The Irish Abortion Referendum: An Opportunity for Change
Jamie McLoughlin 25th May 2018

Today, the Irish people will be asked to vote in a referendum on whether or not to repeal the 8th Amendment of the Irish Constitution which prohibits access to abortion in nearly all circumstances. If a majority votes in favour of the proposal, then the 8th Amendment will be replaced with an enabling clause which empowers the legislature to make provision ‘by law for the regulation of termination of pregnancy.’ Friday 25th May thus has the potential to be a momentous day in the struggle for equality and human rights in Ireland.

The 8th Amendment (Article 40.3.3°) states that the ‘mother’ and the ‘unborn’ foetus have an ‘equal’ right to life. The Irish Supreme Court has interpreted this to mean that a woman may only access an abortion in circumstances where there is ‘a real and substantial risk’ to her life as distinct from her health, which can only be averted by the termination of pregnancy. Performance of an abortion outside these narrow parameters is a criminal offence and carries with it the penalty of a 14-year prison sentence.

The 8th Amendment has acted as a constitutional straightjacket, precluding the legislature from allowing access to abortion in cases of rape, incest, risk to the health of the mother, and even fatal foetal abnormality. The human and constitutional rights of women to bodily integrity, autonomy, equality, privacy, and to not be subjected to cruel, inhuman and degrading treatment, have all been subordinated to the foetal right to life.

Several United Nations treaty bodies tasked with monitoring compliance with international human rights conventions have found Ireland’s abortion laws to be in clear violation of the norms of international human rights law and have recommended urgent change. The UN Human Rights Committee, for example, has held in both the Mellet and Whelan decisions that Ireland’s abortion regime violates the rights to privacy, non-discrimination, and freedom from inhuman and degrading treatment under the International Covenant on Civil and Political Rights by forcing women in the circumstances of fatal foetal abnormalities to travel to the UK to access terminations. This referendum, therefore, presents the Irish people with an opportunity to bring Irish law on abortion into line with international human rights law, and closer to the European norm.

The Draft Heads of Bill which the Government proposes to implement if the 8th Amendment is repealed provides for a protected period in the first 12 weeks of pregnancy in which women are entitled to access abortion without specific indication, i.e. without having to provide a reason. This timeframe is consistent with the European norm and its purpose is primarily to facilitate access to terminations for those who have become pregnant as a result of rape, given the impossibility of having a verification procedure for rape. After the first 12 weeks of pregnancy, abortion will only be available in cases of fatal foetal abnormality, where there is a risk of serious harm to the health of the mother (this applies to physical and mental health), or where there is a risk to the mother’s life. In these cases, the certification of two medical practitioners (one of whom must be an obstetrician) will be required. Once the foetus has reached viability, terminations will not be permitted. A waiting period of 72 hours after initial consultation (except in emergencies) before having access to a termination is also proposed. In the event of repeal however, the current legislative framework would remain in place, until it is amended by the legislature or invalidated by the courts.

Importantly, the Supreme Court has recently made clear that repeal of the 8th Amendment would not deprive the unborn of all constitutional protection. The Court has stated that post-repeal the legislature would still be entitled to legislate to protect foetal life as an aspect of the common good: ‘Furthermore, the State is entitled to take account of the respect which is due to human life as a factor which may be taken into account as an aspect of the common good in legislating.’

By voting yes, the Irish people will enable their elected representatives in the legislature to introduce a modern, evidence-based, human rights compliant regulatory framework which can deliver access to compassionate healthcare for women here in Ireland. Voting yes will mean women in vulnerable and tragic situations are no longer forced to go through the indignity and additional trauma and expense of travelling to another jurisdiction to access basic healthcare. It will mean women no longer have to order illegal abortion pills over the internet and take them without medical supervision for fear of facing criminal prosecution. A no vote, on the other hand, maintains the status quo which reduces women to their reproductive capacity, treating them as ‘reproductive instruments’ which can be commandeered by the State under the compulsion of the criminal law. It would perpetuate the shame and stigma that women have been forced to endure for simply seeking to exercise their bodily autonomy.

The Proclamation of the Irish Republic in 1916 promised that an independent Irish state would guarantee ‘equal rights and equal opportunities to all its citizens.’ To date, the Irish State has failed to keep that promise. The Irish people have the power to bring the Proclamation’s vision closer to fruition on Friday 25th by voting to repeal the 8th Amendment, thereby restoring to women their fundamental human rights under the Constitution.

Author profile

Jamie McLoughlin is currently a BCL candidate at the University of Oxford studying comparative human rights law, comparative equality law, and constitutional theory. He completed his undergraduate law degree at University College Dublin, in Ireland.

Citations

Jamie McLoughlin, “The Irish Abortion Referendum: An Opportunity for Change’” (OxHRH Blog, 25 May 2018), <http://ohrh.law.ox.ac.uk/the-irish-abortion-referendum-an-opportunity-for-change> [date of access].

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