however, so has the potential
of arguing in terms of a public interest in providing for women's needs. The very tool
which has been used to construct womanhood as the means of national reproduction - the
public interest in fetal life - could provide a resource for feminist legal strategy. The
possibility exists for feminism to insist on the accommodation of a public interest in
women's lives. This strategy has the merit of collapsing the opposition between 'women'
and 'public' as well as simply providing another form of argument. 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.
Similarly, by explicating the way the judges reasoned their assertion of a woman's
right to abortion in the X and C cases, I have revealed both the advantage and disadvantage
225
of the conception of this right in relational rather than individual terms. On the one hand,
the concept of a relational right had the actual benefit of facilitating the recognition of a
woman's right to abortion in these instances. 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. By locating a person's right in the relational context in
which he or she operates rather than in his or her individual personhood, 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, the argument goes.
The advantage of this approach is thought to be that it focuses attention on the need
to create enabling circumstances for rights use, rather than on the recognition of an
individual's right per se, whether or not that individual is in a position to benefit from
having that right. The identification of abortion as a relational right has the merit first of
enabling recognition of a woman's interest in accessing abortion, and second of suggesting
that her relationships and circumstances are such that support exercise of her decision to
terminate her pregnancy. 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.
In other words, accommodation of relational context has the potential to be used as a
rationale for denying a right, just as much as it has the potential for enabling the assertion
of rights.
226
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. Formal
constitutional rights betray a tension between a liberal democratic tradition and an
authoritarian nationalist one. 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. But its post-colonial hybridity lies in its identification of fetal
constitutional rights as the means of reasserting national authority.
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. The constitutional form shapes the social
constructions of abortion. 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.
Therefore, as a historical casestudy, 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.
At a theoretical level, this dissertation contributes to post-colonial, socio-legal and
feminist critique. As an exercise in feminist critique, it argues for an appreciation of the
material significance of symbolic representations of womanhood. Ireland is anomalous
among Western nation states in its refusal to liberalize abortion access. Its prohibition of
abortion has worked both as a normative and as an empirical constraint on women. The pro
life amendment draws these two aspects together as it works symbolically to mark Ireland's
227
difference at the same time as it prescribes maternal sacrifice for Irish women.
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. 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, as was evident in the X and C cases. 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.
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 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. Feminist theorizing about abortion has to
anticipate the power of abortion as metaphor in a particular cultural context.
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. This simply
means that they
228
think it is necessary to go beyond the methods of caselaw analysis and statutory

interpretation in order to really understand legal phenomena. It is difficult to understand
law itself unless you understand how it responds to and intervenes upon social dilemmas.
Clearly I am in broad agreement with this approach to legal studies. It should be equally
clear, however, that I do not believe this approach necessitates abandoning basic legal
methods. 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.
As Pashukanis conceived of it, 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. He thought you had to combine both internal and external
perspectives. 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. 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. When the systemic
conditions in which this happens are post-colonial and patriarchal, as in this instance,
reproduction serves well as an object whose control produces the nation as subject.
From an external perspective, 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. But the legal fonn of the pro-life amendment also conditions the
229
interpretations given its content. From an internal perspective, the rights provisions of
Article 40 3 3 were not interpreted as rights provisions usually are in legal analysis. As
the application of basic legal method such as caselaw analysis reveals this, it
simultaneously demands an explanation. 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, rather than by the task of
balancing rights conflicts. Legal form analysis therefore contributes to socio-legal theory
by showing how law itself reveals aspects of social relations, and by showing how law
reacts to and intervenes upon social processes.
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, and for a conception of the post-colonial which regards
itself as a historical product of the process of decolonization. I also argued that as a
historical category of critique, 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.
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
right to life of the 'unborn'. 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, and Irish identification with Catholicism as nationalist
majoritarianism in post-colonial conditions. 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.
As well as refining and developing a post-colonial theoretical framework, my
study contributes to post-colonial critique by identifying some of the ways in which law
can reveal post-colonial effects. There were four ways in which such effects were revealed:
the post-colonial rationales adopted by campaign organizations engaged in legal

reform efforts;
the use of the constitution as a product and symbol ofpostcoloniality;
the legal interpretation of the right to life of the 'unborn' as a marker of
cultural authenticity;
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. 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.
231
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. But it does
provide some clues as to the obstacles that remain for pro-choice feminism during the
current reform process. As the resources which post-coloniallegal form has put to use are
revealed, so is the opportunity to develop arguments which undermine the ways in which
that form uses colonial history, or women's reproductive capacity, to justify such an
extreme pronatalist policy. Similarly, the fact that post-coloniallegal form has
accommodated changes means that changes which accommodate feminist aspirations are
also possible. Ultimately, 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.
232
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Ruth Fletcher Dissertation Ireland Abortion

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Post-colonial legal forms: A feminist critique of Irish abortion law

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Post-colonial Legal Forms:

A dissertation submitted to the Faculty of Graduate Studies in

Graduate Programme in Law

Your file Votre r616rence

Our file Notre refSrtHJce

A Feminist Critique oflrish Abortion Law As

a dissertation submitted to the Faculty of Graduate Studies of

Permission has been granted to the LIBRARY OF YORK

Irecommend that the dissertation prepared

A Feminist Critique oflrish Abortion Law As A

be accepted in partial fulfillment of

Recommendation concurred in by the following

This dissertation argues that the peculiarity of Ireland's constitutional protection

have emerged through the formal ending of colonialism. I go on to depict a conception of

2. LOCATING POST-COLONIALITY: THE SOCIAL FRAGMENTS BEHIND IRISH ABORTION

From decolonization to post-coloniality......................................................................................................35

3. LEGAL FORM MATTERS: CONTRADICTION AND CHANGE IN THE CONSTITUTIONAL

Abortion and the commodity form theory.........................................................................................................92

Law as sovereign command..............................................................................................................................118

4. POST-COLONIAL LEGAL FORM, ABSOLUTIST LEGAL CONTENT: THE FETAL RIGHT TO

Article 40 33's qualifying clauses.......................................................................................138

5. POST-COLONIAL LEGAL FORM, RELATIONAL LEGAL CONTENT: THE WOMAN'S RIGHT

Absolutism in dissen/......................................................................................................................................... 185

Yet as the Green Paper on Abortion indicates the likelihood of another

Interdepartmental Working Group on Abortion, Green Paper on Abortion (Dublin: Department of an

1. An absolute constitutional ban on abortion;

the purposes of this dissertation.

Why is it that Ireland is the only Western nation state to

What are the cultural

status as a post-colonial assertion of Irish cultural authenticity.

The court order

But, as I will show, the hybridity of the

constitutional protection of fetal life is managed by making the assertion of a woman's

contributing to unwanted pregnancies and abortion. The commissioning and reporting of

like the decision

of abortion as an issue which has to be addressed. The gap between the

The phenomenon of women terminating their pregnancies has exercised the

minds of moral theorists over the ethics of women's decision-making

and the ending of

challenged historians to document and explain the significance of abortion's

and required sociologists to trace abortion's capacity to mobilize social

Abortion has confronted legal scholars with problems of regulation,

campaigning against it,

significance in women's lives.

and demanded that feminists account for its particular

They may address changes in the current means of abortion's

It is post-structuralist because my critique takes the representations through which these

injustice and cultural

injustice is one such

Fraser stresses that the distinction is a heuristic device and that

Feminists need both to transform the cultural representations which

In the first instance

Petchesky, supra note 20.

Legal scholars had

against the Person

See infra at 141 for a discussion of the relevant

Section 17 prohibited the

However, after the Bourne

Since the adoption of the 1967 Abortion Act in Britain,

Women organized a well publicized train trip to

They became even less so when the Supreme