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ABOUT THE CONSTITUTION
What is the 8th Amendment?
The 8th Amendment was added to the Constitution in 1983. It provides that the State must act to protect and vindicate the right to life of ‘the unborn’ (the embryo or foetus in the womb from of conception until birth), with ‘due regard’ to the equal right to life of the pregnant woman. In the X case in 1992, the Supreme Court interpreted the Amendment conservatively to mean that abortion can only be permitted where there is a ‘real and substantial risk’ to the right to life of the woman, which can only be avoided by terminating the pregnancy. The pregnant person’s rights besides life (for example her right to bodily autonomy) are not taken into account. Her right to life means only that she is entitled to survive the pregnancy. The Constitution is the fundamental law of the State: all legislation passed by government must comply with it. The government argues that the 8th Amendment prevents the legislature from liberalising the current abortion law.
What is Ireland’s current abortion legislation?
The Protection of Life During Pregnancy Act 2013 regulates access to life-saving abortion in Ireland. Two doctors must confirm a woman’s entitlement to access an abortion in cases of physical risk to life; three in cases of suicide risk. In 2015, just 26 abortions were carried out under the Act. In 2014 the number was 25. So the Act is of no assistance to the vast majority of people who need abortions. The Act also criminalises all other abortions carried out in Ireland. So, for example, a person who causes her own miscarriage in early pregnancy using pills has committed a criminal offence which can attract a 14 year prison sentence.
The Regulation of Information (Services Outside the State For Termination of Pregnancies) Act, 1995 governs the information which doctors and pregnancy counsellors may give to patients who need to access terminations outside Ireland. They may not make appointments for their patients with services abroad, and they may not ‘advocate or promote’ abortion.
What are the effects of the 8th Amendment?
The 8th Amendment does not mention the word abortion. It refers to the ‘unborn’. As such the 8th Amendment affects all pregnancies, and has been used to override pregnant persons’ medical decision-making where doctors feel that their decisions present a risk to their foetus’ life. Organisations working on this issue include AIMS and Midwives for Choice.
The most well-known effect of the 8th Amendment is that it prohibits abortion except in life-saving cases. Most people who need an abortion (including those pregnant through rape, those whose pregnancy places their health at serious risk, those living with domestic violence or in poverty, and those whose foetus is unlikely to survive long after birth) will need to travel abroad to access services, often at great personal cost, or may use illegally-obtained abortion pills.
The 8th Amendment may also require doctors to take extreme measures in an effort to provide an opportunity for the foetus to be born alive, even where those measures harm and degrade the pregnant woman. The case of Ms. Y showed that later on in pregnancy, a person deemed entitled to a life-saving abortion under Irish law may be required to submit to a Caesarean section for this reason. In the case of PP v HSE, the body of a woman who was brain-dead was kept on life support in an effort to prolong her pregnancy. The High Court allowed the life support to be withdrawn when it was shown that the foetus was extremely unlikely to survive to term.
Why does the 8th require criminalisation of abortion?
We do not agree that it does. Criminalisation of abortion is stigmatising, discourages pregnant persons from seeking necessary healthcare, and does not prevent termination of pregnancy. The current criminal penalties for abortion are too high. The State could instead work with pregnant persons to meet its constitutional obligation to ‘respect, defend and vindicate’ the right to life of the foetus by taking positive steps to ensure the continuation of pregnancy; for example by enhancing social and economic supports for marginalised pregnant persons and improving sex education in schools and communities.
Why does the 8th deny access to abortion in cases of fatal foetal abnormality?
We do not agree that it does. The State’s obligation under the 8th Amendment is to defend unborn life insofar as it is ‘practicable’ to do so. At least in cases where it is probable that the foetus will not be born alive, the prohibition on abortion is not justified. However, the 8th Amendment may impose an unworkably high standard of proof in cases of fatal foetal abnormality: it is not always possible to tell with certainty at the point of diagnosing a fatal foetal abnormality whether the foetus will survive until birth, survive the birth itself, or live for some short time after birth. The State has argued that if there is some chance that the foetus can be born alive, the pregnancy cannot be terminated. This position places parents who have received a diagnosis of fatal foetal abnormality in an impossible position, violating their human rights. We support Termination for Medical Reasons Ireland in their campaign for law reform.
Should the 8th be repealed or replaced?
We argue that the 8th should not remain in the Constitution in any form. The text of the Constitution should not reference termination of pregnancy: healthcare should be regulated by legislation, not by the Constitution.
The Constitution could be changed by referendum in any of several ways including:
- Repeal the 8th Amendment and do not replace it.
- Replace the 8th Amendment with a provision making clear that the Oireachtas has wide powers to legalise access to abortion (as recommended by the Citizens’ Assembly).
- Replace the 8th Amendment with a positive limited right to reproductive autonomy, clarifying the balance which the people wish to strike between the rights of pregnant persons and the state’s interest in protecting foetal life. We say ‘limited’ here because very few constitutional rights are absolute.
Wouldn’t removing the 8th generate huge uncertainty in the law?
We do not believe that removing the 8th would generate extraordinary uncertainty in the law. Some measure of uncertainty is normal in a constitutional system like Ireland’s; constitutional provisions are expressed in broad language, and we can only know precisely how a given Supreme Court thinks a particular provision should apply in a particular scenario when an appropriate case comes to the Court. If the 8th were repealed or replaced, the current abortion law (the Protection of Life During Pregnancy Act, 2013) would remain in force until the Oireachtas changed it. New legislation passed by the Oireachtas would be presumed to be constitutional and, in general, where complex issues of public policy are concerned , the courts defer to the Oireachtas. See below for the question of what the Supreme Court might do if this Act, or new legislation were challenged, in full or in part.
What will the Constitution say about the rights of pregnant persons and the rights of the unborn if the 8th is removed?
This depends on the text, if any, inserted in the Constitution after a referendum. The most important changes effected by removing the 8th Amendment are that:
- the rights of the pregnant person would no longer be considered ‘equal’ to any rights or interests attributed to the foetus.
- the courts and the legislature would be free to take account of women’s rights other than the right to life. These include the right to freedom from torture, inhuman and degrading treatment; the right to private and family life; the right to health and the right to freedom of conscience.
Whether the ‘unborn’ would remain an independent rights-bearing- legal ‘person’ within the Constitution is uncertain. However, it is almost inevitable that, even if the Constitution is changed, it will continue to recognise some important interests in relation to ‘foetal life’, and the right of the State to take appropriate measures to protect that interest, as a key aspect of the common good. This has been the experience in other constitutional democracies. Taking this approach would mean that the state would not be permitted to take any steps to prevent termination of pregnancy which disproportionately affected women’s constitutional rights.
It is important to remember that abortion cases are rarely brought to the Irish courts; pregnant persons are understandably reluctant to bring these cases; most of the cases brought under the 8th Amendment involved young women in the care of the state, or were brought by ‘pro-life’ pressure groups such as SPUC. The most likely avenue by which new abortion legislation could come to court might be if the President referred it to the Supreme Court before signing it, as permitted by Article 26 of the Constitution.
If the Constitution is changed in a referendum and the Oireachtas passes new abortion legislation, could that legislation be struck down by the Supreme Court?
This very much depends (i) on the text, if any, inserted in the Constitution after a referendum and (ii) on the content of that legislation. However, we maintain that if the 8th is repealed, or replaced with a provision permitting abortion, there is a strong argument that very restrictive abortion law would be incompatible with the new constitutional position.
Abortion law can be quite complex, as it may need to cover, not only ‘grounds’, but questions of access to medical treatment, non-discrimination, regulation of care and information, and issues of freedom of conscience. It is difficult, therefore, to say in advance whether a particular legislative proposal is constitutionally ‘watertight’. By the same token, it is important to acknowledge that the government has considerable scope, consistent with the constitution, to develop liberal, human rights-compliant, abortion law.
How can we know what sort of law the government will pass if the Constitution is changed in a referendum?
We would encourage the government to prepare and publish a draft bill or heads of bill in advance of a referendum, and commit to enacting that legislation as soon as possible after a majority vote for repeal/replacement.
How many other countries put abortion in the Constitution?
About 20. Their provisions take different forms; some are more conservative than others. Most countries which put abortion in the Constitutions have a very poor record on abortion rights.
ABOUT REFORMING THE LAW AFTER THE CONSTITUTION IS CHANGED.
What does international human rights law say about abortion legislation?
A range of international treaty bodies have confirmed that Ireland’s abortion law does not meet the requirements of international human rights law. In the years since the PLDPA was passed:
- CEDAW has said that the State must change the constitutional provisions on abortion, repeal the Protection of Life During Pregnancy Act 2013, and pass new abortion legislation decriminalising abortion and expanding access. It emphasised the discriminatory effects of the obligation to travel to obtain an abortion.
- In Mellet v Ireland the UN Human Rights Committee held that Ireland’s abortion law violated Amanda Mellet’s rights to privacy and freedom from inhuman and degrading treatment.
- The UN Human Rights Committee, in line with CEDAW, has recommended constitutional change, and liberalisation of the abortion law to cover cases of rape, incest, fatal foetal abnormality and serious risk to the health of the mother. It also emphasised the need for guidance to ensure that doctors interpret the existing law appropriately.
For an accessible discussion of Ireland’s human rights obligations see the Center for Reproductive Rights’ submission to the Citizens’ Assembly.
What is the abortion law elsewhere in Europe?
The majority of European countries provide for a period of abortion on request, most up to 12 weeks. For a detailed discussion see here.
What should good abortion legislation do?
Lawyers for Choice have not yet made concrete recommendations for abortion law reform, though we will be working together with other civil society organisations, as appropriate, to do so.
Good abortion law will come from a careful process of reflective deliberation and drafting, informed by a range of national and international experiences and expertise. In order to comply with international human rights law and reflect best international practice in abortion care, abortion legislation should:
- Take abortion outside of the criminal justice system. People who obtain abortions, doctors and nurses who provide them, counsellors who assist people to access them, and activists who supply abortion medication should not be vulnerable to prosecution. People pregnant through rape should not be required to engage with the criminal justice system as a condition of accessing abortion.
- Vindicate pregnant people’s human rights. The law should not impose formal conditions for accessing abortion which place pregnant people’s lives or health at risk. It should not tolerate inhuman and degrading treatment; especially practices which subject pregnant persons to medical treatment without their full and informed consent, or pressuring them assent to such medical treatment. It should empower pregnant people to make their own healthcare choices in conditions which secure their privacy and dignity.
- Ensure that those who need abortions can access them – as early as possible and as late as necessary. It is essential that legislation ensures that people can access abortions in circumstances of serious health crisis, including risk to life, severe health risks, rape, and diagnoses of fatal foetal abnormality. That is the minimum required by international human rights law. In addition, we must recognise that abortion is an ordinary women’s healthcare need, and access should not be confined to ‘exceptional’ cases. It should be available on request, without the need to show additional grounds. Most abortions are accessed in early pregnancy; however, pathways to care must also be available to vulnerable people who may experience delay in accessing services.
- Avoid placing arbitrary obstacles in the way of people who need abortion services. Abortion should be understood as part of the continuum of women’s reproductive health care, and not as an aberration. Unless they request it, pregnant persons should not be required to submit to additional interviews, counselling, or information sessions which would not be compulsory in any other healthcare context. Abortion care providers should not be burdened by exceptional regulations unless these have an independent clinical justification.
- Positively ensure meaningful access to abortion services, and ensure reproductive justice for marginalised communities. The state must ensure that people have equal access to legally available abortion services. This will mean funding appropriate abortion services nation-wide, and ensuring that staff, both in private providers and in the private and public healthcare sectors more broadly, are trained in accordance with international best practice, and familiar with all governing law. It must also secure the rights of those providing abortion care to dignity and safety at work. Although the state must accommodate conscientious objection, it must ensure that sufficient non-objecting service providers are available to meet needs. Care pathways must be designed with the particular needs of teenagers, disabled people, and ethnic and linguistic minorities in mind. The state must take responsibility for ensuring that everyone who needs it can access accurate information about abortion care and the abortion law.
Should the government adopt the recommendations of the Citizens’ Assembly?
The Assembly’s recommendations provide a very good starting point. In particular, it is significant that the Assembly recommended that legislation provide for access to abortion on request up to 12 weeks, and access on socio-economic grounds and health grounds up to 22 weeks. However, the Assembly’s proposals are not comprehensive and require further scrutiny in several respects. [link to press release]
Are the Assembly’s recommendations constitutional?
See our FAQ notes on constitutional issues here and here. [insert links]
Why do we need any abortion legislation at all?
Some reproductive justice advocates argue that abortion should be regulated like any other healthcare issue, without the need for a separate abortion law. We agree in principle, and we also argue that the regulation of abortion should not be separated from the regulation of access to reproductive healthcare and information more generally. However, we argue that legislation can empower pregnant persons while a healthcare system is transitioning from very restrictive abortion law to more liberal access, in particular by providing clarity as to the extent of rights to abortion. Absence of legal clarity is already a ‘chilling factor’ in Ireland; doctors have argued that they cannot interpret the law in concrete cases. In drafting this legislation, however, we have been equally mindful of the potentially exclusionary and discriminatory effects of restrictive exceptions-based legislation.
Some Irish reproductive justice advocates argue that Ireland should adopt the ‘Canadian’ abortion law model. More context on that idea is available here.
Where can I find a good timeline on the development of abortion law in Ireland?
The IFPA have an excellent timeline here.
Why is it important to ‘decriminalise’ abortion and what does that mean?
Decriminalising abortion means taking abortion outside of the criminal justice process, and regulating it under medical law, not criminal law. It means that neither a person terminating their own pregnancy, nor anyone assisting them to terminate their pregnancy with their consent (whether medical professional, friend, pregnancy counsellor or otherwise) should be vulnerable to prosecution. [More detail needed here]
Should abortion legislation include a rape ground?
We recommend that no ‘rape ground’ should be included in any legislation. In other jurisdictions, accessing abortion on grounds of rape requires women to ‘prove’ their rape to the satisfaction of medics, police or courts. Such requirements reinforce damaging myths about rape victims’ credibility and lead to trauma and delay. Instead, the Oireachtas should ensure that other broader grounds (e.g. risk to health) can meet the needs of those pregnant through rape.
Should abortion be available on the grounds of a diagnosis of foetal disability?
We support the Termination for Medical Reasons Campaign, and argue that termination of pregnancy for reasons of fatal foetal abnormality is already constitutional in many cases, even without repeal or replacement of the 8th.
We do not support a specific disability ground short of fatal foetal abnormality. Its inclusion is stigmatising. Again, care should be taken to ensure that other grounds are drafted appropriately to ensure that they can meet the needs of those unable to continue a pregnancy after a diagnosis of severe foetal anomaly. We adopt the Center for Disability Law and Policy at NUI Galway submission to the Citizens’ Assembly.
What would abortion legislation contain besides grounds?
Abortion legislation should also take measures to improve and ensure access to abortion, particularly among marginalised groups. This includes:
- decriminalising abortion
- providing for funding of services
- educating medical professionals about law and best practice in abortion care
- ensuring the availability of appropriately skilled professionals willing and able to provide legal abortion care
- regulating exercise of conscientious objection
- protecting people seeking abortions and those treating them from harassment
- ensuring access to accurate and appropriate abortion information and education
Can Irish hospitals refuse to perform abortions if the law is liberalised?
There are no decided Irish cases on this issue, although the relationship between obstetric practice and religion is a matter of some public controversy. Article 44.2 of the Constitution guarantees individual freedom of religion and conscience, and so conscientious objection must be accommodated by any abortion law. However, Article 44.2 states that this right is guaranteed to every citizen ‘subject to public order and morality’. As such, it is restricted. We would argue that the right to conscientious objection should extend to direct participation in abortion procedures, but not to ancillary work such as hospital administration or nursing aftercare. In addition, the state has an obligation to ensure that assertions of conscientious objection do not inhibit access to legal abortion. It must ensure that sufficient trained and willing healthcare practitioners are available and authorised to provide abortion care.
A separate issue arises around institutional assertions of conscientious objection; the right of e.g. a religious congregation to prohibit procedures from being carried out in publicly funded hospitals under its control. We would argue that the right to conscientious objection must be an individual and not an institutional right. However, Article 44.5 of the Constitution provides for denominational autonomy; the right of religious groups to manage their own affairs. It is not clear that healthcare, particularly where a pregnant person’s life or health is at risk, falls within the scope of denominational autonomy.
What is a good example of a country with liberal abortion laws?
One recent common law example is the Termination of Pregnancy Reform Act, passed in Australia’s Northern Territory in 2017. One good European example is the Spanish law of 2010.
Why does this guide say ‘pregnant person’ instead of ‘woman’?
We support the use of inclusive language in the reproductive justice movement, irrespective of statutory niceties. However, we also believe that this language is consistent with the Gender Recognition Act 2015. In Ireland, transgender people can self-determine without the need to undergo medical intervention or examination. Thus, under Irish law, not everyone who can become pregnant will identify as a ‘woman’.
Note the photo is of one of Lois Weaver’s Long Tables.