'Empty Without and Empty Within’: The Unworkability of the Eighth Amendment after Savita Halappanavar and Miss Y”

Amendment has been reduced, over the years, to a catalogue of anomalies, unexplained readings, missed opportunities and speculative silences. Although the constitutional text might be applied in a manner that more appropriately recognises women’s autonomy as well as their rights to health, bodily integrity and privacy, this would require a fundamental shift in the interpretation of Art.40.3.3°, led either by the judiciary or the Oireachtas. This is a highly unlikely prospect owing to a likely reluctance by the judiciary to engage in such activism in the field of abortion jurisprudence, given the political fallout from the X case, probable political resistance to grasping the nettle of abortion law reform and cross-party disagreement on the appropriate legal regime in Ireland. In this sort of instance, constitutional reform by means of a referendum is clearly required. The shape of such reform might be decided following a period of consultation, perhaps by means of a specially-convened constitutional convention. However, before that can happen, we must agree, in principle, that the status quo is unsustainable. The cases of Miss Y and Savita Halappanavar, which frame this article, bring the hardship caused by the Eighth Amendment into stark relief.