The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.
SHOULD THE UPCOMING referendum be passed, the above stated Eighth Amendment to the Constitution will be no more and it will be replaced. It’s proposed that the amendment would be replaced by the Thirty-Sixth Amendment and the text would read as follows:
Provision may be made by law for the regulation of termination of pregnancies.
In effect, these changes would remove the effective ban an abortion and place the responsibility on the Oireachtas to legislate for it. But how did this effective ban come about in 1983 and how did it change over the last 35 years?
Throughout the 1970s, there was a movement towards the liberalisation of abortion laws in the western world. Much of this came from the landmark Roe v Wade judgment in the US Supreme Court in 1973 which decided that a woman’s right to privacy extended to her decision to have an abortion.
In Europe, similar moves were being made.
A number of years after Ireland joined the EEC in 1972, both France and Germany introduced laws that legislated for terminations in various circumstances.
In Ireland, a 1974 Supreme Court case entitled McGee v The Attorney General found that individuals had a right to marital privacy and that this extended to the importation of contraception.
The potential similarities between this decision and Roe v Wade caused pro-life activists in Ireland to fear that a similar decision could be made here in relation to abortion.
As abortion was already illegal however, copperfastening this position offered somewhat of a challenge. It was determined that the best way to ensure there would be no change to the law was to push for a referendum that enshrine this ban in the Constitutional.
The Pro-Life Amendment Campaign was established to lobby for this and it set about seeking commitments from the various party leaders that they would hold a referendum.
The group was established in 1981 during a period where there were three general elections in less than 18 months. As such the leaders of the main parties were increasing susceptible to influence from grassroots movements such as PLAC.
The group used this instability to convince the leaders of both Fianna Fáil and Fine Gael to commit to a referendum.
Charlie Haughey after surviving a leadership challenge in 1983. Source: Eamonn Farrell/RollingNews.ie
During the second of those three governments, Charlie Haughey's Fianna Fáil published the wording of the referendum but his government fell soon afterwards.
When Garret Fitzgerald's Fine Gael took over in coalition with Labour, they proceeded with the same wording despite warnings that it would present legal problems down the line.
Wording
Fears around the wording of the referendum were manifold but among them was that it would require the balancing of rights between the unborn and the mother.
It was feared that this determination would have to be made at some point and that it would likely be left to the judiciary to determine that balance. It was also unclear what exactly constituted "unborn" with the Attorney General of the time Peter Sutherland describing the wording as “ambiguous and unclear”. In a memo to government dated 15 February 1983, Sutherland wrote:
In summary: the wording is ambiguous and unsatisfactory. It will lead inevitably to confusion and uncertainty, not merely amongst the medical profession, to whom it has of course particular relevance, but also amongst lawyers and more specifically the judges who will have to interpret it. Far from providing the protection and certainty which is sought by many of those who have advocated its adoption it will have a contrary effect.
“Further having regard to the equal rights of the unborn and the mother, a doctor faced with the dilemma of saving the life of the mother, knowing that to do so will terminate the life of “the unborn” will be compelled by the wording to conclude that he can do nothing."
Acting on this advice and the various other vocal critics of the proposed wording an alternative was proposed during committee stage:
Nothing in this Constitution shall be invoked to invalidate, or to deprive of force or effect, any provision of a law on the ground that it prohibits abortion.
A Dáil vote on this was not successful however and the original Fianna Fáil wording went forward to the referendum.
The referendum
As has been pointed out countless times in the three-and-a-half decades since the vote, the campaign itself was marked by a particular divisiveness that has rarely been seen in Irish society and which campaigners have been keen to prevent this year. The campaign was so toxic that a 1990 account of the referendum by Tom Hesketh was titled The Second Partitioning of Ireland?
On a turnout 53.7%, the referendum was passed by a majority of 66.9% in favour of the amendment to 32.1% against. It was signed into law just one month later.
The X Case
As was predicted prior to the passing of the referendum, the tension between the right to life of the mother and the unborn led to various legal difficulties, not least than in the X Case.
The 1992 case related to a 14-year-old girl who had become pregnant as a result of a rape and wished to travel to England to have an abortion.
The girl's parents had told gardaí about their intentions and the case made its way to the desk of the Attorney General.
In a decision that was criticised politically at the time, the Attorney General decided that it was necessary to apply to the High Court for an order preventing the child from travelling.
The High Court accepted on the basis of the evidence it heard that the teenager was at risk of suicide should the pregnancy continue and that therefore her life was at risk. It also accepted that there was a was a threat to the life of the unborn if the girl travelled to the England intending to have an abortion.
As UCD's Dr Eoin Carolan described in his presentation to the Citizens' Assembly last year, the case presented a difficulty for the High Court about whether the girl should be allowed to travel.
The case raised an important question which the text of Article 40. 3. 3 did not answer: what does the “equal right to life” of the mother and the unborn mean in a situation where there might be a conflict between the two rights?
"In other words, the High Court was faced with a situation where granting the order would mean there was a risk to the life of the mother while not granting the order would threaten the life of the unborn."
In the event, the High Court granted the order preventing the girl from leaving Ireland but in a hastily convened appeal, the Supreme Court disagreed.
The Supreme Court decided that abortion was allowed in circumstances where there was a substantial risk to the life, as distinct from the health, of the mother and that this risk could only be avoided by the termination of her pregnancy.
Further referendums
Later that year, the government proposed three amendments to the Constitution following on from the X case.
The Twelfth Amendment proposed to amend 40.3.3 to specifically allow for abortion where there was a real risk to the life of the mother but that this would not include a threat of suicide.
In other words, this would have permitted abortion in more limited circumstances than those allowed by the Supreme Court. This was rejected and as a result, the status quo remained – that is, terminations are allowed where there is a real and substantial risk to the life of the mother, including the risk of suicide.
Two other proposals were passed. Ireland voted to allow for the freedom to travel outside the State for an abortion. The amendment covering the right to obtain or make available information on abortion services abroad was also passed.
But the issue of suicide as a grounds for an abortion was put to the public again in 2002. Once more, it was rejected but this time the result was closer and the turnout at the polls was far smaller than in both 1983 and 1992.
Savita and the Protection of Life During Pregnancy Act
For about a decade following the 2002 vote, abortion remained an issue for those who agitated for the removal of the Eighth Amendment but it was not at the forefront of news or political discussion.
But a number of developments changed this.
Firstly, Ireland's restrictive abortion laws had been coming under increasing pressure from a number of international rights organisations.
In the A, B and C case in 2010, the European Court of Human Rights (ECHR) ruled that Ireland’ had failed to clarify the circumstances in which an abortion could be carried out.
The UN Committee on the Elimination of Discrimination Against Women was also critical of Ireland's legal position in 2011 and Irish politicians were forced to look at the issue.
An expert group was set up to examine how best to deal with the ECHR's ruling but its work was overtaken by the tragic death of Savita Halappanavar.
The young dentist's death made headlines around the world after it was reported that she was denied an abortion as she miscarried and contracted an infection. She died of blood poisoning.
The following year, Enda Kenny's Fine Gael government sought to legislate for the uncertainty in Irish law brought about by the X Case.
The Protection of Life During Pregnancy Act caused divisions in his party but was ultimately passed and is now the legal basis for limited abortion in Ireland.
The act allows an abortion to be carried out where it has been certified by two medical practitioners that it is necessary to avert a real and substantial risk of loss of the woman’s life from a physical illness.
Where the risk of loss of life relates to suicide, the act requires three medical practitioners, including two psychiatrists, to certify that the termination is necessary. In 2016, 25 terminations were carried out under the act.
2018
At the end of last year, the Joint Oireachtas Committee on the Eighth Amendment published its report for the Oireachtas that recommend a repeal of the 34-year-old amendment. The committee itself was established after the Citizens' Assembly made a similar recommendation that the amendment be removed from the Constitution and replaced with a provision directing the Oireachtas to legislate for terminations.
This proposed Constitutional change from the Citizens' Assembly has been followed by the current government who is seeking to repeal and replace the amendment in a referendum that will be held in under eight weeks time.
Announcing the referendum date of 25 May, Health Minister Simon Harris said politicians had been discussing the issue for a long time and that it is "time for the people to have their say".
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