After decades of intransigence, Ireland will hold a vote to repeal a constitutional ban on abortion
2018 could be the year abortion is finally legalized in Ireland if a referendum to repeal the constitution’s Eighth Amendment passes this spring.
The country’s restrictive abortion law is over 150 years old. Passed in 1861, the Offenses Against the Person Act makes it an offence to “procure a miscarriage” for any reason. While abortion was being liberalized in most other western democracies throughout the 20th Century, Ireland refused to follow suit. Dominated by religion both in and out of politics, the country’s lawmakers looked for a way to protect its people from the scourge of human rights protections that were then sweeping the globe. They could have simply left the issue alone—abortion had been, after all, illegal for well over a century—but feared that doing so might allow a judge to rule the Offenses Against the Person Act unconstitutional, as had already happened in the United States, Canada, and elsewhere. Instead, lawmakers amended the constitution to make it impossible for the decision to be made outside of Ireland’s legislature, known as the Oireachtas.
Ireland’s constitution can only be amended via referendum, and in September 1983 the Eighth Amendment passed with nearly 67% of the vote. The new amendment equated the rights of the fetus and the mother: “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.”
Calls to repeal the Eighth Amendment have occurred since it first passed. One notable case was the “X Case” in 1992, which established that a woman had the right to an abortion if the pregnancy endangered her life, including by suicide. Known officially as Attorney General v X (the letter X protected the minor woman’s identity), the case revolved around a 14-year-old who became pregnant as a result of rape. The pregnancy made her suicidal and she resolved to travel to England for an abortion. Prior to doing so, however, her parents asked the Irish police whether DNA from the fetus would be admissible in court to prove rape, and their inquiry caught the attention of the Attorney General, who sought an injunction. The court ruled a woman does have a right to travel for an abortion when her life—but not simply her health, it insisted—was in danger. After an initial flurry of activity following the verdict, however, the movement to repeal the Eighth Amendment died down.
The movement gained renewed urgency following the October 2012 death of Savita Halappanavar, a 31-year-old dentist in Galway. During a wanted pregnancy, Halappanavar suffered a miscarriage that took seven days to unfold. While it was clear to hospital staff that the fetus had no chance of survival, and even though Halappanavar asked for an abortion, the presence of a fetal heartbeat meant doctors were legally powerless to do anything: procurement of miscarriage is illegal, no matter the reason. Doctors misjudged the risk to Halappanavar. By the time they realized her life was in danger, it was too late. She died of a heart attack caused by sepsis.
Halappanavar’s death sparked nationwide protests, which expanded to Irish embassies in London, Berlin, and Brussels. The law that caused her death was condemned by the United Nations, the Government of India (Halappanavar was born in India and an Indian citizen) and Amnesty International. In the face of this criticism and continued protests, the Irish government created a Citizens’ Assembly, chaired by the Honourable Ms. Justice Mary Laffoy, to study the issue.
Pro-choice activists interpreted the Citizens’ Assembly as a delay tactic—an effort to keep a lid on the controversy until it could die down. These activists instigated a nationwide strike action on March 8, 2017 dubbed “Strike 4 Repea”. Tens of thousands of Irish women and men donned black clothing and marched through Dublin and around the country, demanding a referendum on repeal of the amendment. Throughout this time, an average of ten women travelled from Ireland to England every day to procure an abortion.
In April 2017, the Oireachtas convened a joint committee of both houses to study the issue and prepare recommendations. The Citizens’ Assembly delivered its non-binding recommendations in June 2017, recommending the Eighth Amendment be altered by the Oireachtas. The Joint Committee of the Oireachtas delivered its report in July, recommending a repeal and calling for a referendum.
In late January of this year, the Prime Minister—known as the Taoiseach—Leo Varadkar announced that the government would hold a referendum on a “repeal and enable” arrangement, which would repeal the Eighth Amendment and enact a replacement enabling the government to legalize and regulate abortion. The referendum, he announced, would be scheduled for late May.
An exact date has not been finalized, but the draft wording of the Referendum Bill has been approved by Cabinet. Once it is passed by both houses of the Oireachtas, a date can be set for the referendum. Polls show a clear majority of Irish citizens support the legalization of abortion up to 12 weeks, which gives hope that 2018 may finally be the year in which Ireland confirms that its women enjoy the same human rights as their counterparts in the rest of the civilized world.