Eighth Amendment of the Constitution of Ireland

Eighth Amendment
Eighth Amendment of the Constitution of Ireland referendum[1]
Date 7 September 1983
Results
Votes %
Yes 841,233 66.90%
No 416,136 33.10%
Valid votes 1,257,369 99.32%
Invalid or blank votes 8,625 0.68%
Total votes 1,265,994 100.00%
Registered voters/turnout 2,358,651 53.67%

The Eighth Amendment of the Constitution of Ireland effectively introduced a constitutional ban on abortion by giving explicit recognition to the right to life of an unborn child. It was effected by the Eighth Amendment of the Constitution Act, 1983, which was approved by referendum on 7 September 1983 and signed into law on the 7 October of the same year.

The amendment was adopted during the Fine Gael–Labour Party coalition government led by Garret FitzGerald but was drafted and first suggested by the previous Fianna Fáil government of Charles Haughey. The amendment was supported by Fianna Fáil and some of Fine Gael, and was generally opposed by the political left. Most of those opposed to the amendment, however, insisted that they were not in favour of legalising abortion. The Roman Catholic hierarchy supported the amendment, but it was opposed by the other mainstream churches. After an acrimonious referendum campaign, the amendment was passed by 67% voting in favour to 33% voting against.

Changes to the text

The Amendment inserted a new sub-section after section 3 of Article 40. The resulting Article 40.3.3° read:

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.

Background

Under sections 58 and 59 of the Offences against the Person Act 1861, abortion was already illegal in Ireland. However, anti-abortion campaigners feared the possibility of a judicial ruling in favour of allowing abortion. In McGee v. Attorney General (1973), the Supreme Court of Ireland had ruled against provisions of the Criminal Law Amendment Act 1935 prohibiting the sale and importation of contraception on the grounds that the reference in Article 41 to the "imprescriptable rights, antecedent and superior to all positive law" of the family conferred upon spouses a broad right to privacy in marital affairs. In the same year, the Supreme Court of the United States ruled on similar grounds in Roe v. Wade to find a right to an abortion grounded on privacy.

The Pro-Life Amendment Campaign (PLAC) was founded in 1981 to campaign against a ruling in in Ireland similar to Roe.[2] Prior to the 1981 general election, PLAC lobbied the major Irish political parties – Fianna Fáil, Fine Gael and the Labour Party – to urge the introduction of a Bill to allow the amendment to the constitution to prevent the Irish Supreme Court so interpreting the constitution as giving a right to abortion. The leaders of the three parties – respectively Charles Haughey, Garret FitzGerald and Frank Cluskey – agreed although there was little consultation with any of their parties' ordinary members.[3] All three parties were in government over the following eighteen months but it was only in late 1982, just before the collapse of a Fianna Fáil minority government, that a proposed wording for the amendment was produced.

Oireachtas debate

The bill introduced by the Fianna Fáil minority government proposed to introduce the following clause into Article 40.3 of the Constitution:

3° 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.

Fine Gael initially supported the wording, but when in government, Taoiseach Garret FitzGerald was advised by his Attorney General, Peter Sutherland, that the wording as proposed was dangerously flawed. Speaking against the original wording during the Dáil debate Alan Shatter argued:

The irony is that I have no doubt, not merely from the interpretation the Attorney General has given but from the other interpretations that can be validly taken from the amendment, that if it in its present form becomes part of our Constitution it will essentially secure a constitutional judgment in the not too distant future requiring the House to enact legislation to permit women to have abortions.
— Dáil Eireann Debate Vol. 340 No. 3 Col. 533.[4]

To remedy the perceived weaknesses in the original wording of the amendment bill, the government proposed an amendment to the bill during the committee stage with the following alternative wording:

3° Nothing in this Constitution shall be invoked to invalidate, or to deprive of force or effect, any provision of a law on the ground that it prohibits abortion.

This alternative wording was criticised by the opposition for not being "pro-life". Speaking against the alternative wording Michael Woods TD said that:

The amendment proposed by Fine Gael would not protect the constitutional right to life of the mother against attack by any future legislation which sought to prohibit abortion in all circumstances even when the life of the mother was at risk. This is a defect which could be important in the future. Such legislation could not be declared unconstitutional on the grounds that it ignored a mother's right to life because the Fine Gael wording provides that nothing in the Constitution may be invoked to invalidate any law which prohibits abortion.
— Dáil Éireann Debate Vol. 341 No. 10 Col. 2021[4]

A number of backbench Fine Gael TDs supported the Fianna Fáil wording, and voted against the government amendment, which was defeated by 87 to 65. The majority of Fine Gael TDs then abstained in subsequent votes. The original wording proposed by Fianna Fáil was then approved by 85 votes to 11 votes in the Dáil and by 14 votes to 6 in the Seanad and put to referendum.

Referendum campaign

The referendum was supported by PLAC, Fianna Fáil, some members of Fine Gael, the Roman Catholic hierarchy and opposed by various groups under the umbrella name of the Anti-Amendment Campaign (AAC), including Labour senator (and future President of Ireland) Mary Robinson,[5] feminist campaigners, and trade unions.[5][6][7] Few in Fine Gael or Labour campaigned against the referendum, and before the vote, Garret FitzGerald declared that would vote against it. Sinn Féin and the Workers' Party strongly opposed the amendment and the Irish Council of Churches (representing the main Protestant churches) campaigned against it.[8]

Anti-Amendment campaigners warned the vague nature of the amendment,[6] the sectarian nature of it, the possible risk to the health treatment to pregnant women,[9] and to the possible legal consequences for contraception, which the Pro-Life Amendment Campaign denied.[10]

The Amendment passed on 7 September 1983 endorsed by 67% of those who voted.

Result

Eighth Amendment of the Constitution of Ireland referendum[11]
Choice Votes %
Referendum passed Yes 841,233 66.90
No 416,136 33.10
Valid votes 1,257,369 99.32
Invalid or blank votes 8,625 0.68
Total votes 1,265,994 100.00
Registered voters and turnout 2,358,651 53.67

Judicial interpretation

In a number of cases, the Supreme Court had held that this provision of the Constitution prohibited information within the state on the availability of abortion services outside of the state. In AG (SPUC) v Open Door Counselling Ltd. (1988), the courts injunction restraining two counseling agencies from assisting women to travel abroad to obtain abortions or informing them of the methods of communications with such clinics, and in SPUC v Grogan (1989), the courts granted an injunction restraining three students' unions from distributing information in relation to abortion available outside the state. These rulings were overturned by the Thirteenth Amendment and Fourteenth Amendment in 1992, which explicitly gave people the right to travel abroad for an abortion, and to receive information in Ireland about abortion available abroad.

In Attorney General v. X (the X Case) in early 1992, the High Court granted an injunction to the Attorney General restraining a fourteen-year-old girl who had been raped from obtaining an abortion in England. On appeal, Supreme Court found that as the girl had shown a risk of suicide, to safeguard "the equal right to life of the mother" in Article 40.3.3°, abortion was permissible in this instance.

The Pro Life Campaign, a successor to PLAC, accused the Supreme Court of misinterpreting both the law and the will of the people. The Government and former Attorney-General Peter Sutherland dismissed such claims, arguing that, as they had claimed in 1983, the 'Pro-Life Amendment' was so poorly worded and ambiguous that it could facilitate either pro-choice or anti-abortion interpretations in different circumstances. The Amendment was not reinterpreted by the Supreme Court on the grounds originally voiced by Peter Sutherland that it would lead to abortion prior to viability or kill women by refusing standard treatments for ectopic pregnancies, cancerous wombs, etc. There was no medical evidence called during the X case hearings.

In PP v. HSE (2014), the High Court held that the constitution did not require a woman who was medically brain dead to be kept on life support to keep the foetus within her alive, because the chance of the foetus being born alive were "virtually non-existant". It is unclear how the case would have been decided if the pregnancy was further along.[12]

In an application for leave seeking judicial review of an order for deportation of a Nigerian man, Humphreys J held for the High Court in August 2016 that leave should be granted, in part on the family rights of the unborn child at the time of the deportation.[13]

Subsequent referendums

Three referendums were held in November 1992. The Twelfth Amendment of the Constitution Bill, 1992 sought to exclude "a risk of self-destruction" as grounds for abortion, to overturn the central element of the decision in the X Case. This was rejected by 65% to 35%. The Thirteenth Amendment, permitting travel to obtain abortion in another jurisdiction, was approved by 62% to 38%. The Fourteenth Amendment, permitting information about services in other countries, was approved by 60% to 40%.

After these amendments, Article 40.3.3° now 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.

This subsection shall not limit freedom to travel between the State and another state.

This subsection shall not limit freedom to obtain or make available, in the State, subject to such conditions as may be laid down by law, information relating to services lawfully available in another state.

A further referendum which sought to overturn the X Case, the Twenty-fifth Amendment of the Constitution of Ireland Bill, 2002 was narrowly defeated by 50.4% to 49.6%.

Legislation

The Protection of Life During Pregnancy Act 2013 replaced the abortion offences in the Offences against the Person Act 1861 and made statutory provision for the limited right to abortion established by the X Case. It replaced the offence of "unlawfully procuring a miscarriage" punishable to life imprisonment with the offence of "destruction of unborn human life", punishable by up to 14 years' imprisonment.[14][15]

Further proposed changes

In February 2015, a private member's bill proposed by Clare Daly to allow abortion in cases of "fatal foetal abnormality" was rejected in the Dáil; the government argued that the bill was unconstitutional, which Daly disputed.[16][17][18]

Repeal the Eighth

There was a campaign to Repeal the Eight Amendment after the X Case in 1992, and the three abortion referendums which followed it (the 12th, 13th and 14th).[19][20][21][22] However the campaign lay dorment for more than 20 years until the death of Savita Halappanavar in 2012.[23][24][25] The Abortion Rights Campaign was founded in 2012. The #RepealThe8th hashtag was started on Twitter in 2012.[26]

This current campaign is led by both a coalition of pro-choice groups (Coalition to Repeal the Eighth, Abortion Rights Campaign, etc) and has support from a number of legal academics and members of the medical profession.[27][28][29] In the run up to the 2016 general election, a number of parties committed to a referendum to repeal the Eighth Amendment (Labour,[30] Green Party,[31] Sinn Féin[32] and Workers' Party [33]) and a group of feminist law academics published model legislation to show what a post-Eighth Amendment abortion law could look like.[34] In June 2016, Minister for Health Simon Harris stated his support for a referendum on repealing the 8th.[35]

On 27 July 2016, the government appointed Supreme Court judge Mary Laffoy as chair of a Citizens' Assembly to consider a number of topics, including the Eighth Amendment.[36]

The 5th Annual March for Choice, organised by the Abortion Rights Campaign, took place in Dublin on Saturday September 24 marking the Global Day of Action for Access to Safe and Legal Abortion. The theme of the rally was ‘Rise and Repeal’. The attendance was estimated to be around 20,000.[37]

See also

References

Oireachtas debates

House 1st stage 2nd stage Committee stage Report stage Final stage
Dáil 2 Nov 1982; 2 Feb 1983 Feb 9, 17 (1) 17 (2), 23; Mar 2, 8, 24 Apr 27 (1), 27 (2) Apr 27
Seanad May 4, 5, 10, 11 May 18, 19 (1), 19 (2) May 25 (1) 25 (2) 25 (3), 26 May 26

Notes

  1. ↑ "Referendum Results" (PDF). Department of the Environment, Community and Local Government. Retrieved 12 March 2012.
  2. ↑ Government of Ireland. All-Party Oireachtas Committee on the Constitution, ed. Green Paper on Abortion (PDF). Fifth Progress Report: Abortion. Dublin: Stationery Office. p. A589. ISBN 0-7076-6161-7. Archived from the original (pdf) on 21 July 2011.
  3. ↑ Barry Gilheany (1998). Vicky Randall, ed. The state and the discursive construction of abortion. Gender, Politics and the State (Reprint ed.). Routledge. p. 72. ISBN 9780415164023.
  4. 1 2 Dáil Eireann Debate Vol. 340 No. 3 Col. 533.
  5. 1 2 Walsh, Caroline (28 January 1983). "Group pledges fight to defeat amendment". The Irish Times. p. 4. Retrieved 5 August 2016.
  6. 1 2 "Abortion amendment 'dodges issue'". The Irish Times. 10 December 1982. p. 15. Retrieved 5 August 2016.
  7. ↑ "ICTU praised on amendment stand". The Irish Times. 7 January 1983. p. 6. Retrieved 5 August 2016. The Anti-Amendment Campaign yesterday welcomed the recent statement opposing the constitutional amendment on abortion made by the Irish Congress of Trade Unions
  8. ↑ "1982: Irish Council of Churches opposed anti-abortion amendment.". The Journal. Retrieved 5 August 2016.
  9. ↑ "Abortion poll date queried". The Irish Times. 22 January 1983. p. 17. Retrieved 5 August 2016. Dr Maura Woods said that treatment for women with cancer who became pregnant could be stopped if the amendment was passed
  10. ↑ Doherty, Judi (2 February 1983). "Referendum campaigners on both sides step up efforts". The Irish Times. p. 5. Retrieved 5 August 2016.
  11. ↑ "Referendum Results" (PDF). Department of the Environment, Community and Local Government. Retrieved 12 March 2012.
  12. ↑ Carolan, Mary (26 December 2014). "Court clears way for clinically dead pregnant woman to be taken off life support". The Irish Times. Retrieved 8 August 2016.
  13. ↑ "'Unborn child' has significant legal rights, judge rules". The Irish Times. 2 August 2016. Retrieved 5 August 2016.
  14. ↑ "Protection of Life During Pregnancy Act 2013, §22". Irish Statute Book. Attorney-General of Ireland. 30 July 2013. Retrieved 11 February 2015.
  15. ↑ "Head 18: Repeal and Consequential Amendments and Head 19: Offence" (PDF). General Scheme of the Protection of Life During Pregnancy Bill 2013 (PDF). Irish Government News Service. 30 April 2013. pp. 30–32. Retrieved 11 February 2015.
  16. ↑ "Protection of Life in Pregnancy (Amendment) (Fatal Foetal Abnormalities) Bill 2013: Second Stage (Resumed) [Private Members]". Dáil Éireann debates. 10 February 2015. Retrieved 11 February 2015.
  17. ↑ O'Connell, Hugh (10 February 2015). "'A shameful abandonment': Just one Labour TD defies party as Clare Daly's abortion bill voted down". TheJournal.ie. Retrieved 11 February 2015.
  18. ↑ "Protection of Life in Pregnancy (Amendment) (Fatal Foetal Abnormalities) Bill 2013 [PMB] (Number 115 of 2013)". Bills 1997–2015. Oireachtas. Retrieved 11 February 2015.
  19. ↑ Keena, Colm (9 April 1992). "Both sides in abortion row might vote "no"". The Irish Press. p. 4. The Repeal the Eight Amendment Campaign which was founded yesterday ... It also wants a referendum on the abortion issue to include the option of voting or the repeal of Article 40.3.3
  20. ↑ "REAC protest". Irish Examiner. 3 October 1992. p. 3. Members of the Repeal the Eight Amendment Campaign (REAC) from Dublin, Cork, Waterford and other towns will be on the streets with a variety of music, street theatre and colourful banners in protest
  21. ↑ Kahn, Frank (8 October 1992). "Repeal group says the wording must be changed". Irish Independent. p. 8.
  22. ↑ Mac Dubhgaill, Uinsionn (28 February 1992). "Campaign urges repeal of amendment". The Irish Times. p. 5. The Repeal the Eight Amendment Campaign is to hold a protest outside the GPO in DUblin at 6:30pm today, a spokeswoman for the campaign said. The campaign, which will be formally launched on Sunday week - International Women's Day
  23. ↑ Janet O'Sullivan [Sharrow_ie] (11 September 2016). "@lalonde @chebegeek yes during and after the x case, then went dormant for nearly 20 years." (Tweet) – via Twitter.
  24. ↑ Holland, Kitty (31 July 2013). "Enactment of Abortion Bill 'very sad day' for Ireland". The Irish Times. p. 7. Pro-choice groups will announce campaign in autumn to have amendment repealed...Pro-choice groups would announce details of a campaign to repeal the 1983 Eighth Amendment to the Constitution at the end of September, she said. Labour Party TD Aodhán Ó Riordáin said he and party colleague, Senator Ivana Bacik, would propose at the constitutional convention in the autumn that it recommend a referendum be held on repealing the Eighth Amendment
  25. ↑ Holland, Kitty (27 July 2013). "Abortion law: what comes next". The Irish Times. p. 39. plans are underway by numerous pro-choice groups for a campaign to get it repealed.
  26. ↑ MsFrugalone (25 November 2012). "@MauriceDockrell I hope that happens too #RepealThe8th @savitaslaws @Berlinnaeus #marian" (Tweet) – via Twitter.
  27. ↑ Hunter, Niall (13 November 2016). "Master calls for new termination law". IrishHealth.com.
  28. ↑ McMahon, Aine (20 November 2015). "Irish doctors call for decriminalisation of abortion". The Irish Times. Retrieved 29 September 2016. The letter has been signed by some of the leading figures in Irish healthcare, which include Dr Peter Boylan, Consultant Obstetrician and Gynaecologist at the National Maternity Hospital on Holles Street and Dr Veronica O’Keane, Professor in psychiatry at Trinity College Dublin and consultant psychiatrist. The letter warns that criminalising abortion puts women’s and girls’ health and lives at risk.
  29. ↑ McDonald, Henry (20 November 2015). "Doctors from 44 countries call on Ireland to relax abortion laws". The Guardian. Retrieved 29 September 2016. Some of Ireland’s most prominent physicians among hundreds of medics joining Amnesty campaign to decriminalise abortion
  30. ↑ "Reproductive Healthcare". Labour Party. Retrieved 5 August 2016. Our plan for the next five years: Hold a referendum to remove Article 40.3.3 (the 8th Amendment) from the Constitution
  31. ↑ "Reproductive Rights". Green Party. Retrieved 5 August 2016. The Green Party supports the holding of a referendum to allow the people of Ireland determine whether or not the 8th Amendment should be repealed.
  32. ↑ "Sinn Féin support the Amnesty Ireland Repeal the 8th Campaign- Lynn Boylan MEP". Sinn Féin. Retrieved 5 August 2016. Sinn Féin MEP Lynn Boylan joined Amnesty Ireland campaigners and her Sinn Féin colleagues outside Leinster House today calling for a referendum to repeal the 8th amendment.
  33. ↑ web|url=http://workersparty.ie/wpmanifesto/|publisher=Workers' Party
  34. ↑ Enright, Mairead; Conway, Vicky; Londras, Fiona de; Donnelly, Mary; Fletcher, Ruth; McDonnell, Natalie; McGuinness, Sheelagh; Murray, Claire; Ring, Sinead (2015-06-28). "General Scheme of Access to Abortion Bill 2015". feminists@law. 5 (1). ISSN 2046-9551.
  35. ↑ "Simon Harris wants a referendum on repealing the 8th". Newstalk. 30 June 2016.
  36. ↑ "Government appoints Chairperson to Citizens' Assembly". MerrionStreet.ie. 27 July 2016. Retrieved 5 August 2016.
  37. ↑ "Thousands taking part in pro-choice rally in Dublin". The Irish Times. Retrieved 2016-11-16.

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