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The pro-life case for a referendum on the 8th Amendment

We cannot have another 20 years of simply refusing to deal with this issue. Holding a two-part referendum could be the answer.

Aaron McKenna

FLUSHED WITH THE sweet taste of victory in the wake of the marriage referendum result, it didn’t take long for calls of “and now, on to repealing the 8th” to ring across the land. And why not? The forces of social liberalism had won a great victory by coming together and organising a professional campaign; and many of those at the top of the campaign for a Yes to MarRef would support the repeal of the amendment in our constitution that restricts abortion to all but the narrowest of cases.

Abortion had largely been ignored as a live issue during the Celtic Tiger years. It got catapulted back into the limelight by tragedy, and the glaring lack of any action at all on the topic since the days of the X Case became a casus belli for a whole new generation of Irish people who think it unacceptable that abortion is so heavily restricted in Ireland.

This issue will not just go away

The topic of abortion is never going to go away, for either side. It’s too core of an issue to ever be let go. It is such a hot topic that the preferred political strategy has been to contain it, like a melted down nuclear reactor we keep pouring water onto to prevent it going critical again; all the while ignoring the damage to the environment all around it from the toxic runoff.

To pro-lifers, abortion is the ending of human life. To pro-choicers, our restrictions are nothing less than a violation of their bodies. Caught in the middle are women in the most tragic of circumstances, shipped off to wander the streets of England until their appointment to end a non-viable pregnancy. Women in this country have likely lost their lives because of the ambiguity around even what is or is not allowed within the narrowest confines of the 8th Amendment.

We cannot have another 20 years of simply refusing to deal with this issue. The strategy of pretending it doesn’t exist, and then trying to hold up any reform or popular vote for fear it might not go your way is is both weak and undemocratic. I say this as someone who is pro-life, or anti-choice if you prefer; for I know that the very etymology of this debate is a point of bitter contention. I don’t believe we should have a liberal abortion regime in Ireland. But I also don’t believe in denying people their democratic say for fear that they might disagree with me. That just stores up resentment and more pain on an already painful issue.

Abortion is not a binary question like same-sex marriage

We need to settle this debate with ourselves, and as with the MarRef we need to vote on it and see what the majority of Irish people feel in the wake of what I don’t doubt will be a bitter, but necessary, national argument.

Abortion is not a binary question like same sex-marriage was, of course. There are probably three or four broad camps in the abortion debate, not a straightforward two positions.

In between the binary yes or no sides, there exists a broad middle ground of people who are not in favour of a liberal abortion regime, but who think as I do that it is unacceptable to restrict abortion in, for example, cases of fatal foetal abnormalities. Even among these people you’ll find yourself then debating where the margins lie. Well, what about women who are the victims of rape? On the one hand, should the baby lose a chance at life? On the other hand, would you tell a woman she must carry her rapist’s child into the world?

The problem for a straight yes-or-no vote

Those calling for a straight up repeal of the 8th point out that it would provide legislators the space to make laws that we feel are appropriate to deal with a range of circumstances without constitutional restriction.

Those opposing the repeal point out that many who would legislate for less restrictive abortion regimes today are angling for it as a first step on the road to full liberalisation. We have a history of politicians requiring a mandate directly from the people on many core issues, and I think that this is something that enhances our democracy and is quite popular with Irish citizens not all that fond of ceding full control to politicians.

I think if given a straight up referendum to repeal the 8th, there are many who believe we should have a slightly more liberal abortion regime who would vote to keep the near total restriction on the basis that they could not trust politicians to only go so far as they might be promised during a referendum campaign. It could be successfully argued to them I think that it would be an inevitability that we would end up with an abortion regime like that in England if we repealed the 8th in isolation.

A possible solution: holding a two-part referendum

I think that those looking for progress would be advised to call instead for a two part referendum that would give the country a choice between keeping the 8th, repealing it, or doing something in the middle.

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Firstly, we would have a motion to repeal the 8th. Simple enough. If you want to keep our restrictions, vote no to repealing it. If you want any sort of more liberal regime, vote yes to repealing it. I’d vote yes to a repeal in this circumstance, because then we would have our second motion: in the event the 8th is repealed, insert a new amendment into the constitution. This amendment would outline, in broad terms, that abortion is restricted to the hard cases, such as in the event of FFA. It would provide legislators with the latitude needed to introduce limited abortion.

If you want a totally liberal abortion regime, you would vote no to the introduction of this amendment. If you want a slightly liberalised regime, you vote yes. If you voted no to repealing the 8th, this amendment would be your insurance policy in the event a majority disagree with you.

At the end of the day, we either keep the 8th; replace it; or get rid of all constitutional barriers to abortion in the constitution.

There is a majority support for compassion

I suspect that we’d go the middle course, from looking at polls on the topic that show a majority support among the population for the pro-life position, but also a majority support for common-sense compassion in liberalising certain aspects of the law.

I think this would be a far better way to frame and have the debate than a binary yes or no. We need to have this argument. I see it as an inevitability. I think, however, that a straight up referendum on the 8th will fail.

For all but the most hardline, this third way is perhaps the best option.

Aaron McKenna is a businessman on columnist for TheJournal.ie. You can follow him on Twitter here.

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