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FactCheck: Did Enda Kenny mislead the Dáil over the Eighth Amendment?

TheJournal.ie’s FactCheck looks into the Taoiseach’s controversial claim on a controversial issue, last week.

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TAOISEACH ENDA KENNY has been accused of misleading the Dáil over statements he made during a debate on the planned Citizens Assembly and the Eighth Amendment, on Wednesday.

David Gorman in Dublin 11 got in touch, asking us to examine his claims, so we did.

(Remember, if you see a claim that doesn’t sound right, email factcheck@thejournal.ie).

Claim: Voters on three occasions chose to keep the provisions of the Eighth Amendment Verdict: FALSE.

  • Voters have never been asked whether or not they wanted to keep the provisions of the Eighth Amendment (Article 40.3.iii of the constitution)
  • Under a broader interpretation (that voters kept the guaranteed right to life of the unborn), the Taoiseach is probably right for only one out of four constitutional amendments in question, but only if you interpret that guarantee as an absolute guarantee.

What was said

Source: TheJournal.ie/YouTube

During questions to the Taoiseach on Wednesday, and in an exchange with AAA/PBP TD Bríd Smith, Kenny said the following:

…The fact of the matter is that in 1983, the Eighth amendment was introduced into Bunreacht na hÉireann, the Irish constitution, by the Irish people.
And that was a guarantee to the right to life of the unborn. There were three referenda after that, and in each case, in each of those referenda, by the people, not just by any parties, the people decided to keep that reference in the constitution.

AAA/PBP TD Ruth Coppinger interjected:

Sorry, Ceann Comhairle, that’s completely incorrect. People did not vote on the Eighth Amendment. They voted on side issues, like information.

Kenny followed up:

The insertion into the constitution of the Eighth Amendment, guaranteeing the right to life of the unborn, was endorsed by the people, interpreted by the Supreme Court, we legislated for that in respect of the Protection of Life bill in the period of the last government.

The Abortion Rights Campaign, which is calling for the repeal of the Eighth Amendment, called Kenny’s claim “untrue.”

TFMR Ireland, the campaign to make the termination of a pregnancy legal for medical reasons, said the Taoiseach had “deliberately misled the Dáil”, and called on him to correct his statement.

The Facts

enda8th Source: Oireachtas.ie

The Eighth Amendment in 1983 created subsection 3 of section 3 of Article 40 of the constitution:

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.

Subsequent to that, there were two referenda (not three) on four proposed constitutional amendments relating to abortion.

Let’s refer to what the Eighth Amendment created as “subsection 3″, and see what those two referenda addressed.

In March 1992, the Supreme Court ruling in the “X Case” effectively allowed for abortion where a woman’s life is in danger, including a risk of suicide (among other provisions).

Later that year, three constitutional amendments stemming from the X Case were placed on the ballot in a referendum on the same day.

The 12th Amendment, 25 November 1992

Would have retained the ban on abortion except where a woman’s life is in danger, but effectively retracted the suicide exception introduced in the X Case, and inserted these words at the end of subsection 3:

It shall be unlawful to terminate the life of an unborn unless such termination is necessary to save the life, as distinct from the health, of the mother where there is an illness or disorder of the mother giving rise to a real and substantial risk to her life, not being a risk of self-destruction.

That amendment was defeated.

The 13th Amendment, 25 November 1992 

Allowed women to travel in and out of Ireland to terminate a pregnancy, by inserting this paragraph at the end of subsection 3:

This subsection shall not limit freedom to travel between the State and another state.

That amendment was passed.

The 14th Amendment, 25 November 1992

Allowed for the distribution of information on abortion services available outside Ireland, by inserting this paragraph at the end of subsection 3:

This subsection shall not limit freedom to obtain or make available, in the State, subject to such conditions as may be laid down by law, information relating to services lawfully available in another state.

That amendment was passed.

The 25th Amendment, 6 March 2002

Would have retained the ban on abortion except in cases where a woman’s life is in danger, but retracted the suicide exception, by implementing the proposed Protection of Human Life in Pregnancy Act and creating subsections 4 and 5 after subsection 3 in section 3 of Article 40 of the constitution.

That amendment was defeated.

What did Enda Kenny mean?

Pro Choice Demos Protests A pro-choice demonstration in Dublin before the 1992 referendum. Source: RollingNews.ie

We asked the Taoiseach’s department for evidence to support his claim, but did not receive a response, so we’ll have to try to interpret it ourselves.

There are two possible interpretations of the Taoiseach’s claim. As a reminder, this was the crucial part:

There were three referenda after that [the Eighth Amendment in 1983], and in each case, in each of those referenda, by the people, not just by any parties, the people decided to keep that reference in the constitution.

If by “that reference” he meant subsection 3 itself (that is, what the Eighth Amendment created), then the claim is clearly FALSE.

None of the four amendments proposed replacing or removing subsection 3, and therefore voters were never asked whether they wanted to “keep” it.

The 25th Amendment would have left subsection 3 completely untouched, but added subsections 4 and 5.

Three of them (the 12th, 13th and 14th) proposed adding words to subsection 3. One of those (the 12th) was rejected, and the other two were passed.

So out of the three cases where it was proposed that words be added to subsection 3 (not that subsection 3 be removed), voters only rejected one of them.

Alternative explanation?

ABORTION REFERENDUM CAMPAIGN POSTERS RELIGIOUS ISSUES RELIGION IN IRELAND An anti-abortion poster, calling for a Yes vote in the defeated 2002 referendum. Source: Gareth Chaney/RollingNews.ie

By “that reference” Kenny could have meant the Eight Amendment’s “guarantee to the right to life of the unborn” which he referred to in the Dáil.

However, his claim is FALSE even under this much broader interpretation.

Voters have never been asked whether they wanted to keep, remove or replace that guarantee in the constitution. 

In the 12th and 25th Amendments, they were asked whether they wanted to add an exception to the abortion ban where a woman’s life is in danger, and a non-exception where there is a risk of suicide.

The guarantee itself (and its wording) would have stayed in place, but it would not have been an absolute guarantee.

The dynamic of the 12th Amendment campaign (several high-profile bishops and pro-life groups called for a No vote), probably meant that the voters’ rejection of it was a move towards an absolute guarantee.

So the Taoiseach is probably right in this case, but only if you interpret the guaranteed right to life of the unborn as an absolute guarantee.

The dynamic of the 25th Amendment campaign was different. Opinion polls in the Irish Independent and Ireland on Sunday showed only 22 and 23% of voters opposed abortion under any circumstances.

Groups like the Irish Council on Civil Liberties, the National Women’s Council of Ireland, and Abortion Reform were strongly against the amendment, while Irish bishops came out in favour of it.

The voters’ rejection of it should therefore be interpreted as a move away from any absolute guaranteed right to life of the unborn, and a move to keep the exceptions effectively brought in under the X Case.

But again, that guarantee itself was never in jeopardy in either of those amendments.

The 13th and 14th Amendments were about the right to travel outside the jurisdiction and the right to information about services available outside the jurisdiction, and therefore had no bearing on the guaranteed right to life of the unborn.

Conclusion

fg 888 90409748 Source: Sam Boal/RollingNews.ie

Under one interpretation (that voters decided to keep the provisions of the Eighth amendment), Kenny’s claim was entirely FALSE.

Voters have never been asked whether or not they wanted to keep, replace or remove Article 40.3.iii of the constitution, which is what the Eighth Amendment created.

Under a broader interpretation (that voters decided to keep the spirit of the Eighth Amendment, the guaranteed right to life of the unborn), the Taoiseach is probably right about only one out of the four constitutional amendments in question.

And he is only right if the guarantee in the constitution is strictly interpreted as an absolute guarantee.

For that reason, the claim is also FALSE under this interpretation.

We asked the Taoiseach’s office whether he accepted that his claims were false, and if he would be retracting or modifying them, but we did not receive a response.

You can read the full transcript of Wednesday’s debate here, or watch the video here: Part 1 (starts 46 mins), Part 2

Watch this space: TheJournal.ie asked all 158 TDs for their view on the Eighth Amendment. On Tuesday morning, find out what they told us, and look out for a poll that gauges the mood of the nation. 

Send your FactCheck requests to factcheck@thejournal.ie [embed id="embed_3"]

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Dan MacGuill

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