Abortion and the Citizens' Assembly: Agonist Futures?

Máiréad Enright

University of Birmingham

The 2016-2017 Irish Citizens’ Assembly served some feminist goals. However, it was structured around four flawed assumptions: 

First, abortion law was properly a subject for communal decision-making, even though some of the most intimate aspects of women’s lives were at stake.

Undoubtedly, women who had terminated pregnancies were involved in the 2016-2017 Assembly, and some of those who testified before it discussed their own experiences. But in general, perhaps reflecting an expectation that effective deliberation requires suppression of personal experience, abortion-seeking women were more spoken about than speaking.

Although several groups, including the Abortion Rights Campaign, submitted personal testimony to the Assembly, no woman was invited to speak in person as an expert from the position of her own everyday abortion experience. Instead, the Assembly heard anonymised audio recordings of personal experiences - experience was a mere artefact for collective evaluation. Women’s testimony - the very thing which had destabilised the Irish political settlement around abortion, making the Assembly ‘necessary’ – was tamed and packaged for the Assembly.

Second, abortion is a uniquely divisive issue, but that division is transcended by avoiding certain kinds of politics. 

The Assembly assumed that political views on abortion fall on either side of a binary pro-life/pro-choice divide. For example, at its fourth meeting, the Assembly heard advocates from ‘both sides’ of the debate, understood in typically polarised terms as ‘pro-choice vs. pro-life’. No space was made to contextualise that binary, or to consider how diverse positions on ‘either side’ might relate to one another. We can read these proceedings almost as an exhibition of the kind of engagement the Assembly wanted to avoid.

The Assembly was designated as above this fray; separate from the supposed everyday politics of abortion. It drew much of its legitimacy from that separateness. The chair (former Supreme Court judge, The Hon. Mrs. Justice Mary Laffoy) was, in the famous words of the Taoiseach (prime minister), an ‘appropriate woman’. The expert advisory group was chosen for its ‘impartiality and objectivity’.

This tri-partite structuring of politics - pro-choice, pro-life, and neutral ‘other’ - certainly produced legal proposals which were not stereotypically ‘pro’ or ‘anti’ abortion. But this was no achievement in itself. In particular, the aspiration to neutrality meant that the Assembly had insufficient time to engage with the nuances of a ‘pro-choice’ or even human-rights-oriented approach to abortion law. It’s ‘compromise’ solutions to the problem of Irish abortion law did not get very far beyond first principles. Arguably, having reached a majority position on liberalisation, the Assembly could usefully have spent several more meetings examining possible legal means of implementing that position, freed of the stark pro-choice/pro-life binary.

It followed that, third, the Assembly's job was not to devise innovative solutions to the problem of regulating abortion access in Ireland, but to choose from among a finite range of already well-established legal approaches.

This is clear from the framework in Ballot 4B (the vote of Assembly members on what should be included in abortion legislation), which was structured around the assumption that Irish abortion legislation would be based on therapeutic exceptions and gestational time limits. Participants were not given opportunities to consider non-exceptions-based models which would regulate abortion like any other medical procedure, or to compare the effects of exceptions-based and non-exceptions-based legislative models on abortion-seeking women.

Questions about access – where and from whom a woman may obtain an abortion, for example – were relegated to a section on ‘ancillary recommendations’ at the Assembly’s final meeting. Months later, as we try to pass abortion legislation, access is the primary ground of legal struggle.

Finally, citizens’ deliberation can and should be framed in the established terms of formal legal discourse.

As Eoin Carolan notes in this symposium, the Assembly’s deliberations were framed in terms which favoured legal discourse. The Assembly, for example, spent significant time on in abstract debates about the potential persistence of foetal personhood without an express constitutional provision to support it. Although this debate had occupied some constitutional scholars for some decades, it is not obvious that citizen members should have been required to engage in a discussion legal forms so specialised that it was difficult to contest the expert advice received on the issue. It would have sufficed for members to agree on whether, and why, they wanted to remove foetal rights from the Constitution, without also being required to design the removal mechanism.

Alternative proposals.

The four assumptions described at the outset limited what the Assembly could achieve. At times, however, Assembly members resisted them – sometimes in penetrating questions or spontaneous applause, at other times in concrete proposals for change: for example, citizens themselves added and approved a socio-economic circumstances exception to their legislative proposals.

The Assembly was most persuasive as an exercise in legal mobilisation when the citizens dissented from and remade the parameters of the deliberative process offered to them. I would argue that the Assembly’s procedures should reflect an agonistic ethos, which aims at cultivating productive and passionate conflict rather than aiming from the beginning to transcend conflict through consensus. How could a Citizens’ Assembly (or a non-state counter-Assembly) on similar issues embody that ethos?  Here are some (partial and revisable) suggestions:

1. The citizen members of the Assembly should have greater autonomy to set its agenda. The bounds of that agenda should not be determined by the existing constitutional framework, but should offer opportunities to critique and rethink it. The Assembly should be permitted to make recommendations for legislative as well as constitutional change.

2. 'Nothing about us without us'. Those most affected by the Assembly's deliberations should provide extended evidence to it, and form a key cohort of participants.

3. The Assembly should avoid abstract or inadequately-contextualised discussion of legal principle. To encourage an inclusive and empathetic perspective, deliberations should focus on concrete practical applications of proposed legal solutions. As well as case studies, they could use personal narrative and theatre to bring the stakes of Assembly decisions to life.

4. Preparation for participation in an Assembly should be separated from the Assembly’s eventual deliberations. We can learn in this respect from the international practice of Women’s Courts; non-state tribunals organised by local, regional or international women’s networks. The courts are preceded by an inclusive and democratic preparatory programme of community educational and artistic activities for participants. (We could, in fact, reframe the transformative consciousness-raising undertaken over many years by the grassroots Repeal campaign as an aspect of the ‘preparatory work’ for the 2016-2017 Citizens Assembly.  The Assembly should have embraced this work.) These activities allow participants to clarify and unpack common sense assumptions, and develop a deeper sense of their relationship to relations of domination affecting the issues under discussion. To ensure that high-quality information is available to participants, Assemblies should also be empowered to commission any necessary academic research not already in the public domain.

5. Lawyers’ role in the Assembly should be re-evaluated. Lawyers, including judges, are not only experts but participants with a stake in law reform processes. Where they participate in an Assembly, their expertise should not be insulated from challenge. Besides leading domestic lawyers, the Assembly should have had access to lawyers of international standing, with deep expertise on the topic under discussion, who can propose solutions which represent international best practice. Technical legal discourse should not dominate the discussion of law. The Repeal movement demonstrated that it is possible to communicate complex legal ideas accessibly through personal narrative, social media engagement,  literature, theatre and visual arts. Legal expert evidence should also be open to challenge, and placed in its full context using critical knowledge from a plurality of other disciplines. If the deliberative process succeeds, participating citizens should themselves develop substantial expertise in the legal issues under discussion. They should be empowered (if they wish) and paid to facilitate public legal education activities when the Assembly’s proceedings have ended, particularly as the Assembly’s recommendations are taken up in wider public discourse, and in parliament.

Máiréad Enright is a Senior Lecturer at Birmingham Law School. Her research is in feminist legal studies and law and religion, and she was a key campaigner for the repeal of the 8th Amendment to the Constitution. She is co-author (with Prof. Fiona de Londras) of the book Repealing the 8th: Reforming Irish Abortion Law (Policy Press, 2018).

Suggested Citation: Máiréad Enright, ‘Abortion and the Citizens' Assembly: Agonist Futures?’ IACL-AIDC Blog (5 December 2018) https://blog-iacl-aidc.org/debate-the-citizens-assembly-in-ireland/2018/12/5/abortion-and-the-citizens-assembly-agonist-futures