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Image / Editorial

The Eighth Amendment: Everything you need to know before you vote


by Amanda Cassidy
23rd Apr 2018
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Whether you believe it offers a measure of protection or adds a restriction on choice – the Eighth Amendment has been one of the most divisive issues in Ireland in recent years. But where there is controversy, there is often confusion. Amanda Cassidy looks at what exactly we will be voting for in the upcoming referendum on abortion.

Today’s the day. Over 3.2 million Irish people are being asked to vote on whether they want to keep or repeal the eighth amendment of the constitution. Before you cast your vote; bear in mind the following rules and regulations.

  • You must have photo I.D. to vote.
  • Your polling card isn’t essential but you must bring proof of address.
  • It is illegal to canvas within 50 metres of a polling station. This INCLUDES jumpers, badges, and stickers. Leave all of these at home.
  • Photography (including selfies) is prohibited within the polling station.
  • Polling stations are open from 7 am to 10 pm.
  • Avoid confusion; the eighth amendment won’t actually be mentioned on your ballot paper. You will be asked, “Do you approve of the proposal to amend the Constitution contained in the undermentioned Bill? Thirty-sixth Amendment of the Constitution Bill 2018.” Tick YES if you wish to repeal, and NO if you wish to retain.

 

The reasons why women might seek an abortion are complex. Contraception may have failed, the financial struggle of pregnancy could be too much, she could have been raped or the baby may have a fatal abnormality that makes them incompatible with life. We don’t always know or understand the reason –  but what we do know is that around 10 women leave Ireland every day to seek an abortion and abortion pills smuggled into the country has become a way of terminating pregnancies. Like it or not, we know this is happening. This is why the government now feel that it is time to review the situation.

The facts

Today, we will be asked if we want to replace the Eighth Amendment to our Constitution. This is a clause that gives the mother and the unborn an equal right to life. If it gets repealed or removed, the wording will then be changed to hand responsibility over to the Oireachtas to set our country’s abortion laws. That would most likely allow women to abort within 12 weeks of pregnancy. If it doesn’t get repealed, then things will simply stay the same.

The Yes campaign argues that we are sweeping the issue of abortion under the carpet. The No side is afraid a repeal result will open the floodgates to abortion on demand and fear that putting the legislative decision into the hands of our TDs could offer liberalisation of abortion laws beyond what the current Government proposes.

The Eighth Amendment was introduced in 1983 and the text reads: “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.” No changes can be made to this text without a referendum.  Currently, terminations are only allowed when the life of the mother is at risk, and the maximum penalty for accessing an illegal abortion is 14 years in prison. 

So, why now? 

Dr Conor O’Mahony is a senior lecturer at the UCC School of Law and an expert in Constitutional Law. We spoke to him about how the Eighth Amendment came about in the first place: “The Eighth Amendment was prompted by some of the decisions being made in the 60s and 70s in America which struck down laws prohibiting contraception and abortion. In Ireland, there were concerns that similar could happen, and abortion could be legalised. A coalition of pro-life organisations began lobbying politicians for a mechanism to prevent that happening. This movement coincided with an era of political instability in the early 80s Ireland. The amendment was adopted during the Fine Gael/Labour government led by Garret FitzGerald but was drafted by the previous Fianna Fail government of Charles Haughey.”

Dr O’Mahony says that the issue has remained under the spotlight since 1983 due to a lack of clarity around the meaning of the text and a succession of high profile cases that have illustrated how difficult it is to apply.

“Most countries regulate abortion through legislation; Ireland is highly unusual in dealing with the issue in its Constitution. But the Eighth Amendment is just a broad statement of principle, and because we have enacted very little legislation to fill out the detail, the courts have repeatedly been asked to clarify how the Eighth applies to difficult cases such as suicidal rape victims, deportation of pregnant women, frozen embryos and pregnant women on life support following brain death.”

But to understand the evolution of this complex issue, we have to go back to the beginning.

High-Profile Cases

After it became a part of the constitution in 1983, abortion became a taboo subject in this country. Before long, several high-profile cases brought the issue back into focus. In 1983, a woman called Sheila Hodgers from Dundalk died from multiple cancers just 48 hours after giving birth to her third child. It was alleged that she was denied treatment while pregnant because the Catholic ethos of the hospital didn’t wish to harm the foetus. The baby also died immediately after birth.

The next was the so-called X case in 1992. A 14-year-old child was prevented from leaving the country to seek an abortion after getting pregnant through rape.  The case was a huge talking point in Ireland at the time. The Supreme Court eventually reversed the High Court decision, allowing her to travel but also that she could have the abortion in Ireland as her life was at risk. The court also held that if her life was not at risk it would prevent her from travelling –another referendum in 1992 was needed to reverse this.

 Then, in 2012, a young woman named Savita Halappanavar was refused an abortion as she miscarried at Galway University Hospital. She contracted blood poisoning from an infection at just 17 weeks pregnant and died. The death of the 31-year-old dentist made headlines around the world and prompted Enda Kenny’s government to legislate for some of the uncertainty in the medical professions brought about by this case. The Protection of Life During Pregnancy Life Act was passed. It now allows abortion to be carried out in certain cases when the mother’s life is at risk.

There are certain limitations to that particular Bill, including the certification by two medical practitioners that an abortion is necessary to avert a risk of loss of the women’s life from physical factors. In addition, where a woman’s life is at risk of suicide, the act requires three medical practitioners (including two psychiatrists) to certify the necessity of a termination. In 2016, 25 abortions were performed under the circumstances covered by this Bill here in Ireland.

A political hot potato

There is no doubt that there existed a widespread political apathy towards tackling the issue of abortion in this country. The issue has been a political hot-potato since the 1980s. The mounting public pressure and recent cases that challenged the eighth have forced this government’s hand when it comes to providing clarity. The Taoiseach admitted his support wasn’t clear-cut: “For my part, I will advocate for a Yes vote. My own views have evolved over time. Life experience does that.” Leo Varadkar described the current situation when it came to abortions in Ireland as “unsafe, unregulated and unlawful”. Our Minister for Health, Simon Harris surprised many recently when he finally pinned his flag to the mast over the issue: “I cannot close my eyes and block my ears to the fact that 3,265 of our citizens travelled to the UK in 2016 from every county in Ireland. I cannot stand over a situation where the abortion pill is illegally accessed in this country and women, perhaps in the privacy of their own bedroom, in a lonely isolated place, taking a pill without any medical supervision.” The leader of Fianna Fáil Michael Martin has also made a last minute u-turn to speak out in favour of abortion reform.

Conflict

No matter where you stand on the issue, there has been longstanding and historic concern about abortion here in Ireland. While some see as a way to protect life, others see it as a relic of the past. What does the equal right to life of the mother and the unborn mean in a scenario where there might be a conflict between the two rights? It also raises ethical issues about the right of the life of the unborn versus the right to have control over your own body.

Colm O Mahony says abortion is a stand-alone issue when it comes to political issues:

“There is no other issue quite like it. It is hard to gauge, but I’m not certain the Eighth will be repealed. The power to legislate will ultimately be placed in the hands of the politics of the moment and I am not sure if the groundswell of support is as strong as people think. With marriage equality having such a positive message, the Eighth Amendment is fundamentally a harder sell.  There is a hesitation that whatever version of reform that comes will be placed in the hands of the Oireachtas and a deep mistrust of what that will be is still a contentious point for many. In situations like this, there is a need to separate the referendum to repeal the Eighth Amendment, (giving the Oireachtas discretion to change the law) from the proposals that follow (unrestricted abortion up to 12 weeks, which might not gain support in the Oireachtas even after repeal). With an issue as sensitive as abortion, I’m not sure everyone can. To me, it is plausible that the proposal of no restriction up to 12 weeks might be one step too far for many. However, a No vote means no reform at all, perhaps for some considerable time.”

Divisive and Decisive

Today we will be asked if we want to repeal article 40.3.3 of the constitution and replace it with the following sentence: ‘Provision may be made in law for the regulation of termination of a pregnancy.’ Draft laws say abortions will be allowed to be carried out by medical practitioners through abortion pills up to 12-weeks gestation with a three day cooling off period for the women from the request time until she actually gets the pill. It also proposes that terminations after 12 weeks will only be available in exceptional circumstances – for example, if there is a serious risk to the life of the women or in cases of fatal foetal abnormality. If repealed, this new legislation for abortion would be in place by the end of 2018. 

Some see it as a moral, ethical or religious issue. For others, it is about respecting choices. But either way, the time seems to be right for people to have their say. One thing both sides do agree on is that this referendum has started a conversation about the rights of Irish women. No matter the outcome on the 25th, it will be, undoubtedly, a huge and decisive moment for this country.

Polls open at 7am and close at 10pm.