Eighth Amendment of the Constitution of Ireland

The Eighth Amendment of the Constitution of Ireland introduced a constitutional ban on abortion. It was effected by the Eighth Amendment of the Constitution Act, 1983, which was approved by referendum on 7 September 1983 and signed into law on the 7 October of the same year.

The amendment was adopted during the Fine Gael–Labour Party coalition government of Garret FitzGerald but was drafted and first suggested by the previous Fianna Fáil government of Charles Haughey. The amendment was supported by Fianna Fáil and some of Fine Gael, and was generally opposed by the political left. Most of those opposed to the amendment insisted that they were not, nonetheless, in favour of legalising abortion. The Catholic hierarchy spoke out in favour of the amendment, but it was opposed by the other mainstream churches. After an acrimonious referendum campaign, the amendment was passed by 67% voting in favour to 33% voting against.

Changes to the text

The Amendment inserted a new sub-section after section 3 of Article 40. The resulting Article 40.3.3° reads:

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.

Background

In 1983, abortion was illegal in Ireland under the Offences against the Person Act 1861; the Eighth Amendment was introduced to prevent it being legalised at any time in the future. Opponents of abortion sought the amendment partly because of fears that the Irish Supreme Court might infer an implicit right to an abortion in the provisions of the constitution.[1] The court had already ruled, in the 1973 case of McGee v. The Attorney General, that reference in Article 41 to the "imprescriptable rights, antecedent and superior to all positive law" of the family conferred upon spouses a broad right to privacy in marital affairs. It was feared that this right might be extended to include the right to an abortion.[1] There was further concern that the Supreme Court might take its lead from developments in judicial review in other nations, such as the controversial ruling of the United States Supreme Court in the 1973 case of Roe v. Wade.[1] In January 1973 The US Supreme Court decided in favour of abortion in Roe v. Wade on privacy grounds; the same grounds as was used by the Irish Supreme Court in December of the same year to strike down a statutory prohibition on the importation of contraceptives.

The campaign to introduce a constitutional ban on abortion so as to prevent an Irish Roe v. Wade was begun by a group of pro-life campaigners under the banner of the Pro-Life Amendment Campaign (PLAC). Prior to the 1981 general election, PLAC lobbied all the major Irish political parties at the time – Fianna Fáil, Fine Gael and the Labour Party – to urge the introduction of a Bill to allow the amendment to the constitution to prevent the Irish Supreme Court so interpreting the constitution as giving a right to abortion. The leaders of the three parties – respectively Charles Haughey, Garret FitzGerald and Frank Cluskey – agreed although there was little consultation with any of their parties' ordinary members.[2] All three parties were in government over the following eighteen months but it was only in late 1982, just before the collapse of a Fianna Fáil minority government, that a proposed wording for the amendment was produced.

Oireachtas debate

The bill introduced by the Fianna Fáil minority government proposed to introduce the following clause into Article 40.3 of the Constitution:

3° 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.

FitzGerald and Fine Gael initially supported the wording, but, when in government, FitzGerald was advised by his Attorney-General, Peter Sutherland, that the wording as proposed was dangerously flawed. Speaking against the original wording during the Dáil debate Alan Shatter TD argued that:

The irony is that I have no doubt, not merely from the interpretation the Attorney General has given but from the other interpretations that can be validly taken from the amendment, that if it in its present form becomes part of our Constitution it will essentially secure a constitutional judgment in the not too distant future requiring the House to enact legislation to permit women to have abortions.[3]

To remedy the perceived weaknesses in the original wording of the amendment bill the government proposed an amendment to the bill during the committee stage with the following alternative wording:

3° 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.

This alternative wording was criticised by the opposition for not being "pro-life". Speaking against the alternative wording Michael Woods TD said that:[4]

The amendment proposed by Fine Gael would not protect the constitutional right to life of the mother against attack by any future legislation which sought to prohibit abortion in all circumstances even when the life of the mother was at risk. This is a defect which could be important in the future. Such legislation could not be declared unconstitutional on the grounds that it ignored a mother's right to life because the Fine Gael wording provides that nothing in the Constitution may be invoked to invalidate any law which prohibits abortion.

The government amendment was defeated by 87 to 65 and the original wording proposed by Fianna Fáil was the one put to referendum.

Referendum campaign

A subsequent referendum on the original wording took place in 1983. It was supported by PLAC, Fianna Fáil, some members of Fine Gael, the Roman Catholic hierarchy and opposed by various groups under the umbrella name of the Anti-Amendment Campaign (AAC), including Labour senator (and future President of Ireland) Mary Robinson, and feminist campaigners. Except for Garret FitzGerald, few in Fine Gael or Labour campaigned against the referendum. Sinn Féin and the Workers' Party strongly opposed the amendment and the Irish Council of Churches (representing the main Protestant churches) campaigned against it.[5] The Amendment passed on 7 September 1983 endorsed by 67% of those who voted.

Result

Eighth Amendment of the Constitution of Ireland referendum[6]
Choice Votes %
Referendum passed Yes 841,233 66.90
No 416,136 33.10
Valid votes 1,257,369 99.32
Invalid or blank votes 8,625 0.68
Total votes 1,265,994 100.00
Registered voters and turnout 2,358,651 53.67

Aftermath

The 'X Case'

Main article: Attorney General v. X

The Amendment ran into serious difficulty in the early 1990s, when the Irish Supreme Court was forced to deal with a crisis over the pregnancy of a fourteen-year-old girl victim of rape by a school friend's father. An earlier High Court order, in vindicating the rights to life, had prevented the girl from getting an abortion abroad. This order was successfully appealed in the Supreme Court in what came to be known as the 'X Case'. She was given the freedom to travel to receive an abortion abroad, though, in reality, she had in the meantime miscarried. A further series of referendums took place to adapt and clarify the 'Pro-Life Amendment'; among those carried were clauses stating that the Eighth amendment could not limit a person's freedom to travel abroad nor her 'right of information' of legal abortion services in other states (Thirteenth and Fourteenth amendments).

The Pro Life Campaign, a successor to PLAC, accused the Supreme Court of misinterpreting both the law and the will of the people. The Government and former Attorney-General Peter Sutherland dismissed such claims, arguing that, as they had claimed in 1983, the 'Pro-Life Amendment' was so poorly worded and ambiguous that it could facilitate either pro-choice or anti-abortion interpretations in different circumstances. The Amendment was not reinterpreted by the Supreme Court on the grounds originally voiced by Peter Sutherland that it would lead to abortion prior to viability or kill women by refusing standard treatments for ectopic pregnancies, cancerous wombs, etc. There was no medical evidence called during the X case hearings.

Subsequent abortion referendums

Opponents of the Eighth Amendment argued in 1983 that its wording was overly vague. Since its adoption, four attempts have been made to clarify the precise meaning of the ban on abortion.

There have been two failed attempts (the Twelfth Amendment Bill in 1992, and the Twenty-fifth Amendment Bill in 2002) to strengthen the constitutional ban so that it cannot be interpreted as giving to a woman the right to have an abortion if she claims that she will otherwise commit suicide.

On the other hand the Thirteenth Amendment and the Fourteenth Amendment (both in 1992) were two successful attempts to loosen the ban, by guaranteeing a pregnant woman's right to freedom of travel and to information about abortion services available abroad respectively.

Legislation

The Protection of Life During Pregnancy Act 2013 was passed to give effect in statute law to the limited right to abortion established by the X Case. It replaced the Offences against the Person Act 1861 offence of "unlawfully procuring a miscarriage" with a new offence of "destruction of unborn human life", punishable by up to 14 years' imprisonment.[7][8] In February 2015, Clare Daly's private member's bill to allow abortion in cases of fatal fetal abnormality was rejected in the Dáil; the government argued that the bill was unconstitutional, which Daly disputed.[9][10][11]

See also

References

Oireachtas debates

House 1st stage 2nd stage Committee stage Report stage Final stage
Dáil 2 Nov 1982; 2 Feb 1983 Feb 9, 15, 17 (1) 17 (2), 23; Mar 2, 8, 24 Apr 27 (1), 27 (2) Apr 27
Seanad May 4, 5, 10, 11 May 18, 19 (1), 19 (2) May 25 (1) 25 (2) 25 (3), 26 May 26

Notes

  1. ↑ 1.0 1.1 1.2 Government of Ireland. All-Party Oireachtas Committee on the Constitution, ed. Green Paper on Abortion (PDF). Fifth Progress Report: Abortion (Dublin: Stationery Office). p. A589. ISBN 0-7076-6161-7. Archived from the original (PDF) on 21 July 2011.
  2. ↑ Barry Gilheany (1998). Vicky Randall, ed. The state and the discursive construction of abortion. Gender, Politics and the State (Reprint ed.) (Routledge). p. 72. ISBN 9780415164023.
  3. ↑ Dáil Eireann Debate Vol. 340 No. 3 Col. 533.
  4. ↑ Dáil Éireann Debate Vol. 341 No. 10 Col. 2021
  5. ↑ http://www.thejournal.ie/1982-irish-council-of-churches-opposed-anti-abortion-amendment-709821-Dec2012/
  6. ↑ "Referendum Results" (PDF). Department of the Environment, Community and Local Government. Retrieved 12 March 2012.
  7. ↑ "Protection of Life During Pregnancy Act 2013, §22". Irish Statute Book. Attorney-General of Ireland. 30 July 2013. Retrieved 11 February 2015.
  8. ↑ "Head 18: Repeal and Consequential Amendments and Head 19: Offence" (PDF). General Scheme of the Protection of Life During Pregnancy Bill 2013 (PDF). Irish Government News Service. 30 April 2013. pp. 30–32. Retrieved 11 February 2015.
  9. ↑ "Protection of Life in Pregnancy (Amendment) (Fatal Foetal Abnormalities) Bill 2013: Second Stage (Resumed) [Private Members]". Dáil Éireann debates. 10 February 2015. Retrieved 11 February 2015.
  10. ↑ O'Connell, Hugh (10 February 2015). "‘A shameful abandonment’: Just one Labour TD defies party as Clare Daly’s abortion bill voted down". TheJournal.ie. Retrieved 11 February 2015.
  11. ↑ "Protection of Life in Pregnancy (Amendment) (Fatal Foetal Abnormalities) Bill 2013 [PMB] (Number 115 of 2013)". Bills 1997–2015. Oireachtas. Retrieved 11 February 2015.

External links