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Column: Here's a win for all sides in the abortion debate

The 8th amendment, which protects the right to life of the unborn, is loved and hated in equal measure by both pro-life and pro-choice campaigners, writes Jane Horgan-Jones. It’s time to have a referendum on it.

Jane Horgan-Jones

IRELAND NEEDS A constitutional wake up call. Our present position is unworkable and acting as a barrier to any sort of progress being made on the abortion debate.

In the early 1980s, political pressure grew on Fine Gael to propose a ‘pro-life’ amendment. A view developed among pro-life campaigners that unless the constitution prohibited abortion and specifically acknowledged the right to life of the unborn, the Courts might ‘read in’ a right to abortion from existing constitutional privacy rights. This had already happened in America in Roe versus Wade (on abortion) and here in McGee v. Ireland (on contraception). The amendment was therefore designed to remove the possibility that abortion could be introduced in Ireland by judges, without first being endorsed by the people in a referendum. After a bitterly fought campaign, the 8th amendment was approved and Article 40.3.3 inserted into 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.

In the absence of any supporting legislation, it then fell to the Supreme Court in the X case in 1992 to interpret Article 40.3.3. It came as a surprise to many when the Court held that the wording of the Article itself meant abortion was legal in Ireland.

I, therefore, conclude that the proper test to be applied is that if it is established as a matter of probability that there is a real and substantial risk to the life, as distinct from the health, of the mother, which can only be avoided by the termination of her pregnancy, such termination is permissible, having regard to the true interpretation of Article 40,s.3, sub-s. 3 of the Constitution. (Finlay CJ)

It is safe to say that those who voted in favour of the amendment in 1983 never foresaw that instead of constitutionally prohibiting abortion, they were in fact legalising abortion in Ireland for the first time in our history.

“For as long as the 8th amendment exists, it ties the hands of the Oireachtas”

We need to be absolutely clear about why we are at this current impasse. It is not because of the European Court of Human Rights. It is not because of the pro-choice campaign. It is not even because of the X case. It is because of the 8th amendment and Article 40.3.3.

Article 40.3.3 is the only piece of law in Ireland that legalises abortion. It is loved and hated in equal measures by both pro-life and pro-choice campaigners. But full and sensible debate on all aspects of the abortion issue is being blocked by its presence, and its inherent contradictions create difficulties for those on both sides of the debate. For as long as it exists, it ties the hands of the Oireachtas. Arguably, it did not even achieve the objective of those who campaigned for it: to ensure that decisions on abortion lay with the people alone and not the courts.

From a pro-life perspective, the removal of the 8th amendment would have a number of welcome effects. The Government would no longer be obliged to clarify its meaning and enact laws to give access to the rights it provides. In particular, the X case would cease to be a binding legal precedent, and the obligation to legislate for suicide to satisfy our ECHR obligations would disappear. Without the 8th amendment, the situation would be governed exclusively by the 1861 Offences Against the Person Act. This outlaws the procurement of ‘unlawful’ miscarriage (abortion) – but leaves it open to the legislature to define in what circumstances, if any, such procurement is lawful. The Government could therefore choose to legislate for abortion on physical threat to life grounds only, excluding suicide from consideration – exactly what some Fine Gael TDs want.

On the pro-choice side, removing the 8th amendment also opens up possibilities. The Government could theoretically introduce comprehensive legislation catering for those who find themselves carrying foetuses with fatal abnormalities. Such legislation could be limited by conditions as the legislature found necessary. A full public debate could also take place about whether a serious risk to the health of the woman should be grounds for abortion. Legislation could be passed to enable a woman’s own views on the perceived risk to her life or health to be taken into account. And exceptions for rape and incest, favoured by many in opinion polls over the years, could be on the table for discussion for the first time.

None of the above is possible without amendment or removal of Article 40.3.3.

‘The 8th amendment prevents any middle ground in the abortion debate’

Those opposing the inclusion of suicide in the X case legislation must openly and honestly confront this constitutional nightmare, and say clearly what alternative they propose. We cannot legislate without suicide and still satisfy our obligations to the ECHR if the 8th amendment remains intact in its current form.

The electorate have never been asked if they want to expand the abortion regime here following the decision in X – only if they want to restrict it. We have never been able to have that debate in Ireland. We have not been able to do so because the narrative is dominated by an over-arching, ill-advised and poorly worded Constitutional provision that paralyses the debate from all directions and from all perspectives.

The 8th amendment is the only thing that obliges us to legislate for all aspects of the X case, and the only thing that prevents us from going further. The pro-life lobby view it as the ‘jewel in the crown’ of the Irish movement, but it also paradoxically gives rise to their most feared outcome in the inclusion of mental health as a justification for legal abortion.

Crucially, it also prevents a ‘middle ground’ emerging from public opinion on the topic and influencing the mainstream narrative. This is a middle ground that cannot be neatly characterised as either ‘pro life’ or ‘pro choice’. It is comprised of those who want to protect women’s lives in pregnancy but also wish have an evidence-based discussion about time limits, reasons, and the plight of women carrying non-viable foetuses. Those who are a shade of grey rather than black or white want neither abortion ‘on demand’ nor an outright ban. Their voices are smothered by a constitutional setup that demands we define our position by giving support to one camp or another on one very limited aspect of a complex debate – suicide.

To have these debates, we need a referendum. It would take significant political courage to bring one forward, and the resulting campaign would be difficult. This country still bears the scars of previous abortion referendums. But the issue is not going away, and if those on both sides of the debate are honest about it, they should accept that this is what is logically and inevitably required if we ever want to move on from the present destructive and polarising debate on abortion.

In the interests of full disclosure, I am pro-choice and campaign on issues of choice as a member of the Labour Party. But as a lawyer, I believe that the current constitutional position is not sustainable from either a pro-life or pro-choice position.

Jane Horgan-Jones is a practising barrister and a Labour Party Councillor on Dublin City Council, representing the Clontarf ward.

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