IRELAND VOTED TO repeal the Eighth Amendment in May of this year.
The amendment, which gave equal status to the life of the mother and the life of the unborn, was added to the Constitution in 1983. Some people had been campaigning for its removal from Bunreacht na hÉireann since then, while others fiercely defended it.
The country voted by 66.4% to 33.6% to remove the amendment, with over two million votes cast.
More than 170,000 women and girls have travelled from Ireland to another country for an abortion since 1980, with the vast majority going to Britain.
Over 3,000 women travelled to the England and Wales for abortions last year, while many others bought abortion pills online. Abortion services are expected to begin in Ireland in January.
Speaking after the referendum result, co-director of Together for Yes Ailbhe Smyth thanked the thousands of volunteers and canvassers who supported a Yes vote.
Smyth also stressed how much the campaign owed to the women and families who shared their personal experiences of how the Eighth Amendment affected them.
“I know how very difficult this is to do … none of us go around speaking about our health and very private matters in the public arena. And they did this because they believed so passionately in the importance of repealing the Eighth Amendment.”
In the lead up to, and aftermath of, the referendum on 25 May there was a heated debate as to whether or not the amendment should be repealed.
Here’s a (not exhaustive) timeline of the history of abortion in Ireland:
Abortion is first banned in Ireland in 1861 by the Offences Against the Person Act. This law stayed in place after Irish independence from Britain.
The Eighth Amendment of the Constitution Act came into effect after a referendum on 7 September 1983.
The wording of the amendment is:
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.
It is referred to as Article 40.3.3 of the Constitution.
The Amendment acknowledges the right to life of the unborn, equating it with the mother’s right to life.
When it was passed 31 years ago with a 67% majority, it was heralded as a victory for pro-life activists. Pro-choice activists who fought against the amendment’s insertion into the Constitution vowed to fight for its removal.
A 14-year-old girl who was pregnant after being raped was initially prevented by the courts from travelling to England to have an abortion. He story became known as the X Case.
The girl’s parents had told gardaí about their intentions, saying their daughter was suicidal, and the case made its way to the desk of the Attorney General.
The AG ruled that it was necessary to apply to the High Court for an order preventing the child from travelling, citing the Eighth Amendment. This ruling sparked national and international protests.
The ruling was later overturned by the Supreme Court, which said that the credible threat of suicide is grounds for an abortion.
The girl was then permitted to travel but it is understood that she suffered a miscarriage at a hospital in England following the hearing.
Further referendums
Later that year, the government proposed three amendments to the Constitution.
The Twelfth Amendment proposed to amend 40.3.3 to specifically allow for an abortion where there was a real risk to the life of the mother, but not in the case of the threat of suicide.
In other words, this would have permitted abortion in more limited circumstances than those allowed by the Supreme Court. This amendment 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 referendums were passed:
Another referendum asking if the threat of suicide as a ground for legal abortion should be removed was held. It is again rejected, this time marginally.
The European Court of Human Rights unanimously ruled that Ireland’s failure to implement the existing constitutional right to a lawful abortion when a woman’s life is at risk is a violation of the European Convention on Human Rights.
The ruling came in the case of A, B & C v Ireland.
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 established by the government to recommend options available to the State to implement the judgement by the Grand Chamber of the European Court of Human Rights. Its work is overshadowed by the death of Savita Halappanavar.
The 31-year-old dentist died on 28 October 2012 at University Hospital Galway. She was 17 weeks pregnant. The cause of death was recorded as severe sepsis, E.coli in the bloodstream and a miscarriage at 17 weeks.
Her death made national and international headlines and precipitated a huge rallying cry for changes to Irish law in respect of abortion.
Investigations into her death did not specifically examine whether Article 40.3.3 had any act or part in her illness but two of the three recommended further scrutiny of the law of the day. (Her parents later called for the Eighth Amendment to be repealed.)
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When discussing Ireland’s abortion laws in October 2017, the Oireachtas Eighth Amendment Committee heard from ir Sabaratnam Arulkumaran, Professor Emeritus of Obstetrics and Gynaecology at St George’s University of London. He was the author of the HSE report into Savita’s death.
“It was very clear to me during the inquiry that the thing preventing the physician from proceeding was the legal issue because she repeatedly said she was concerned about the legal issue. I will give a little bit of explanation,” he said.
The mother was sick. There was no question about that. Even at the last minute they were using a hand probe to see whether the baby’s heartbeat was present or not. Any junior doctor would have said it was a serious condition and they must terminate.
“They were just keeping her going because of the mere fact the heartbeat was there. The legislation played a major role in making a decision. Somebody else might say they would have done the termination much earlier. That is a personal interpretation. It is why things are made difficult because of the legislation.
“I agree that if the legislation had been different, Savita’s case would not have happened.”
The Protection of Life During Pregnancy Act was signed into law, legalising abortion when doctors deem that a woman’s life is at risk due to medical complications or if she is at risk of attempting suicide.
It also introduces a maximum penalty of 14 years imprisonment for having or assisting in an unlawful abortion.
This law gives effect to the 1992 Supreme Court ruling in the X Case which allowed abortion where the mother’s life, as opposed to her health, is at risk.
The United Nations Committee on Economic, Social and Cultural Rights called for a the 2013 Act to be reviewed and for what constitutes “a real substantive risk” to a woman’s life to be clarified.
The committee also calls for a referendum to be held on Ireland’s “highly restrictive” abortion legislation, citing concerns about the criminalisation of abortion, including in the cases of rape and incest and of risk to the health of a pregnant woman.
The United Nations Human Rights Committee said that Ireland’s ban on abortion subjected a woman carrying a foetus with a fatal abnormality to discrimination and “cruel, inhuman and degrading treatment”.
The Irish government was ordered to pay Amanda Mellet, who travelled to the UK for an abortion, €30,000 in compensation.
In June, the UN Human Right Committee again found that Ireland’s law prohibiting and criminalising abortion violated the human rights of a woman.
The finding, which can be read here, was made in relation to the case of Siobhán Whelan, who was denied an abortion in 2010 after the diagnosis of a fatal foetal abnormality.
The previous April, the Citizens’ Assembly recommended that the Eighth Amendment be replaced or amended, and that a provision should be made in the Constitution to allow the Oireachtas to legislate for abortion.
The CA recommended that terminations should be allowed without restriction up to the 12th week of pregnancy, for socioeconomic reasons up to the 22nd week of pregnancy, and during any period of the pregnancy in cases of fatal foetal abnormality (where the child is likely to die in the womb or shortly after birth).
Eighth Amendment Committee
An Oireachtas committee was set up to examine the CA’s recommendations. From September to December 2017, this group of 22 TDs and senators questioned medical and legal experts, as well as people who had personal experiences related to the topic.
Our liveblogs on the committee’s public sessions can be read here and the presentations made by speakers over the course of the hearings can be viewed here.
In its report, the Oireachtas committee recommended that the Eighth Amendment should be repealed, and that terminations should be allowed up to 12 weeks of pregnancy “with no restriction as to reason provided that it is availed of through a GP-led service delivered in a clinical context”.
The committee’s final report recommended the following:
Speaking at the time, Chairperson Senator Catherine Noone said: “It is fair to say that the issue of abortion remains one of the most divisive issues in Irish life and people hold deeply held views on the matter.
To that end the work of the Joint Committee was never about one side or the other. It was about women’s health and how best to ensure swift and safe support in sensitive and difficult cases.
“Termination of pregnancy and indeed continuation of pregnancy is not a black or white issue. Every case is unique.”
After much debate, on 25 May voters were asked if they want the Eighth Amendment to be repealed.
The country voted by 66.4% to 33.6% to remove the amendment, with over two million votes cast.
At 64.5%, the turnout was one of the highest ever recorded for a referendum in this country and the highest of any referendum since 1992.
Taoiseach Leo Varadkar described the result as “the culmination of a quiet revolution that has taken place in Ireland over the past 10-20 years”.
We trust women, and we respect them to make the right decisions for their healthcare … this gives the government the mandate.
President Michael D Higgins signed the referendum bill into law in September.
A stay was put on the result formally being enacted into law, as a number of individuals launched legal cases seeking to challenge the result of the referendum. The last of these appeals was dismissed by the Supreme Court in September.
The subsequent legislation passed through the Dáil and Seanad in December before being signed into law by President Michael D Higgins.
The Act allows for terminations of pregnancy up to 12 weeks. It also provides for terminations where there is a risk to the life or a serious risk to the health of the pregnant woman.
Women who have been given a diagnosis of fatal foetal abnormalities will now be able to legally avail of early termination of pregnancy in the hospital they are being treated in.
‘New era’
In a statement, Health Minister Simon Harris hailed the passing of the legislation as a “new era for Irish women”.
I can only imagine how the intensity of debate during the campaign and since then has felt for women who have themselves travelled abroad for a termination over many years, who felt the cold shoulder of judgment and the sting of shame at home, and the isolation of being alone and vulnerable abroad.
“They don’t forget, but the referendum result let a little welcome light into the shadows that were forced on their lives.
“I look forward to a time – not far away now – when we will be able to assure women experiencing crisis pregnancies that they will be looked after here at home, where they need not fear that they will be stigmatised for their choices or lack the support they and their families need from our health service.”
Abortion services, which in the vast majority of cases are expected to be handled by GPs, are due to begin operating in January. Some doctors have raised concerns about the logistics of this, but Harris and Varadkar have both said services will come into effect as planned.
This month the Taoiseach said abortion services may not be available in every hospital in January but terminations will be available.
“Like any new service it is going to have to be phased in,” he said, adding that “it may not be available in every single hospital and every single place, but the service will be available”.
Harris said an agreement has been reached between the Irish Medical Organisation and the Department of Health on a fee for GPs providing the service. Each GP has been written to, expressions of interest in providing the service have been sought.
The Irish College of General Practitioners, the professional and training body for Irish GPs, earlier this month issued its interim clinical guidelines to members who wish to provide abortion services.
Doctors wishing to exercise conscientious objection should “make such arrangements for the transfer of care of the pregnant woman concerned as may be necessary to enable the woman to avail of the termination of pregnancy concerned”, according to the legislation.
The HSE has also been working closely with the Irish Family Planning Association and the Well Woman Centre to ensure they are able to provide the service from January.
Contains reporting from Sinéad O’Carroll and Rónán Duffy
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