Does Ireland need a constitutional right to health after the COVID-19 pandemic?

Abstract

There will be many legal legacies of the COVID-19 pandemic. This commentary argues that one of them should be the constitutionalisation of the right to health in Ireland. The overriding objective of saving lives has not always been explicitly linked with fundamental rights protection in government communications or the mainstream media. When the state police power permits the adoption of extraordinary measures to protect the public’s health, why would there be a need for a constitutional right to health? This commentary argues that the existence of a constitutional right to health in Ireland would make the process of designing, implementing and explaining the necessity of restrictions in times of public health crisis a more transparent exercise. Moreover, a constitutional right to health would provide a normative and procedural framework for reviewing government decisions that restrict one aspect of the right to health (for example maternity care) to protect another (protection from infectious disease). This commentary links these considerations to the recent proposal to amend the Irish Constitution to include a right to health and addresses the concerns raised about such a process in light of the benefits of a constitutional right to health as well as the social changes wrought by the COVID-19 pandemic. The commentary also evaluates the constitutional text that was proposed and highlights some of the considerations that must be taken into account when drafting a constitutional right to health.