What is the Eighth Amendment?

What happens if we repeal?

The Constitution is not the place to regulate abortion. This point has been made time and again by medical professionals, lawyers and government ministers.  Abortion is a health care matter, not a constitutional one.

If the electorate votes to repeal the Eighth Amendment, the Protection of Life during Pregnancy Act 2013 would still stand. There would be no ‘vacuum’. That law could be replaced or changed subsequently by the Oireachtas.  We understand that the Government is currently examining legislative models to address medical and health care needs.

Doesn’t the Protection of Life During Pregnancy Act do enough?

The Protection of Life during Pregnancy Act (PLDPA) was introduced in 2013 in response to public pressure after the death of Savita Halappanavar and on foot of a European court ruling that Ireland was in breach of human rights standards because of its ban on abortion.

Under the terms of the Act, except where doctors believe a woman’s life is at risk, abortion is banned in all situations including in cases of rape, incest, fatal foetal abnormality or to protect a woman’s health. Doctors are left unclear about the circumstances in which they could be prosecuted for providing a woman with an abortion, because the law is based on criminality instead of clinical guidance.

When you pair this with the wording in the Eighth Amendment, this means in fact priority is given to the protection of the “right to life of the unborn” regardless of the impact this may have on the physical or mental health of the pregnant woman.

Doesn’t the Eighth need to be replaced by another amendment?

Our Constitution sets out the basic principles on which Irish society is based. The Constitution expresses key social values and principles, including principles of fairness, equality, justice and respect. The Irish Government then passes legislation on different aspects of life.

The Constitution is not the place to deal with specific matters of health and wellbeing. Ireland has been criticised by numerous international human rights bodies for its treatment of women, too many of whom have suffered or even died due to the laws severely restricting access to safe abortion. The Government itself is unable to give an adequate response to this international criticism as it cannot properly create laws to fix this situation because of the Eighth. Repealing the Eighth Amendment would remove this barrier. It clears the road for the Government to make laws that are workable, effective and fair and that, above all, meet women’s needs.

I’m concerned about “abortion on demand”

Some media and organisations warn of “abortion on demand”. This is misleading, as it implies that if Ireland votes to repeal the Eighth Amendment, abortion would be available here to anyone at any stage of pregnancy. This is not the case. The Citizen’s Assembly made recommendations to Government specifying the grounds on which abortion should be legal. These are in line with both European norms and with public opinion.

It is also important to note that a woman seeking an abortion is not making a casual or irresponsible ‘demand’. She has made a decision to end a pregnancy and is requesting the right to be able to access a health care service that she needs and should have here in her own country.

Won’t repealing the 8th ‘open the floodgates’?

There is a myth that if you make services less restrictive you will be encouraging women to have abortions. Research shows this is not true. Women have abortions because they have an unintended or unwanted pregnancy and not because the service is easier to access

Irish abortion rates appear to be very low chiefly because of the ‘safety valve’ provided by the UK 1967 abortion law.  The numbers of women travelling to the UK for abortion have remained relatively  consistent over the years, taking into account improvements in sex and reproductive health education, contraceptive use, access to information (including via the internet), and the increasing use of medical abortion, i.e. the  ‘abortion pill’.

There are no ‘floodgates’. Nobody aspires to having an abortion, but it should be available to everyone who needs it.

What about human rights?

Access to safe abortion is a recognised human right because women and girls have a legally recognised right to life, a right to health, and a right to live free from violence, discrimination, torture and cruel, inhuman and degrading treatment. The Eighth Amendment is a grave violation of those rights. Ireland has been repeatedly taken to task by international human rights bodies and courts for its failure to decriminalise abortion and to change highly restrictive laws that put women’s lives and health in danger.

What is Abortion?

What is an early abortion?

The definition of an “early” abortion changes in different countries. It usually means an abortion which takes place in the first 10-14 weeks following conception (first trimester). Early stage abortions can be medical or surgical, but the majority are medical as this is the most straightforward, safe and easily accessible option. Medical abortion means taking pills which induce a miscarriage. It can be painful, but is safer than childbirth.

The Citizen’s Assembly recommended in April 2017 that abortion should be available up to 12 weeks in Ireland without restriction as to the reason. This is in line with recommended best practice in other European countries, and would allow women to access abortion services on request up to 12 weeks.

What is a mid-term abortion?

A mid-term abortion generally means abortion which takes place in the second trimester, or up to viability, generally considered to be at or about 24 weeks. Mid-term abortions can be either medical if carried out early in the second trimester, or surgical. Many countries specify the grounds on which mid-term abortions can be carried out, including for example if there is a risk to the health of the pregnant woman,  if the pregnancy is the result of rape or incest, or if there is a diagnosis of a serious or fatal foetal abnormality.

What is a late-term abortion?

A late-term abortion is one which is carried out in the third trimester of the pregnancy i.e. at or after 24 weeks. Late-term abortions are extremely rare – just 0.1% of all abortions in the UK in 2015  – and are carried out for specific reasons, which can include serious risk to the health or life of the woman, or in the case of a diagnosis of fatal foetal abnormality.

Currently under the Protection of Life During Pregnancy Act 2013, there is no clear guidance as to gestational limits for abortion.  The reality is that if a foetus is not surviving inside the womb because of a foetal abnormality, a woman in Ireland has no legal right to an abortion and must carry the pregnancy to term or travel elsewhere for an abortion. This has been condemned by international human rights bodies as constituting ‘cruel, inhuman and degrading’ treatment of women.

What is ‘partial-birth’ abortion?

The term ‘partial-birth’ abortion is not a recognized medical term. It is not used by the medical profession and has never appeared in a medical journal.  The term should not be confused with intact dilation and extraction (D and X), a rarely-used procedure reserved for late second and third trimester abortions, where the foetus is dying, malformed or there is a threat to the woman’s health or life.

Is abortion necessary for medical reasons?

Yes. Ireland is exceptional in Europe (only Malta has a stricter abortion regime) in making a distinction between abortion to save a woman’s life and abortion to preserve a pregnant woman’s health. Abortion to protect a woman’s health is illegal in Ireland.

The Foetus

Is there consensus on when human life begins and the value of the foetus?

There is no scientific, philosophical or ethical consensus about when human life begins, and there are widely divergent opinions on the value of the foetus. Some people, and some religions, believe that a fertilized egg is a full human being with an absolute right to life. Others view the foetus as having a right to life when it becomes viable. International human rights law recognises personhood and the right to life as beginning at birth.

What is indisputable is that women are human beings and persons with rights. This is not an opinion but a matter of fact. We recognise and value the potential life of the foetus, but we do not equate this with the life of an actual, existing person – a girl or a woman.

Does the foetus have rights?

International human rights law recognizes the right to life as accruing at birth and does not define when life begins. This means that in international law, personhood begins at birth. No international human rights body has found access to abortion services to be incompatible with human rights law.

Protections and rights of the foetus cannot be at the expense of the woman. A woman’s rights should not be ignored or diminished because of her pregnancy. We should not force a woman to bear a child against her will.

What is a fatal foetal abnormality (FFA)?

Many medical diagnoses are included under this umbrella term.  A diagnosis of a fatal foetal anomaly (also called an ‘abnormality’) means that a foetus will die in the womb, during delivery, or shortly after birth.

This is a devastating diagnosis for a pregnant woman, her partner and family, facing the loss of a longed-for baby. It is made even more cruelly difficult in Ireland where, because of the Eighth Amendment, abortion is prohibited in these sad circumstances and a woman is expected to carry the pregnancy to term, whether she wishes to do so or not.  Instead of receiving the care and support they and their partners need and the space to grieve surrounded by family and friends, the Irish State abandons women in these circumstances. If a woman wishes to end the pregnancy, she must travel to Britain or elsewhere for the medical treatment she needs and may not be able to access aftercare services from the HSE including counselling.

Should we say ‘foetus’ or ‘baby’?

Foetus is the correct medical term for life developing in a woman’s womb. In the case of a planned and wanted pregnancy, women usually talk about the baby they are expecting. However, a woman with an unintended pregnancy who is considering or having an early abortion may say, rather, that she is ‘ending the pregnancy’ or ‘having an abortion’.

We should be guided by how the pregnant woman herself talks about her pregnancy. A good rule of thumb is that ‘a foetus becomes baby when the woman carrying it decides it does.’  (‘How to think about the foetus’: Joyce Arthur, www.arcc-cdac.ca)

Women’s Health*

What about women’s health?

When sought, abortion that is accessed legally and safely with proper after-care typically has a positive impact on a woman’s health.

In Ireland, the impacts of stigma, isolation and secrecy, coupled with the absence of legal abortion services here and the financial and practical difficulties involved in travelling for abortion in the UK and elsewhere, mean that women with an unwanted pregnancy may suffer anxiety, stress and depression as a result. According to medical opinion, Ireland’s restrictive abortion laws are damaging to women’s mental health.

It is also important to note that the Eighth Amendment creates an unequal and discriminatory health system in which a pregnant woman has only a qualified right to healthcare i.e. pregnant women have lesser healthcare rights as compared with non-pregnant women and all men.

The Eighth Amendment also makes a dangerous and unworkable distinction between a pregnant woman’s life and her health. Doctors are obliged to wait until a woman’s life is at risk before being able to provide appropriate health care, i.e. to carry out an abortion. The law, combined with the threat of criminalization (with a sentence of up to 14 years imprisonment), are known to have prevented doctors from being able to act in the best interests of their patients as, for example, in the case of Savita Halappanavar.

Medical abortions (i.e. using the abortion pill up to the 9th or 10th week of pregnancy) are very safe and relatively cheap.  Yet women who choose to self-induce an abortion in Ireland could face up to 14 years in prison.

Does abortion have negative psychological consequences for women?

Research claiming to link abortion and mental ill-health has been disproved by health care and mental health publications and service providers. Reliable international evidence shows that abortion does not increase the risk of mental health problems. According to the Royal College of Psychiatrists in 2011: rates of mental health problems for women with an unwanted pregnancy are the same whether women had an abortion or gave birth; mental health outcomes are associated with a woman’s mental health before abortion.

The Crisis Pregnancy Agency report in 2007, Psychological Effects of Abortion on Women: A Review of the Literature, found no long term effects from having an abortion: “the legal and voluntary termination of pregnancy rarely causes immediate or lasting negative psychological consequences in healthy women”.

In fact, there is considerable evidence that the stigma and silence about abortion, rather than abortion itself, can have negative mental health consequences for women.

Don’t lots of women regret having an abortion?

Some women may regret it, but the majority of women say they experienced relief. A University of California study in 2015 found that 95% of women who had an abortion say that it was the right choice for them (Rocca et al., 2015).

Considering an abortion is not easy and women must be supported in making an informed choice about what is best for themselves and their families. The best way to support a woman in making a decision is to ensure that she has access to clear information and to comprehensive reproductive healthcare services, including abortion. She should be in a safe setting where she can reflect and make sure it is the best choice for her in her individual circumstances.

Is an abortion the right choice?

Only the woman directly affected can make that decision. We respect women’s autonomy, and their ability to make balanced, informed decisions relating to their pregnancies.

Women in Ireland are currently among only 4% of women in the developed world where their home country leaves them with such limited choices and severe penalties if they seek abortion within the State. International human rights groups have condemned the State for its treatment of women. We must expect better.

Don’t lots of women regret having an abortion?

Some women may regret it, but the majority of women say they experienced relief. A University of California study in 2015 found that 95% of women who had an abortion say that it was the right choice for them (Rocca et al., 2015).

Considering an abortion is not easy and women must be supported in making an informed choice about what is best for themselves and their families. The best way to support a woman in making a decision is to ensure that she has access to clear information and to comprehensive reproductive healthcare services, including abortion. She should be in a safe setting where she can reflect and make sure it is the best choice for her in her individual circumstances.

Could legalising abortion be bad for women?

It is the exact opposite. Restrictive, punitive laws do not stop abortions:  women will seek abortion when they need it whether it is legal or not. We know that when abortion is legalised, maternal mortality rates go down, so decriminalising abortion saves lives. Through safe, legal and healthcare-based abortion services, we can respect women’s autonomy and ability to give informed consent, just like any other medical procedure. International research has shown that through this approach, abortion rates actually decrease. The distinguished professor of obstetrics and gynaecology, Sir Sabaratnam Arulkumaran, recently commented in a Dail Committee hearing that ‘if you are not for legal abortion, then you are for illegal abortion’.

There is no such thing as a country without abortion.  The choice we face is between dangerous, traumatic or stressful abortion and safe abortion available for all who need it, regardless of their circumstances and income and which empowers women to make the right decision for themselves and their families.

Could women be pressured into having abortions?

A crucial aspect of safe and legal access to abortion services is that it is seen as a normal healthcare procedure as part of a wide range of reproductive and sexual healthcare services. This means that practitioners are trained to speak to women about all of their choices so that they can make an informed decision.

Under Ireland’s current abortion regime, women are pressured into unwanted pregnancies, into financial hardship, travelling alone without support, and taking risks that put them in danger.

If abortions are happening in the UK, isn’t that enough?

Currently Ireland ‘exports’ its abortion needs to the UK. In 2015, 3,265 women were known to have travelled to the UK for abortions. 8% of these were girls and young women aged 15-19. About half were women who are married or in civil partnerships.

Often making this journey is coupled with severe emotional stress from the stigma attached to it, fears about the risk of complications while travelling, and financial hardship. Medical abortion is by far the safest method, and 80% of abortions in the UK are medical. However, most (80%) Irish women are obliged to opt for surgical abortion because it enables you travel there and back in the same day, and they simply cannot afford to stay overnight. Many make this journey alone.

But even this stressful option to travel is not available to everyone. Some women – we do not know how many – cannot afford to travel, cannot risk their partner or family finding out, cannot find someone to mind their children or cannot get time off work, cannot leave the country because of their immigration status, or because they have a disability or are unwell. These women are discriminated against by a law which denies them a right – the right to travel for abortion – which others can exercise.

Should Abortion be understood as part of women’s reproductive health?

Whether someone is having an abortion because they do not want to be pregnant, because it is medically necessary, because of a fatal foetal anomaly or for whatever other reason, abortion must be available to them and should be integrated in reproductive healthcare services.

Women have the right to make medical decisions concerning their bodies, which includes the decision to either continue or terminate a pregnancy.

Abortion, the family and society

What about children having abortions?

Approximately 8% of those who travelled to the UK in 2015 for abortion services were girls and young women between the ages of 15-19. Girls and adolescents are a particularly vulnerable group as pregnancy for them carries heightened risks due to their physical immaturity. The most effective way to reduce the need for children to seek abortion is through the provision of high quality sex education programmes and by ensuring access to contraception.

In cases where children and adolescent girls do need to access abortion, there must be adequate supports including the option to access counselling and aftercare. As with women, young girls should never be forced into carrying an unintended pregnancy to term. They should never have to self-induce an abortion (e.g. by taking the ‘abortion pill’ without medical supervision or even family support), and they should not have to travel abroad for abortion.  Many girls in Ireland take exceptional risks because of abortion stigma and the fear of their families finding out  about their choice, or fear of how doctors or health and social services may respond if they turn to these for support.

No girl should be placed in a psychiatric hospital when she is in need of emergency healthcare. No one at any age should face the possibility of prosecution and 14 years in prison if she is found to have had an abortion in Ireland.

Until we repeal the Eighth Amendment, this is the regrettable reality.

I’ve heard that ‘pro-life is pro-family’?

Many women from Ireland who go to the UK for an abortion are already married or in a stable relationship.  In fact the majority of women who have an abortion are already mothers. There is a huge variety of reasons why women already in a family unit may need to seek an abortion. The reasons may include not being able to afford another child, having no stable accommodation, needing to care for another family member full-time, being unemployed, or facing health challenges themselves or in their families.  Whatever the reason, enabling women to have an abortion when they need it is the best way to be proactively pro-family.

What about disability?

If a woman who needs an abortion also has a disability, she may face a number of additional barriers. Having to travel for an abortion may raise particular problems for a woman with a disability.  It may mean, for example, that that the doctor treating her in the UK clinic cannot have access to her full medical history. Practical challenges she may face could include  increased travel costs,  the need for supports when travelling  e.g. a personal assistant or carer; or difficulties in getting relevant information. Other very difficult problems arise if a girl or a woman with a disability is living in an institution with a religious ethos which would prevent her travelling.

Ideally a woman with a disability who needs an abortion should be able to do so in an appropriate healthcare or medical centre near her home, with the support of her usual doctor, her family and any other support she needs. This is the best way to ensure equality of access without discrimination.

Those who disagree with legalising abortion sometimes say that it would lead to targeted discrimination against people with disabilities. In fact, rates of abortion following the diagnosis of a disability or lifelong condition vary widely across countries which provide legal abortion, and there is no evidence that what happens in some of these countries would also happen here in Ireland.

We believe that the issue of disability is a wider one for our society as a whole:  we need a very different approach to disability and to providing comprehensive supports that meet the real-life needs of people with disabilities and their families and communities.

Shouldn’t men have a say?

The decision about whether or not an abortion is the right decision should always be primarily a woman’s decision, with advice and support from her doctor and health care professionals. It is not possible to legislate for the right of another person to have a legal entitlement in this situation, as this could have negative consequences. While in many cases the decision will be made by a woman with a partner, and perhaps her family, in other cases involving family or a partner may not be in a woman’s best interests. In the case of an abusive relationship, it could put the woman in very real danger.

Who pays?

Abortion is often an urgent requirement, and not an elective surgery. We must ensure equality of access, so that abortion is no longer only available to those women in Ireland who can afford to have one. Legal abortion should be available through the health services on the same basis as all other health care.

What about contraception or adoption as alternatives?

Contraception is not always a sure means of preventing an unintended pregnancy. No contraceptive is 100% guaranteed, for whatever reason. Some women also cannot use certain contraceptives.

In cases of rape or incest, the woman or girl may not have been taking hormonal contraceptives, so prevention is not always a possibility. So Ireland must provide solutions and support for women when they are faced with an unwanted pregnancy. 

No woman should be forced into an adoption. While some may see this as an alternative to abortion, there are many reasons why this might not be a workable or acceptable option. This might be due to health concerns, practicalities in the woman’s life meaning she cannot carry a pregnancy to term, or that she is not prepared for the emotional impact of the adoption process.

All women deserve to have their bodily autonomy respected. Women know their unique circumstances best and should be empowered to make this decision for themselves.

Legal disclaimer
This article does not constitute medical advice. If you have questions about seeking an abortion and need advice about your best course of action, please contact a trained professional.