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THERE HAVE BEEN calls in the past few days for a referendum on the 8th Amendment to the Irish Constitution.
The discussion began again in the wake of a case where a woman had a Caesarean section after being denied an abortion.
But what is this amendment, and why do people think it should be changed?
What is it?
The Eighth Amendment of the Constitution Act, 1983 was effected after a referendum which asked Irish people to vote on the State’s abortion laws.
In order to make a change to the constitution, a referendum has to be held. This was done 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.
What does this mean?
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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.
Since its introduction, clauses have been added that state the 8th Amendment cannot limit a person’s freedom to travel abroad, or her “right of information” of legal abortion services in other states.
In the most recent case reported on over the weekend, the woman and her unborn baby were represented by separate legal teams in court, the Sunday Times said.
Abortion in Ireland
- Abortion is a criminal offence in Ireland under the Offences Against the Person Act 1861 (1861 Act).
Putting it in context:
- In the UK, its Parliament passed the Abortion Act 1967, which allowed for abortion to be legally carried out within a range of specific circumstances.
- In 1973, the Roe v Wade case had ramifications for the availability of abortion in the US, with the Supreme Court holding that women had the right to abortion under the country’s Constitution.
- That same year saw the McGee v Attorney General Case in Ireland, which held that the Irish Constitution contained a right to marital privacy.
An Irish right to choose campaign was launched in 1981, as Senator Ivana Bacik writes in her essay on the subject.
The X Case and 40.3.3
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The X Case highlighted the issues with the 8th Amendment when a teenage girl became pregnant after being raped, and sought an abortion.
She had planned to travel to Britain, but the family contacted the gardaí beforehand to ask if DNA from the aborted foetus could be used as evidence in court.
The Attorney General became aware of the situation and sought an injunction under Article 40.3.3 to prevent the girl having the procedure.
This injunction was granted in the High Court, and then appealed to the Supreme Court, where it was overturned.
It was held by majority opinion that a woman had a right to an abortion under Article 40.3.3 if there was “a real and substantial risk” to her life.
This was not legislated for until the Protection of Life During Pregnancy Act.
The history behind the referendum
For a deeper look at the history behind the referendum and amendment, here’s our article, featuring items from the State Papers, such as this:
The Amendment was first proposed by Charlie Haughey’s government in 1982, and Garret Fitzgerald promised to follow through after the November 1982 election.
A free vote was allowed in the Dáil.
There was huge public interest in the referendum, and intense emotion and debate.
There was also much debate over the wording, which was initially supported by Fine Gael – until Fitzgerald was advised by his Attorney General that the proposed wording was flawed.
The original wording was the one put to the people.
Why do people want the 8th amendment repealed?
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With the Protection of Life During Pregnancy Act being passed, there is the possibility of women being allowed to have an abortion, but under very strict circumstances and having been seen by a panel of experts.
Some people feel that the 8th Amendment complicates this situation by further limiting or constraining women’s ability to have an abortion.
In September of last year, a campaign for the repeal of Article 40.3.3 was launched.
At the time, Joan Collins TD said:
The perverse logic of Art. 40.3.3, interpreted by the Supreme Court in 1992 and now enshrined in James Reilly’s Act, means medical conditions due to pregnancy that are not in themselves life-threatening (eg inevitable miscarriage – like Savita Halappanavar) must be allowed become life-threatening before it is legal to terminate a pregnancy.
Clare Daly said:
Even if Reilly’s Act was less restrictive, 40.3.3 and the X Case ruling would only allow abortion if a woman’s life is at risk due to pregnancy. It is unacceptable that the Constitution should make a distinction between a woman’s health and her life, or ban abortion on other grounds – including a woman’s choice – and force women overseas for abortions. Art. 40.3.3 must be repealed.
She said that allowing abortion to be made available only if pregnancy puts a woman’s health at risk, or in cases of rape, incest, or fatal foetal abnormality cannot be made while 40.3.3 is in the Constitution.
New calls for repeal
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New calls have been made over the past few days for the repeal of the 8th Amendment.
Labour’s Aodhán Ó Riordáin has led the calls. He wants the Constitutional Convention to be reconvened, according to the Irish Independent.
He said he thinks that the Government “has done as much as we can do within the constraints of the Constitution, we have no mandate to do any more”.
Other Labour colleagues of Ó Riordáin, including TD Ciara Conway and Senator Bacik, have supported him in this.
Also supporting its repeal are pro-choice groups such as Action for Choice, which wants the government…
to give an immediate commitment to call a referendum to repeal the eighth amendment and to introduce abortion legislation that give women living in Ireland full control over their reproductive choices.
However, TD Mattie McGrath has called on the Taoiseach to offer “immediate assurances” guaranteeing the protection of human life provisions contained in the Eighth Amendment to the Constitution.
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The UN criticised Ireland’s stance on abortion as recently as last month, saying:
The Committee reiterates its previous concern regarding the highly restrictive circumstances under which women can lawfully have an abortion in the State party owing to article 40.3.3 of the Constitution and its strict interpretation by the State party.
Will we see a referendum on the repeal of 40.3.3?
In February of this year, Tánaiste Joan Burton effectively ruled out the possibility of a referendum in the lifetime of this government on abortion in certain cases (rape, incest, and fatal foetal abnormality).
But after the past weekend, the calls for repeal of 40.3.3 have gotten louder. So too have the calls from the Pro-Life side for a change in law – but in relation to the Protection of Life During Pregnancy Act rather than the 8th Amendment.
It remains to be seen whether we will see a referendum on the repeal of 40.3.3 in the near future.
Do you think the 8th Amendment should be repealed?