By Caoimhe Doyle and Declan Kelly of the Abortion Rights Campaign
The law and Constitution in Ireland have been attempting to control women and sexuality since the foundation of the Irish State. Magdalene Laundries were open until 1996, condoms were illegal until 1992, homosexuality wasn’t legalised until 1993, and the morning after pill only became available without prescription in 2013. Ireland has made great strides in the last few years with both the introduction of the Gender Recognition Act and the legalisation of LGBT marriage in 2015. However, one amendment to the constitution, introduced in 1983, which removed bodily autonomy from all pregnant people and outlawed abortion in all cases is still in place to this day. The 8th Amendment has cast a long shadow over Ireland’s recent history.
Starting with the X Case in 1992, the A, B, C Cases, the D Case, and most recently Ms. Y and Ms P in 2014, we are swiftly running out of letters of the alphabet to assign to the many lives that this Amendment has damaged. That’s not to mention the women whose names we know who lost their lives due to the 8th Amendment: Sheila Hodgers, Savita Halappanavar, Bimbo Onanuga, or the many many more anonymous women who are forced to travel (10 a day) or import illegal pills to access abortion.
The Offences Against the Person Act (introduced in 1861 while Ireland was still under British rule) dealt with abortion in sections 58 and 59 and outlawed it in all instances. While the Abortion Act legalizing abortion was introduced in the UK in 1967, it was not extended to the Republic of Ireland (as Ireland was no longer under British rule) or Northern Ireland.
Even though abortion was already illegal in Ireland in the early 80’s, worried about the liberalisation of abortion in the US and UK, a pro-life lobby set out to include an abortion ban in the constitution. In late 1983, the 8th Amendment to the Irish Constitution was passed by public referendum with a Yes vote of 67% (turnout 54%). The 8th Amendment added a single sentence, to the Irish 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.”
For such a short amendment it contains a lot of ambiguity and has done a lot of damage. For starters the word “unborn” is undefined. It is unclear at what point a fertilized egg gains human rights under the Irish Constitution. Most medical literature uses more accurate terms, such as “foetus”, or “embryo”. The “right to life” is mentioned twice: that of the “unborn”, and that of the mother. The State is required to respect, defend, and vindicate “that right” (singular), even though there are clearly two distinct rights at play. This essentially creates a balancing act where the woman’s life is considered equal to a fertilised egg and it is up to doctors to decide which “right to life” trumps the other.
Following the X Case in 1992, when a young rape victim was prevented from leaving the country due to a “real and imminent danger to the life of the unborn,” three separate amendments were put to the people.
The 12th Amendment was defeated in, with a No vote of 65%. It proposed to specifically exclude the risk of suicide as a threat to the right to life of the mother. The 13th Amendment (1992) was passed, with a Yes vote of 62%. It added one paragraph to Article 40.3.3:
“This subsection shall not limit freedom to travel between the State and another state.”
The 14th Amendment was passed, with a Yes vote of 60%. It added one paragraph to Article 40.3.3:
“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.”
The conditions were laid down by law in 1995 with the Regulation of Information (Services outside the State for Termination of Pregnancies) Act.
In 2002, the 25th Amendment was narrowly defeated with a No vote of 50.42%. The amendment itself would have further restricted abortion access by extending Article 40.3 to completely remove the threat of suicide.
In 2013, under great pressure following the death of Savita Halappanavar, the government finally introduced legislation for the X Case (more than 20 years late). The Protection of Life During Pregnancy Act made very little meaningful change, making abortion only legal in the case where the pregnant person’s life is at risk (including from suicide). It also criminalised any abortion outside of these narrow confines, with a maximum punishment of 14 years in prison.
In practice, Irish abortions are still taking place: either illegally (outside of the Irish healthcare system) or in the healthcare systems of nearby jurisdictions. The State is allowing “the problem” to be exported, and the export costs are being paid for by those who are free to travel and who can afford the journey.
In 2014 during the UN Human Rights Committee review of Ireland, the chair and former UN Special Rapporteur on torture told the Irish Government “Irish abortion law treats women as a vessel and nothing more.”
The 8th Amendment forces at least 10 women a day to travel for abortion. It forces an unknown number of women to import abortion pills. It forces women with fatal foetal abnormalities to get their baby’s remains sent to them in the post. It forces suicidal women to sit before a panel of Multidisciplinary doctors and hope that they are believed. It forces women who are unable to travel and unable to obtain pills to take desperate measures to end their pregnancy. It denies women agency over their own body and their own health care even during wanted pregnancies. It denies women basic human rights.
We know the damage the 8th Amendment has caused the thousands of women who travel every year, and we know the type of horrendous cases it will continue to create while it is allowed to be part of our constitution. It is said hard cases makes bad laws, but while the 8th Amendment is in place we can have nothing but bad laws in relation to abortion and this results in creating ‘hard cases’: each one is a woman being forced to suffer by the state.
The first step towards free safe and legal abortion in Ireland is the repeal of the 8th Amendment and the introduction of legislation to give clarity to those working in medical and legal fields.
We must trust women, we must repeal the 8th.