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

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 post-colonial 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 ‘pro-life’ 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 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.