Eighth Amendment

Q&A: What will we be asked to vote on in the Eighth Amendment referendum?

You asked, we answer.

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In our Q&A: Eighth Amendment Referendum series, we are answering questions our readers have submitted in relation to the upcoming vote on 25 May.


A number of people had queries about the practicalities of voting. We’ve rounded them all up here. 

When is the referendum taking place?

On Friday 25 May.

What is the wording of the question we’ll be asked in the referendum?

You will be voting on whether or not to approve the Thirty-Sixth Amendment to the Constitution Bill. If approved, this Bill (which you can read here) would see the text of 40.3.3 of the Constitution being removed (repealed) and replaced.

If it is approved, it would be the 36th amendment to the Constitution, hence the bill’s name. The question on the ballot paper will be:

  • Do you approve of the proposal to amend the Constitution contained in the undermentioned Bill?

This is what the ballot paper will look like – via the Referendum Commission.

PastedImage-51089 Referendum Commission Referendum Commission

You will vote by marking an X in either the Yes box of the No box.

You are not to mark both boxes or make any other mark on the ballot paper, or your vote will not count.

What does it mean when it talks about a ‘proposal to amend’ Article 40.3.3?

This refers to the Thirty-Sixth Amendment of the Constitution Bill 2018 which will allow repealing (removing) Article 40.3.3 and replacing it with this line:

“Provision may be made by law for the regulation of termination of pregnancies.”

This means that the Oireachtas can legislate for the termination of pregnancies, and paves the way for legislation to be drafted regarding abortion which wouldn’t be affected by the Constitution.

It would mean that the right of the unborn is no longer in the Constitution, so any abortion law would not have to be made with regard to this former constitutional right. Up until now, any laws on abortion have had to be interpreted with regard to the Constitution, in order to be found constitutional.

The bill mentioned above – the Thirty-Sixth Amendment of the Constitution Bill – is a different bill to the bill mentioned below, the General Scheme of a Bill to Regulate Termination of Pregnancy.

What is the Eighth Amendment?

By ‘the Eighth Amendment’, we mean the Eighth Amendment to the Irish Constitution.

This amendment was voted in by a referendum on 7 October 1983.

Article 40 in the Constitution concerns fundamental rights and, within that section, personal rights.

The Eighth Amendment referendum in 1983 inserted subsection 3 into section 3 of Article 40 (that’s what we mean when we say ‘Article 40.3.3′).

This subsection 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.

It is this subsection that, in the event of a Yes vote, would be removed and replaced.

So, what happens if there is a Yes vote?

In the event of a Yes vote, Article 40.3.3 of the Constitution will be removed and replaced by this line: “Provision may be made by law for the regulation of termination of pregnancies.”

Will there be a referendum on the wording of the law mentioned here?

You are not being asked to vote on the law – the law is made by the Oireachtas.

Do we know what this law will be?

A draft of the proposed law (called General Scheme of a Bill to Regulate Termination of Pregnancy) has been published by the Health Minister, Simon Harris.

You might have heard mention of the ‘Heads of the Bill’. The Heads of Bill follows on from the general scheme and, in the event of a Yes vote, would set out more clearly the intended bill. For now, the general scheme is setting out the framework for the proposed legislation.

You can read the general scheme of the Bill here.

These details aren’t set in stone – general scheme is just a framework and will go on to be amended before it becomes the draft Bill.

This Bill will then be published and referred to an Oireachtas committee for consideration. The finalised Bill will then have to pass through the Houses of the Oireachtas before it becomes law.

When will this bill become law?

A bill doesn’t become law until it becomes an Act.

To become an Act, it needs to be passed (approved by vote) through the Dáil and Seanad.

It usually has to go through different stages in each of these Houses (you’ll find the full process here).

The Bill has to be signed into law by the President in order for it to become an Act and be added to the Statute book.

We don’t have a date as to when – in the event of a Yes vote – this Bill could become law, but as the general scheme has been drafted we know that in the event of a Yes vote, work could immediately begin on the process.

We do know, however, that Minister Harris said that though he hopes the legislation will be in place by the end of 2018, there is the possibility that a general election could be an issue.

What happens in the case of a No vote?

The Referendum Commission says:

“If a majority votes No, then the present Article 40.3.3 will remain in place unchanged. Laws may be passed to provide for the termination of pregnancy only where there is a real and substantial risk to the life of the mother including the risk of suicide. Any law may be changed by the Oireachtas.

“If challenged, any law may be declared invalid by the courts if it conflicts with the Constitution. The constitutional provisions on freedom to travel and information will remain as they are now.”


If a ‘Yes’ vote is returned on 25 May, what is the immediate effect of the removal of the 8th Amendment? Is there a gap in legislation?

Even if a Yes vote is returned, there is already an Act in place that governs abortion. The Protection of Life During Pregnancy Act is currently in place, since it was introduced in 2013.

This act defines the circumstances within which abortion can be legally performed in Ireland.

It allows for abortion if there is a risk of loss of life (including by suicide) to the pregnant woman.

So this act will still be in place if a Yes vote is returned and until new legislation is put in place. This Act will be repealed when the new legislation is introduced, according to the general scheme of the Bill.

Can the decision made on 25 May be changed by the Oireachtas?

Any changes to the Irish Constitution have to be made through a people’s referendum. The Oireachtas can only change the legislation that is mentioned in the new amendment, should the Eighth Amendment be repealed.

Are we being asked about the 12 weeks?

No, we are not being asked in the referendum specifically about 12 weeks or the legislation – we’re being asked if we approve of the 36th amendment to the Constitution, ie removing Article 40.3.3 and replacing it with the wording above.

However, if the Eighth Amendment is repealed and replaced, the legislation that will be brought in as a result will allow for abortion to be carried out on a pregnancy up to 12 weeks. Here’s what the general scheme says:

PastedImage-79882 Department of Health Department of Health

I thought it was a straight Yes or No to abortion?

As you can see from the above, it’s a bit different to that. You are voting in relation to abortion: on whether changes should be made to the Constitution that could allow the Oireachtas pass legislation broadening the access to abortion here in Ireland.

If you vote No, the situation won’t change: Article 40.3.3 will remain in the Constitution.

The Protection of Life During Pregnancy Act, which allows for abortion if there is a risk to the life of the mother, including a risk of suicide, will remain in place.

If you vote Yes, the Eighth Amendment will be removed, paving the way for legislation that would remove the Protection of Life During Pregnancy Act, and allow for abortion in a wider set of circumstances (see above for these).

If you have another question, please send it to / YouTube

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