What is the Eighth Amendment?

Article 40.3.3, known as the Eighth Amendment, was voted into the Irish Constitution by referendum in 1983. The amendment states: ‘The states 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 equates the life of a pregnant woman with that of an embryo or foetus and has created an unworkable distinction between a pregnant woman’s life and her health.

Why was the Eighth Amendment introduced?

Abortion has been illegal in Ireland since the foundation of the State. The British 1861 Offences Against Person Act, which imposed a criminal prohibition on abortion which was punishable by penal servitude (later becoming life in prison), became part of the legislature of the Irish Free State in 1922 following independence from Britain. While abortion remained illegal in Ireland, there were dramatic changes to abortion laws in Britain, Europe and the United States.  In 1967 the British Parliament passed the Abortion Act, providing for a range of circumstances in which abortions can legally be carried out. Following the legalisation of abortion in Britain the numbers of Irish women travelling to England increased significantly, reaching 3,600 in 1981 – the same year that the Irish anti-abortion lobby group, the Pro-Life Amendment Campaign (P.L.A.C.) was launched.

In 1973 the U.S. Supreme Court ruled in the famous Roe v. Wade case that women had the right to abortion under the U.S. Constitution. The decision built on earlier case law around privacy and contraception. The same year that Roe was decided in the US, the Irish Supreme Court had held in McGee v. Attorney General that a right to marital privacy was implicit in the Constitution, and therefore that married couples were permitted to import contraceptives for their own use. Both these cases led to fears among the conservative right in Ireland that abortion could be eventually become legal in Ireland too and by the began to campaign for a constitutional referendum to reinforce the ban on abortion.

The anti-abortion campaign, P.L.A.C., with the help of the Catholic Church, launched a successful campaign convincing the Fine Gael-Labour government of the time to hold a referendum on abortion, despite many politicians at the time expressing anxiety with the wording that P.L.A.C. wished to insert into the Constitution.

The campaign was bitter and divisive but the eighth amendment was passed by a majority of two-to- one (67% to 33%, on a 53% turnout of the electorate). As Professor of Law, Senator Ivana Bacik has written, the eighth amendment “is uniquely misogynistic, in that it expressly sets up the right to life of both the pregnant woman and the foetus that she carries in conflict – anticipating that a time would come when somebody would have to decide between them.”

What was the effect of the Eight Amendment?

It took only nine years after the passing of the referendum for the Supreme Court for the Supreme Court to have to do precisely that. In 1992, in the Attorney General v X the courts had to make a specific ruling on the conflict between the right to life of the pregnant woman and the foetus (referred to in Irish law as the “unborn”).

The X case involved a 14-year- old, known as “‘Miss X”, who became pregnant as a result of rape and whose life was a risk from suicide. Her parents took her to England to have an abortion and contacted the Gardaí to enquire if foetal tissue could be submitted in evidence against her rapist. Gardaí sought legal clarification from the then Attorney General, Harry Whelehan, who proceeded to obtain an injunction against Ms X and her parents prohibiting the abortion. The injunction was appealed to the High Court, where Justice Costello upheld the injunction. The judgment was appealed to the Supreme Court who lifted the injunction by a majority of four to one. All five Supreme Court justices in the X case held that abortion was permissible in certain circumstances and that a woman had a constitutional right to an abortion where necessary to save her life. Such abortions could be performed in Ireland or abroad.

The response of the government to the X case was to attempt to overturn the decision in two conflicting ways; firstly it sought to prevent suicidal women from obtaining abortions in Ireland and, secondly, it attempted to ensure that women would be free to travel abroad to obtain abortions even if those abortions were not lawful in Ireland. The government also sought to permit information on abortion services available abroad.

Three simultaneous referenda were held in November 1992 and the electorate supported two out of the three proposals; they rejected the proposal that would exclude suicide as grounds for an abortion in Ireland and endorsed two constitutional changes that guaranteed a woman’s freedom to travel aboard for an abortion and the freedom to access abortion information in Ireland.

Despite the government’s failure to reverse the X case ruling in 1992 and then again in 2002 legislation was never introduced. In 2013, following the 2010 ruling by the European Court of Human Rights in the A, B and C v Ireland case and the death of Savita Halappanavar in 2012, X case legislation was introduced – the Protection of Life During Pregnancy Action 2013.

Why should the Eighth Amendment be repealed?

The presence of the Eighth Amendment in the Irish Constitution is a source of discrimination against all women living in Ireland. It creates a discriminatory health system where a pregnant woman only has a qualified right to health care. International human rights organisations have repeatedly taken the state to task for its draconian abortion regime, observing that it violates women’s right to bodily integrity and self-determination.