The 8th Amendment to the Irish Constitution, approved by 67% of voters in a referendum held in 1983, provides as follows: “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.”
The amendment was sought by anti-abortion campaigners who, cognizant of the 1973 United States Supreme Court decision in Roe v. Wade, feared that abortion might be similarly be introduced through the “back door” in Ireland.
The 8th Amendment was intended to resolve the issue of abortion once and for all. It did anything but. Since 1983, there have been a number of extremely difficult cases and subsequent court judgments, further referendums and, most recently, the tragic death of Savita Halappanavar in a Galway hospital in 2012. Ms. Halappanavar was miscarrying and sought an abortion, yet was denied one and ultimately died of septicemia.
Although it is debatable as to whether Ms. Halappanavar’s death can be attributed directly to Ireland’s abortion laws, her passing prompted vocal calls for action. These calls, together with an ensuing national dialogue and debate among politicians and the wider citizenry, culminated in the Protection of Life during Pregnancy Act 2013, which clarified the limited circumstances in which abortions may be performed in Ireland.
The enactment of this legislation, however, has done nothing to quiet critics who want to repeal the 8th Amendment and install a more liberal abortion regime. These advocates have made their case stridently both in social and traditional media. Some courageous women have come forward to tell heartrending stories of their initial joy at discovering a pregnancy, only to be informed later by their doctors that their unborn child had little to no chance of survival outside the womb, and then having to travel to England to have an abortion because they could not access one in Ireland.
Encouraged greatly by the result of the referendum held earlier this year in which 62% of the electorate endorsed marriage equality – notwithstanding the reality that allowing for more abortions to take place and permitting same-sex couples to enter civil marriages can be readily distinguished as policy initiatives – supporters of the repeal of the 8th Amendment have ramped up their activity as an early 2016 general election nears.
At least partly in response to clamoring from members of his cabinet who favor repeal of the 8th Amendment, Taoiseach (Irish Prime Minister) Enda Kenny has indicated that, if his Fine Gael party is re-elected, a citizens’ convention will be held within six months on the 8th Amendment. The convention would presumably discuss whether it should be repealed and, if so, what legislative framework might replace the 8th Amendment.
And when the matter subsequently comes before the Oireachtas (Irish Parliament), the Taoiseach has stated that, unlike when they voted on the Protection of Life during Pregnancy Act 2013, Fine Gael parliamentarians may exercise their own freedom of conscience, and not be subject to the party whip, in deciding how to vote.
Just after the Taoiseach made this announcement – and bolstering the arguments of proponents of repealing the 8th Amendment – a judge in Northern Ireland found that the near total ban on abortion there is in breach of “the Article Eight [of the European Convention on Human Rights] rights of women in Northern Ireland who are pregnant with fatal foetal abnormalities or who are pregnant as a result of sexual crime” in a case brought by the Northern Ireland Human Rights Commission.
Two political observations are worth making in this context.
First, as much as many elected officials in Ireland might wish otherwise, the issue of abortion isn’t going away as it has in the past. Notwithstanding the Taoiseach’s pledge to deal with the 8th Amendment after the upcoming general election, all candidates will be forced to confront it on the campaign trail. This defies the conventional wisdom, which holds that Irish parliamentary elections are all about “bread and butter” national issues, such as the economy, health care and crime, and perhaps even more potent local issues, which vary by region and individual constituency.
While these local and national issues will be as important as ever, leaders on both sides of the abortion debate will press their adherents to push candidates to offer their perspective on the 8th Amendment. The stakes are high. Previously, the pro-life and pro-choice sides fought over whether women have a right to travel to procure abortions and whether suicide presents a substantial enough threat to the life of an expectant mother to justify her obtaining an abortion.
Now, the battle has reached the core question: to retain the pro-life amendment (as it was oft-referred to when it was passed) or to remove it? The answer given by candidates to this question will be a decisive factor for that not insignificant segment of the electorate with deeply held views on abortion when they go to their polling stations.
Second, the capacity for those with deeply held views to alienate the broad middle ground in Ireland on abortion should not be underestimated – both in the run-up to the general election and thereafter. A recent televised debate between Senator Rónán Mullen (member of Seanad Éireann, the upper house of the Oireachtas) and Clare Daly TD (member of Dáil Éireann, the lower house of the Oireachtas) illustrates this. Mullen seemed to deny that there could ever be a sufficient justification for an abortion to take place; Daly did not identify any restrictions on a woman’s access to abortion that she would support.
Their views are poles apart. Repeated opinion polls, however, find that a solid majority of men and women in Ireland are somewhere in the middle. They abhor a liberal, US-like abortion regime, yet they are compassionate and recognize that women should have access to abortion when their unborn child cannot survive independently, or when they have been raped, or are victims of incest. The Irish people who occupy the middle ground will have disliked equally some of the things that Senator Mullen and Deputy Daly had to say in their debate.
In this highly charged, volatile atmosphere, Ireland will seek to reach a new resolution of the abortion conundrum. Let’s all remember the importance of reason, civility and respect as we do so.
Larry Donnelly is a Boston attorney, Law Lecturer at NUI Galway and regular contributor to IrishCentral.com.