For as long as Ireland has been an independent state, abortion has been a criminal offence, prohibited until 2013 under the Offences against the Person Act 1861 and since then by the Protection of Life During Pregnancy Act. This has meant that pregnant people in Ireland have had only three options when they did not wish to continue with their pregnancy: to travel abroad to access abortion care, to attempt to self-administer an abortion either through (illegally) imported abortion pills or self-harm, or simply to endure a pregnancy that she does not want.
As it stands, the Constitution makes it effectively impossible to introduce any meaningful liberalisation of abortion law in Ireland. Article 40.3.3, known as the 8th Amendment, recognises the ‘right to life of the unborn’ and pledges the state to protect it with due regard to the ‘equal right to life of the mother’. That provision, introduced by referendum in 1983, just as the women’s movement was beginning to make some inroads in the hyper-patriarchal Ireland of the late 70s and early 80s, was designed to ensure that the Oireachtas (the Irish Parliament) could never liberalise abortion law, unless they first convinced the Irish people to remove the foetal right to life from the Constitution. As the Irish Constitution can only be amended by referendum, neither popular nor political alone would suffice. Instead, both would be needed: one to put the referendum to the People, and one to approve it.
The architects of the 8th Amendment rightly calculated that this would be a steep hurdle to jump. In the intervening 35 years or so, women have suffered, travelled for abortion elsewhere, self-harmed, imported and taken abortion pills. They have even endured involuntary pregnancy in their thousands, and Irish governments have been content to let it be. As Taoiseach Leo Varadkar put it on Monday night, when it comes to abortion our approach has been to ‘export our problems and import our solutions’.
However, now the time for change has come. Thirty-five years of activism has finally brought an Irish government to the point of proposing a referendum to repeal the 8th Amendment, with what appears to have been the unanimous support of the Cabinet. Over the past year and a half, two major processes have been completed that funneled activist agitation into a formal drive towards constitutional change.
The first was a Citizens’ Assembly in which 99 ‘citizens’, and a Supreme Court judge as chair, considered expert evidence and concluded that the Constitution should be changed, following which legislation allowing for lawful abortion should be introduced. The report of this Assembly was then considered by a parliamentary committee – the Joint Oireachtas Committee on the Eighth Amendment of the Constitution – which issued its report last December. It too concluded that a referendum should be held to remove the 8th Amendment, followed by legislative change. Finally, earlier this week, the Cabinet considered these processes, and the recommendation of the Minister for Health, and agreed to put repeal of the 8th Amendment to the people, most likely in May of this year.
In that referendum, the People will be asked to repeal the 8th Amendment and replace it with the 36th Amendment to the Constitution, which will explicitly empower the Oireachtas to make law for the termination of pregnancies. The faultlines for those legislative debates are already being drawn, but they cannot be attended to until the constitutional position is changed. That is what the next four months of campaigning will be about, as Ireland continues its slow but important journey towards a system of reproductive rights for all.
Fiona de Londras is Professor of Global Legal Studies at Birmingham Law School. Máiréad Enright is senior lecturer at Birmingham Law School. Their book, Repealing the 8th: Reforming Irish Abortion Law is published by Policy Press this week and available open access. They are both from Ireland.