Assessing the influence and legitimacy of citizen deliberation on abortion: A rejoinder to Eoin Carolan and Seána Glennon

Abstract

This article responds to the two key arguments presented by Eoin Carolan and Seána Glennon in their reply to our article: that the Citizens’ Assembly on abortion had a “consensus-clarifying” function rather than a “consensus-building” function in respect of the Irish constitutional amendment on abortion in 2018; and that participation in deliberative mini-publics should be compulsory, like jury service. We argue that the distinction drawn by Carolan and Glennon does not assist in understanding constitutional amendment processes, as the consensus required for a constitutional amendment must be fully formed, in respect of a specific amendment. We contend that the Irish Citizens’ Assembly assisted the formulation of that consensus in respect of abortion reform in Ireland. We argue that compulsory participation risks distorting the discursive environment that is essential to an effective and legitimate deliberative mini-public, and could fail to ensure the desired representativeness if exceptions to participation were allowed in certain circumstances.

1. Introduction

We are grateful to Eoin Carolan and Seána Glennon for their careful consideration of our article.¹ We had argued that constitutional amendment provisions, requiring the agreement of the legislative majority and at least one other constitutional actor, such as the people, voting in a referendum, serve the value of consensus democracy. Deliberative mini-publics can assist the formation of that consensus required for constitutional amendment. Specifically, Ireland’s Citizens’ Assembly on abortion helped to generate political and public support for a particular form of liberalization—abortion on request within the first twelve weeks—and made it easier for legislators to formulate an amendment proposal that attracted wide support. However, we raised concerns about the normative legitimacy of that impact, based on deficiencies in the representativeness of the Assembly.

Carolan and Glennon agree with much of our analysis but raise two important objections.² First, they challenge our claim that the Citizens’ Assembly helped build consensus for the constitutional amendment. Second, they query our response to the problem of attitudinal representativeness, suggesting instead that deliberative mini-publics should be made mandatory in the same way as jury service.

2. Influence

Carolan and Glennon characterize the role of the Assembly as consensus-clarifying, rather than consensus-building: the Assembly merely contributed to the specification of the broad public consensus for constitutional reform on abortion that already existed. This distinction does not assist analysis of constitutional amendment, however, because there are not discrete phases of consensus-building and specification. Unless a specified consensus is built, the thresholds for constitutional amendment are not met. We claimed the Assembly contributed to the consensus required for constitutional amendment in Ireland: an agreement between elected representatives and the people, the position of each being established by a simple majority of those voting, on a specific proposal. Even if there was, as Carolan and Glennon suggest, “an enduring preexisting public consensus over the core of the amendment ultimately proposed,” this was not the same as the consensus required for constitutional amendment, because (i) it did not relate to a specific proposal and (ii) it referred only to general public opinion and not the opinion of elected representatives whose agreement was also required. We did not claim that a mini-public provides an effective means of creating a novel constitutional consensus. Indeed, in a companion article that reviewed the political reception of all recommendations from Ireland’s deliberative mini-publics up to that point, we concluded that “deliberative mini-publics may facilitate the formation of public will—a consensus between the legislative majority and other constitutional actors—that is necessary for constitutional amendment to succeed. However, they do not of themselves generate the impetus for constitutional reform.”³ Evidence of prior support for some liberalization of Ireland’s abortion law is not inconsistent with our argument.

Carolan and Glennon seek to distinguish between the influence of the Citizens’ Assembly on the constitutional amendment and its influence on the legislative reform proposal. They point to opinion polls that showed “a significant majority in support of a constitutional change which would allow for abortion in a greater range of situations.”⁴ As explained in our original article, however, there is quite a distance between this public support and the ultimate constitutional amendment. Prior to the Assembly, opinion polls separately asked questions about constitutional reform—usually phrased in terms of repealing the Eighth Amendment—and policy preferences for any replacement regime. It cannot be assumed that the narrow majority supporting repeal and limited liberalization that existed prior to the Assembly would have survived a referendum campaign focused on how repeal would enable the Oireachtas to introduce legislation allowing for abortion on request, to which very large majorities were opposed before the Assembly commenced its work. The fact that the proposed legislative scheme was very much at the liberal end of the spectrum removed political force from any potential objection that the amendment would allow the Oireachtas to introduce a more liberal abortion regime. Indeed, Carolan and Glennon accept that “the legislative scheme and in particular the twelve-week proposal were. . . bound up to an extent with the referendum question when the matter came to be voted upon.”⁵ Accepting this, it is impossible to separate the Assembly’s influence on attitudes to the legislative scheme from its influence on attitudes to the constitutional amendment. The two were advanced in tandem and were considered by the public together. Knowledge and broad public acceptance—if not necessarily full endorsement—of the legislative proposal were critical components of elite and popular consensus on the constitutional amendment.

Carolan and Glennon do valuable work in showing how the Assembly’s proposal to permit abortion on request in the first twelve weeks of pregnancy set the agenda for the policy debate that followed, leading to the ultimate legislative proposal. But this influence does not undermine our claim that the Assembly helped build the consensus required for constitutional amendment. In the constitutional amendment context, the recommendations of deliberative mini-publics simultaneously place issues on the agenda and provide information as to whether they are likely to be supported by the public.⁶ Political representatives would have been slow to accept the abortion-on-request proposal as an agenda item were it not for the fact the Assembly showed, contrary to what opinion poll evidence suggested, a majority of voters at a referendum could support a constitutional amendment politically attached to such a legislative reform.

3. Legitimacy

In our article, we proposed mitigating the legitimacy risk posed by attitudinal bias through several measures, including collection of data on members’ pre-deliberation attitudes to be released in conjunction with the final recommendations. Carolan and Glennon contend this would create an air of secrecy and obfuscation surrounding a mini-public, undermining its trust-enhancing function. This concern has merit, but is outweighed by the potential adverse impact of early release of attitudinal data on the quality of deliberation. Deliberative democracy requires that deliberators engage with one another in a spirit of mutual respect and open-mindedness, focused on reasons and the formulation of epistemically strong decisions.⁷ The possibility of position changes is essential. Early release of attitudinal data, however, could incentivize participants to see themselves as defenders of their pre-deliberation position and as opponents of those with a different view. Open-minded consideration of the problem—let alone changing position—would become more difficult. External interest in the mini-public could shift from public deliberation on the issues towards a horse-race assessment of the extent to which participants’ attitudes might have changed. Publicizing pre-deliberation attitudes alongside the final recommendations, in contrast, avoids those problems, while equipping constitutional actors and the wider public with the necessary information to assess the attitudinal representativeness of the mini-public and, in light of that, the appropriate weight to be granted to its recommendations.

Carolan and Glennon argue in favor of compulsory participation in mini-publics, akin to jury service. It is unclear whether they anticipate a wide range of exclusions and grounds for excusal, like those often applicable for jury service. One scholar has estimated the potential jury pool in Ireland at less than half the total population.⁸ Another Irish study identified that over three quarters of the pool of jurors summoned for jury duty were subsequently removed through exemptions and selection processes prior to empaneling.⁹ Allowing potential members of mini-publics any grounds to avoid participation would reintroduce the risk of attitudinally unrepresentative assemblies.

The wider literature on mini-publics, moreover, takes it as inevitable that participation should be optional, albeit facilitated as much as possible through measures such as childcare support and stipends.¹⁰ The core idea of deliberative democracy involves participants coming together in a positive and open-minded spirit to think carefully about an issue, listen to counterarguments and reasons in support of different outcomes, and deliberate respectfully. This discursive environment would be threatened by the involvement of unwilling participants, present only under threat of sanction. At best, unwilling participants would chill the deliberations of others. At worst, they might actively disrupt the process.

Compulsory participation could also distort the institutional design of a mini-public. It would incentivize shorter mini-publics—to minimize the disruptive impact on people’s lives and potentially their employment—even if other factors favored greater time for deliberation and reflection, in particular as a safeguard against excessive elite control.¹¹ Abortion deliberations in the Irish Citizens’ Assembly took place over a seven-month period and involved five weekends of time committed by participants, in addition to preparatory work. It was critical that citizens who ultimately voted on the recommendations had participated in most of the Assembly’s work. The demands of this work program were illustrated by the high number of citizens who dropped out.¹² If participation were compulsory, it might not have been politically feasible to require such an investment of time and energy.

4. Conclusion

What influence can deliberative mini-publics have? Is such influence legitimate? We maintain our claim that the Citizens’ Assembly influenced the 2018 constitutional amendment on abortion. This influence is best understood as a contribution to forming the consensus required for constitutional amendment. The requisite consensus relates to a precise proposal for change that may be politically connected to legislative proposals which affect its likelihood of acceptance. The legitimacy of deliberative mini-publics, like all democratic and political processes, can be assessed along several dimensions, with a legitimacy gain in one dimension often causing a legitimacy loss in another dimension.¹³ Compulsory participation, even if feasible, would significantly undermine the discursive environment within a deliberative mini-public. By extension, this would undermine the legitimacy of a mini-public’s recommendations, depending as they do on a representative cross-section of the community deliberating under favorable conditions. Publication of pre-deliberation attitudinal data at the same time as the final recommendations, however, provides a valuable safeguard without undercutting the conditions required for meaningful deliberation.

The authors were both members of the Expert Advisory Group to Ireland’s Citizens’ Assembly that considered the issue of abortion, but this article was written in their personal capacity and does not represent the views of the Assembly nor of any of its members.

Footnotes

1

Oran Doyle & Rachael Walsh, Constitutional Amendment and Public Will Formation: Deliberative Mini-Publics as a Tool for Consensus Democracy, 20 Int’l J. Const. L. 398 (2022).

2

Eoin Carolan & Seána Glennon, The Consensus-Clarifying Role of Deliberative Mini-Publics in Constitutional Amendment: A Reply to Oran Doyle and Rachael Walsh, 22 Int’l J. Const. L. 191 (2024).

3

Oran Doyle & Rachael Walsh, Deliberation in Constitutional Amendment: Reappraising Ireland’s Deliberative Mini-Publics, 16 Eur. Const. L. Rev. 440, 461 (2020).

4

Carolan & Glennon, supra note 2, at 195.

5

Id. at 199.

6

Doyle & Walsh, supra note 1, at 406.

7

Jane Mansbridge et al., The Place of Self-Interest and the Role of Power in Deliberative Democracy, 18 J. Pol. Phil. 64, 67–9 (2010); Amy Gutmann, Democracy, Philosophy, and Justification, inDemocracy and Difference 344 (Seyla Benhabib ed., 1996).

8

Niamh Howlin, Multiculturalism, Representation and Integration: Citizenship Requirements for Jury Service, 35 Duke U. L.J. 148, 151 (2012). See also the Law Reform Comm’n, Report, Jury Service, Doc. No. LRC 107-2013 (Apr. 2013), www.lawreform.ie/_fileupload/Reports/r107.htm (acknowledging the non-representative nature of the jury pool generated by the relevant legislation).

9

Josephine Mulheirn, An Exploratory Study of Jury Representativeness in Ireland (2018) (M.A. Dissertation) (Technological Univ. Dublin), https://doi.org/10.21427/k6w0-5457.

10

Vincent Jacquet, Explaining Non-Participation in Deliberative Mini-Publics, 56 Eur. J. Pol. Rsch. 640 (2017); Clodagh Harris, Mini-Publics: Design Choices and Legitimacy, inThe Handbook of Democratic Innovation and Governance 45 (Stephen Elstub & Oliver Escobar eds., 2019).

11

Peter Bryant & Lucy Stone, Climate Assemblies and Juries: A People-Powered Response to the Climate Emergency 21–2 (Aug. 2020), https://sharedfuturecic.org.uk/wp-content/uploads/2020/08/Shared-Future-PCAN-Climate-Assemblies-and-Juries-web.pdf.

12

A total of fifty-three members dropped out of the Assembly over the course of its total eighteen-month work program, prompting the Chair to recommend a six-month maximum term: Report and Recommendations of the Citizens’ Assembly on the fourth and fifth topics (June 21, 2018), https://citizensassembly.ie/reports/.

13

Oran Doyle & Rachael Walsh, Deliberative Mini-Publics as a Response to Populist Democratic Backsliding, inConstitutional Change and Popular Sovereignty 224 (Maria Cahill et al. eds., 2021).