Impossible Floodgates and Unworkable Analogies in the Irish Abortion Debate

Abstract

The debate about the introduction and form of abortion legislation in Ireland is rife with floodgate arguments, suggesting (either implicitly or expressly) that the introduction of abortion legislation within current constitutional boundaries would only be a starting point, following which so-called ‘abortion on demand’ would flow. The recent discussions at the Oireachtas Committee on Health and Children showed little prospect of a break from this pattern. At those hearings, a number of parliamentarians asked repeatedly whether the introduction of limited abortion pursuant to the current constitutional position would result in widely available abortion. Then—as in quite common in Irish abortion discourse—the abortion regime operating under the British Abortion Act 1967 was expressly referred to as an example of a possible ‘end point’ for Irish abortion law. In this article we address three of the core legally-grounded ‘floodgate’ arguments that are made, outlining how these fears are unfounded, disingenuous, and, more particularly, how comparisons to the British abortion regime are unhelpful, by reference to the constitutional position in Ireland. These arguments relate to: the lack of a time limit on the availability of abortion; suicidal ideation; and the possibility of patient-doctor collusion. This paper aims to show that these arguments have no current legal purchase within the Irish context and ought not to be given undue weight in the debates. Rather, the fears and concerns represented by these floodgate arguments are already managed by the very limited constitutional availability of abortion. They ought not, as a result, to bear in any meaningful way on the current process of legislative design which should instead be committed to introducing a clear, workable and effective legislative framework for women in Ireland to exercise their right to access an abortion where they wish to do so in a manner that reflects the constitutional position.