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Why does Ireland have the EU’s strictest abortion regime? Applying and Repealing the Eighth Amendment to the Irish Constitution

 

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A mural in Dublin calling for the repeal of the Eighth Amendment to the Constitution of Ireland, which bans abortion.

Eoghan Hughes

With a significant pro-choice victory in Poland as the country’s conservative PiS government performs a U-turn on restricting access to abortion in the case of incest, rape, fatal foetal abnormality and risk to the mother’s life, it is easy to forget that the EU still has one State in which very few of the above constitute a legitimate cause for abortion.

Last year the Republic of Ireland became the first country to legalise same sex marriage through a popular referendum with an overwhelming victory, which seemed to signal a new liberal turn in a country many people across Europe and the world associate with conservative Catholicism. Yet Ireland, despite calls from the EU, the Council of Europe and the UN, has retained one of the most restrictive abortion laws in the world, where fatal foetal abnormalities and rape are not considered legal grounds for the termination of a foetus and where, even in the cases where woman’s life would be endangered by seeing a foetus to term, a woman might be denied the necessary treatment. Enshrined in the Constitution of the Republic of Ireland (Bunreacht na hÉireann) the Eighth Amendment prevents a woman having an abortion because the foetus is considered to have an equal right to life:

“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.”

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A pro-choice banner calling for the repeal of the Eighth Amendment by referencing Ireland’s revolutionary ‘rising’

What is most striking about Ireland’s unusually strict legislation is that their degree does not have the backing of the population. The most recent poll on the matter shows that 74 % of Irish citizens are in favour of repealing the Eighth Amendment and allowing abortion. Broken down, most (55 %) want the Eighth repealed and abortion to be allowed in cases of rape and fatal foetal abnormality, and other situations which endanger the life of the mother, while a further group (19 %) want to see abortion allowed at a woman’s request. Just 18 % of the population were against repealing the amendment, showing a drastic sea change since the Eighth Amendment’s introduction.

The Eighth Amendment to the Constitution of Ireland became law in 1983, after a fierce referendum campaign brought the abortion issue to the centre of public attention. Why did this issue arise in 1980s Ireland, a country that had already banned abortion in its legal code?

The answer lies across the pond in the US, where the Supreme Court ruled that in the Roe v. Wade case, abortion is legal on the grounds of the protection of privacy. This surprising ruling spooked pro-life activists in Ireland who formed the Pro-Life Amendment Campaign (PLAC) to lobby the leaders of Ireland’s three biggest parties at the time, Fianna Fail, Fine Gael and Labour, to introduce an amendment to the constitution that would block any attempt by the Supreme Court of Ireland to interpret the constitution in such a way as to allow abortion to become legal in Ireland.

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Charles Haughey and Garret Fitzgerald shake hands before a televised debate. Both men had a hand in the birth of the Eighth Amendment.

With relative ease the PLAC convinced the leaders of the three parties, Charles Haughey, Garret FitzGerald, and Frank Cluskey respectively, to introduce such an amendment. By the collapse of the Fianna Fail minority government in 1982 a proposed wording for this amendment was ready.

This wording was the same as the final amendment you read above. Once Fianna Fail’s government had given way to a Fitzgerald-lead Fine Gael, the new executive proposed a softer wording which instead required that the constitution not be read in such a way as to legalise abortion. This was rejected by Fine Gael backbenchers and the Fianna Fail wording won the Dail (Parliament) vote with 85 votes to 11, and the Seanad (Senate) by 14 votes to 6 in. Having passed both houses, the amendment was put to the people in the form of a referendum.

The campaign itself was bitterly contested, but the odds were always in PLAC’s favour. Supported outright by the Roman Catholic hierarchy in Ireland, Fianna Fail, the country’s largest single party, some Fine Gael members and various other groups, the PLAC faced a small but determined opposition led by Labour senator and future President of Ireland, Mary Robinson, with a loose coalition of feminists, trade union leaders, Sinn Fein, the Workers Party and the main protestant churches in Ireland.

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Mary Robinson, former President of Ireland, fought the introduction of the Eighth Amendment.

However, with the backing of Fianna Fail and the Catholic Church, arguably the two most culturally dominant organisations in Ireland and certainly some of the best organised, the vote was a forgone conclusion. With a total of 1,265,994 votes cast for either side, the Amendment passed with 66.90 % of the vote. On the Amendment’s side were 841 233 voters, while those opposed counted for just 416 136.

Things, if we are to believe the most recent poll (and recently polls have not exactly been incredibly reliable), have changed. A vote tomorrow would see a much more momentous victory for repeal than the Eighth could have ever hoped for.

This change might have been spurred by the death in 2012 of Savita Halappanavar, a 31-year old dentist living in Galway. Savita was refused an abortion at University Hospital Galway despite the fact that it was known that her health was at risk from a continuation of her pregnancy. In such cases, when the life of the woman is at risk, abortion is theoretically legal, but the complicated legal code which governs abortion and the predominant position of the Eighth Amendment have caused sufficient confusion as to make this unclear.  As a result, 17 weeks into gestation, Savita suffered a septic miscarriage which lead to multiple organ failure and death.

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A candlelight ceremony for Savita Halappanavar, referencing the abortion debate.

The public outcry following Savita’s death was palpable and demonstrations were held around the country by pro-choice campaigners and sympathizers. The political reaction saw the Fine Gael-led government pass the Protection of Life During Pregnancy Act 2013, which did little more than make clear existing legislation regarding the need to protect the life of the woman in the case of a dangerous pregnancy. Since then, a call for a repeal of the Eighth has been mounting across the country.

So what’s taking so long? The current coalition government, lead once more by Fine Gael, has convened a citizens’ assembly to feel out if the population is eager to have a referendum on abortion. This process could take some time and some pro-choice campaigners have suggested it is an effort to push the issue down the line, as the government tackles a number of outstanding crises.

Regardless, a referendum is on the cards. No government is likely to attempt to get around the issue in another way. In the case of gay marriage, the liberal victory was all the sweeter for the way it was gained, through public referendum – changing the legislation on abortion that way may put the issue to bed for another considerable time. However, when they fail, referenda  can always be spun to the government’s advantage; they can be made to legitimise the actions of a government, and equally to lay the blame for a bad decision at the feet of a misinformed public.

Click here for more by Eoghan Hughes.

The Euroculturer Recommends:

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“Five terrifying takeaways from the British Conservative Party Conference: Notes from a Lonely Island #3” by Emily Burt

Little Europe in Bengal: Patches of multi-national interests on the bank of Hooghly” by Arnab Dutta

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