Eighth Amendment of the Constitution of Ireland

Changes to the text

The Amendment inserted a new sub-section after section 3 of Article 40. The resulting Article 40.3.3° read:

Background

Under sections 58 and 59 of the Offences against the Person Act 1861, abortion was already illegal in Ireland. However, anti-abortion campaigners feared the possibility of a judicial ruling in favour of allowing abortion. In McGee v. Attorney General (1973), the Supreme Court of Ireland had ruled against provisions of the Criminal Law Amendment Act 1935 prohibiting the sale and importation of contraception on the grounds that the reference in Article 41 to the "imprescriptable rights, antecedent and superior to all positive law" of the family conferred upon spouses a broad right to privacy in marital affairs. In the same year, the Supreme Court of the United States ruled on similar grounds in Roe v. Wade to find a right to an abortion grounded on privacy.

The Pro-Life Amendment Campaign (PLAC) was founded in 1981 to campaign against a ruling in Ireland similar to Roe. Prior to the 1981 general election, PLAC lobbied the major Irish political parties – Fianna Fáil, Fine Gael and the Labour Party – to urge the introduction of a Bill to allow the amendment to the constitution to prevent the Irish Supreme Court so interpreting the constitution as giving a right to abortion. The leaders of the three parties – respectively Charles Haughey, Garret FitzGerald and Frank Cluskey – agreed although there was little consultation with any of their parties' ordinary members. All three parties were in government over the following eighteen months but it was only in late 1982, just before the collapse of a Fianna Fáil minority government, that a proposed wording for the amendment was produced.

Oireachtas debate

The bill introduced by the Fianna Fáil minority government proposed to introduce the following clause into Article 40.3 of the Constitution:

Fine Gael initially supported the wording, but when in government, Taoiseach Garret FitzGerald was advised by his Attorney General, Peter Sutherland, that the wording as proposed was dangerously flawed. Speaking against the original wording during the Dáil debate Alan Shatter argued:

The irony is that I have no doubt, not merely from the interpretation the Attorney General has given but from the other interpretations that can be validly taken from the amendment, that if it in its present form becomes part of our Constitution it will essentially secure a constitutional judgment in the not too distant future requiring the House to enact legislation to permit women to have abortions.

To remedy the perceived weaknesses in the original wording of the amendment bill, the government proposed an amendment to the bill during the committee stage with the following alternative wording:

This alternative wording was criticised by the opposition for not being "pro-life". Speaking against the alternative wording Michael Woods TD said that:

The amendment proposed by Fine Gael would not protect the constitutional right to life of the mother against attack by any future legislation which sought to prohibit abortion in all circumstances even when the life of the mother was at risk. This is a defect which could be important in the future. Such legislation could not be declared unconstitutional on the grounds that it ignored a mother's right to life because the Fine Gael wording provides that nothing in the Constitution may be invoked to invalidate any law which prohibits abortion.

A number of backbench Fine Gael TDs supported the Fianna Fáil wording, and voted against the government amendment, which was defeated by 87 to 65. The majority of Fine Gael TDs then abstained in subsequent votes. The original wording proposed by Fianna Fáil was then approved by 85 votes to 11 votes in the Dáil and by 14 votes to 6 in the Seanad and put to referendum.

Referendum campaign

The referendum was supported by PLAC, Fianna Fáil, some members of Fine Gael, the Roman Catholic hierarchy and opposed by various groups under the umbrella name of the Anti-Amendment Campaign (AAC), including Labour senator (and future President of Ireland) Mary Robinson, feminist campaigners, and trade unions. Few in Fine Gael or Labour campaigned against the referendum, and before the vote, Garret FitzGerald declared that would vote against it. Sinn Féin and the Workers' Party strongly opposed the amendment and the Irish Council of Churches (representing the main Protestant churches) campaigned against it.

Anti-Amendment campaigners warned the vague nature of the amendment, the sectarian nature of it, the possible risk to the health treatment to pregnant women, and to the possible legal consequences for contraception, which the Pro-Life Amendment Campaign denied.

The Amendment passed on 7 September 1983 endorsed by 67% of those who voted.

Judicial interpretation

In a number of cases, the Supreme Court had held that this provision of the Constitution prohibited information within the state on the availability of abortion services outside of the state. In AG (SPUC) v Open Door Counselling Ltd. (1988), the courts injunction restraining two counseling agencies from assisting women to travel abroad to obtain abortions or informing them of the methods of communications with such clinics, and in SPUC v Grogan (1989), the courts granted an injunction restraining three students' unions from distributing information in relation to abortion available outside the state. These rulings were overturned by the Thirteenth Amendment and Fourteenth Amendment in 1992, which explicitly gave people the right to travel abroad for an abortion, and to receive information in Ireland about abortion available abroad.

In Attorney General v. X (the X Case) in early 1992, the High Court granted an injunction to the Attorney General restraining a fourteen-year-old girl who had been raped from obtaining an abortion in England. On appeal, Supreme Court found that as the girl had shown a risk of suicide, to safeguard "the equal right to life of the mother" in Article 40.3.3°, abortion was permissible in this instance.

The Pro Life Campaign, a successor to PLAC, accused the Supreme Court of misinterpreting both the law and the will of the people. The Government and former Attorney-General Peter Sutherland dismissed such claims, arguing that, as they had claimed in 1983, the 'Pro-Life Amendment' was so poorly worded and ambiguous that it could facilitate either pro-choice or anti-abortion interpretations in different circumstances. The Amendment was not reinterpreted by the Supreme Court on the grounds originally voiced by Peter Sutherland that it would lead to abortion prior to viability or kill women by refusing standard treatments for ectopic pregnancies, cancerous wombs, etc. There was no medical evidence called during the X case hearings.

In PP v. HSE (2014), the High Court held that the constitution did not require a woman who was medically brain dead to be kept on life support to keep the foetus within her alive, because the chance of the foetus being born alive were "virtually non-existent". It is unclear how the case would have been decided if the pregnancy was further along.

In an application for leave seeking judicial review of an order for deportation of a Nigerian man, Humphreys J held for the High Court in August 2016 that leave should be granted, in part on the family rights of the unborn child at the time of the deportation.

Subsequent referendums

Three referendums were held in November 1992. The Twelfth Amendment of the Constitution Bill, 1992 sought to exclude "a risk of self-destruction" as grounds for abortion, to overturn the central element of the decision in the X Case. This was rejected by 65% to 35%. The Thirteenth Amendment, permitting travel to obtain abortion in another jurisdiction, was approved by 62% to 38%. The Fourteenth Amendment, permitting information about services in other countries, was approved by 60% to 40%.

After these amendments, Article 40.3.3° now reads,

A further referendum which sought to overturn the X Case, the Twenty-fifth Amendment of the Constitution of Ireland Bill, 2002 was narrowly defeated by 50.4% to 49.6%.

Legislation

The Protection of Life During Pregnancy Act 2013 replaced the abortion offences in the Offences against the Person Act 1861 and made statutory provision for the limited right to abortion established by the X Case. It replaced the offence of "unlawfully procuring a miscarriage" punishable to life imprisonment with the offence of "destruction of unborn human life", punishable by up to 14 years' imprisonment.

Further proposed changes

In February 2015, a private member's bill proposed by Clare Daly to allow abortion in cases of "fatal foetal abnormality" was rejected in the Dáil; the government argued that the bill was unconstitutional, which Daly disputed.

Repeal the Eighth

There was a campaign to Repeal the Eight Amendment after the X Case in 1992, and the three abortion referendums which followed it (the 12th, 13th and 14th). However the campaign lay dormant for more than 20 years until the death of Savita Halappanavar in 2012. The Abortion Rights Campaign was founded in 2012. The #RepealThe8th hashtag was started on Twitter in 2012.

This current campaign is led by both a coalition of pro-choice groups (Coalition to Repeal the Eighth, Abortion Rights Campaign, etc.) and has support from a number of legal academics and members of the medical profession. In the run up to the 2016 general election, a number of parties committed to a referendum to repeal the Eighth Amendment (Labour, Green Party, Sinn Féin and Workers' Party ) and a group of feminist law academics published model legislation to show what a post-Eighth Amendment abortion law could look like. In June 2016, Minister for Health Simon Harris stated his support for a referendum on repealing the 8th.

On 27 July 2016, the government appointed Supreme Court judge Mary Laffoy as chair of a Citizens' Assembly to consider a number of topics, including the Eighth Amendment.

The 5th Annual March for Choice, organised by the Abortion Rights Campaign, took place in Dublin on Saturday September 24 marking the Global Day of Action for Access to Safe and Legal Abortion. The theme of the rally was ‘Rise and Repeal’. The attendance was estimated to be around 20,000.