Irish Centre for Human Rights Blog

Anna Arstein-Kerslake is an Associate Professor at the National University of Ireland Galway and Melbourne Law School

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I grew up in California, where we enjoy some of the most progressive abortion rights in the world. I grew up knowing that I could get an abortion if I needed to or wanted to. I grew up knowing that I had reproductive choice. When I moved to Ireland in 2011, it was difficult for me to imagine that I would have to fly to another country if I was ever in a situation where I wanted or needed to have an abortion.

After I had been living in Ireland for several years, I was having a pint with a friend when she asked me if I thought I would settle in Ireland permanently. Although I have no ancestral roots here (contrary to most Americans), I felt like Ireland was home after just a few months living here. However, when faced with the question of whether I would settle in Ireland permanently, my instinctual response was – “No, because if I ever have a daughter, she wouldn’t have access to full reproductive choice.”

I wanted to ensure that any future daughters that I had would be able to live with the knowledge that they are respected as individuals on an equal basis with men. That their bodies are respected on an equal basis with men’s bodies. And that if they needed an abortion or wanted an abortion, they would be able to do so safely and easily.

It is perhaps relevant to mention that, although I am not religious now, I grew up in a strong Lutheran family. I went to Sunday school every week and completed confirmation and participated in my first mass when I was 14 – as is standard in Lutheran communities. I moved away from Lutheranism because of exclusionary practices that were incongruous with my personal values. Such as the exclusion of the LGBTQIA+ community and people from other religions. As well as the teaching of abortion as sinful or immoral.

Now, 11 years after first moving to Ireland, I have had two daughters and Ireland has opened the door to respect for reproductive choice. The 2018 referendum in Ireland resulted in a landslide determination that there is no room in the Irish Constitution for limitations on reproductive choice. There are still many barriers to ensuring safe access to abortion for all women. However, Ireland has taken the most important step – constitutional reform to ensure that there is a legal pathway to guarantee safe and easy access to abortion in Ireland. Women’s bodies and women’s choices are protected by the constitution – not left up to political forces. Now, my daughters can exist with the knowledge that the Irish Constitution respects their bodies and their reproductive choices. 

Paradoxically, it seems that the same may not be able to be said for the United States. The recently leaked Supreme Court decision indicates that the Court is going to overturn Roe v Wade, which is the long-standing decision that secured the right to choose to have an abortion as part of the right to privacy in the US Constitution. The leaked decision indicates that the right to reproductive choice will no longer be part of American constitutional law. Instead, it gives states the power to regulate reproductive choice. The result will likely be that the right to reproductive choice will not be respected in a large portion of the United States.

The leaked decision treats women’s bodies and women’s autonomy as issues to be determined by political forces. Justice Posner once said “’If changing judges changes law, then it is not clear what law is.” To me, this leaked decision epitomises Posner’s statement. If a new set of justices is willing to upend a well-settled legal principle – that the right to reproductive choice is part of the constitutional right to privacy – then, we must question the ability of the Court to develop decisions based on law and legal precedent.

The leaked decision appears to have clear political and personal bias woven throughout. It often appears in the guise of ‘legal reasoning.’ However, such ‘legal reasoning’ is profoundly different from that expressed by the Court for more than four decades. This is not the first time that the Court has acted with seemingly political and/or personal goals – however, it is arguably the most brazenly that it has ever done so.

Yesterday, over coffee (pints are a rare luxury for me these days) my friend asked me about my feelings on the leaked Supreme Court decision. My response, was, “Well, our daughters’ reproductive choices are likely now going to be better protected in Ireland than in the United States.”

Perhaps, this isn’t surprising. Ireland has one of the youngest populations in Europe and it is progressing both socially and technologically at high speeds. Perhaps, I am simply lamenting that this leaked Supreme Court decision seems to be just another indication that, in many ways, there are sectors of the United States that are regressing. Regressing into a world that mirrors the social reality of nearly 50 years ago. Where women were forced to risk their health and their lives in order to make decisions about their own bodies. And where only privileged, wealthy (mostly white) women had access to reproductive choice through travel or other resource intensive means. Where women were forced to carry out unwanted pregnancies that resulted in financial dependence on men – often leading to abuse and socio-economic depression.

I am tired of these regressions. Tired of arguing for why we should be able to make choices about our own bodies. Tired of the politically motivated roadblocks that appear to be using women’s bodies as a tool to progress a particular conservative ideology. Instead of perseverating on these old arguments, I would like to simply point Americans towards Ireland as a beacon of hope. There is considerable work that remains to be done to ensure reproductive equality and choice in Ireland. However, the Constitution here is no longer against us, and the roadblocks are crumbling. Tides can change very quickly – in Ireland, they are changing for the better.