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Debate Room: Two lawyers on the 8th Amendment and if we should retain or repeal it

“Referendums can be incredibly blunt tools that force us into one of these two camps.”

Barrister Benedict Ó Floinn & Prof Alan Green

On both sides of the Eighth debate, people hold genuine beliefs that are irreconcilable. Should we repeal it and deal with it through legislation or is it important to preserve the rights of the unborn in our Constitution?

Benedict Ó Floinn, a practising barrister in the Four Courts, and Dr Alan Greene, Assistant Professor at Durham Law School, debate the issue.

RETAIN. FOR HUNDREDS of years, there have been efforts by parliaments to regulate property rights. Property has been fought over in countless cases before the courts.

Public debates are frequent, acrimonious, sometimes even violent – as capitalists and socialists collide. The fact that this is so does not prevent us from protecting the right to private property in our Constitution.

Imagine if the government were to say that property rights were ‘too complicated’. Imagine if foreign academics were to clamour that there was ‘too much disagreement’ about property rights for them to be included in the Constitution. It would not take a lawyer to see through such arguments.

We would scoff at the idea that only simple issues, on which we are all agreed, should make it into the Constitution.

Plan wouldn’t make it off drawing board

Let’s indulge our imaginations a little more. Suppose the government that urged the repeal of all property rights, at the same time published draft legislation. Suppose this legislation said that, having removed the constitutional protection, the legislation would annihilate the rights of people under 30.

Such a plan would not make it off the drawing board. Everyone, not just those under 30, would reject it as completely unjust.

Change ‘property rights’ for ‘rights of mothers and their unborn to life’ and the foregoing is precisely what were are being encouraged by the government to do on May 25. We are being asked to sweep away the rights of human beings during one phase of their lives, by repealing the Eighth Amendment.

Abortion on very vague grounds

The Referendum Commission and the Supreme Court have told us that this is the legal effect of repeal. In place of the existing protection, we will give the government power to pass laws providing for abortion.

To be fair to the government, they have told us what they will do with this power, if we give it to them: abortion for no reason up until 12 weeks, abortion on very vague grounds up to viability or six months and in some circumstances abortion up to birth.

The legislation is extreme and not, as some have suggested, restricted to ‘hard’ cases. A moment spent visualising the horror that is the abortion of an unborn boy or girl in the womb at 21 or 22 weeks of age is enough to tell us that this is not something that we want for our country.

Government gave into demands of small minority

It was legally possible for the Government to have crafted a proposal which was limited to the ‘hard’ cases that pluck at the heartstrings of us all. They chose not to. Instead, they gave in to the demands of a small minority who believe that they know what is best for us and who advocate for abortion on demand.

Hopefully, a ‘No’ vote will be a beginning and not an end in itself. The beginning of real supports for young, vulnerable and frightened mothers. The beginning of adequate perinatal hospice care, where it is needed. The beginning of a time when we are proud of the standards of care given to pregnant women and their babies, precisely because we care for both pregnant women and their babies.

The alternative really is too horrible to imagine.

Benedict Ó Floinn is a practising barrister in the Four Courts, Dublin. 

REPEAL. IF THE current referendum campaign has taught us anything, it is that people profoundly disagree over abortion. On both sides of the debate, individuals hold genuine beliefs that are irreconcilable. Then there is the ‘middle ground’ where most of us lie, apparently.

Referendums can be incredibly blunt tools that force us into one of these two camps; however, the referendum to repeal the Eighth Amendment, should not be viewed like this.

Voting ‘Yes’ does not necessarily mean you are pro-abortion in all circumstances. Rather, it can be understood as acknowledging that when it comes to abortion, we should ‘agree to disagree’.

A constitutional amendment

Key to this understanding is that we are dealing with a constitutional amendment. We therefore need to understand what a constitution is. Constitutions are a collection of rules and principles that express the shared values of a people. Constitutions also create institutions to resolve disagreement about these values, and checks and balances to prevent abuse of these powers.

In democracies like Ireland, the legislature—the Oireachtas— with its democratic mandate from the people is designed to resolve disagreement. The people’s elected representatives debate the issues and vote upon them after careful deliberation. In turn, elections ensure that the people’s representatives are held accountable for their decisions.

Abortion regulation therefore does not belong in any constitution as it is not a shared value that most people would agree upon. On the contrary, if there is one thing that everybody can agree on regarding abortion, it is that opinions vary widely. The Eighth Amendment lies at the extreme end of this spectrum of disagreement, with abortions only permissible in the very narrow circumstances of when a mother’s life is at risk.

Deal with abortion through legislation

Abortion should instead be dealt with through legislation; it should be the result of agreement and disagreement. Indeed, legislation is said to be the very product of disagreement.

The Eighth Amendment, however, removes the possibility for us to disagree and our disparate voices to be heard. It removes the Oireachtas’ ability to legislate for abortions in the case of rape, where a woman’s health is at risk, or where there is a fatal foetal abnormality. Many may agree with abortion on these grounds but disagree with abortion in other circumstances.

A ‘Yes’ vote, however, does not silence such voices in the same way that a ‘No’ vote silences all pro-choice views. Instead, a ‘Yes’ vote allows such views to be voiced through the legislative process. In turn, TDs can be held accountable at the ballot box for their choices on this issue.

When viewed like this, repeal of the Eighth Amendment becomes the middle ground. The old adage of ‘if you don’t know, vote no’, should not apply as to be undecided at this stage of the campaign is to acknowledge that there is value to both sides of the debate. This internal debate is one best reflected through the legislative process rather than a blunt constitutional provision.

To say that ‘we can’t trust politicians’ therefore is to say that we cannot trust ourselves.

Dr Alan Greene is an Assistant Professor at Durham Law School specialising in Constitutional Law and Human Rights. Originally from Ireland, he tweets at @DrAlanGreene.

Do you think we should repeal the Eighth and deal with abortion through legislation? Or do you think it’s important we retain the rights of the unborn in our Constitution? Let us know in the comment section below.

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Barrister Benedict Ó Floinn & Prof Alan Green

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