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Home / Opinion / Law and the 8th

Law and the 8th

The referendum on May 25th is about one simple proposition: whether to remove Article 40.3.3 and replace it with the words ‘Provision may be made by law for the regulation of termination of pregnancy’, or whether to leave the Constitution as it is.

The 8th Amendment states that the unborn has a constitutional right to life, which the state is to defend and vindicate, as far as practicable, with due regard to the right to life of a pregnant person. In practical terms, this has wide-ranging effects.

The fact that the unborn has a constitutional right means cases can be (and are) brought to the High Court to override a pregnant person’s lack of consent to proposed treatment. Furthermore, anyone at all can take a case in an attempt to protect the rights of unborn life. It was through such cases that the Society for the Protection of Unborn Children successfully prevent the distribution of information about abortion services in England until we voted in a right to information after the X Case in 1992.

Under the 8th Amendment, from the moment a woman becomes pregnant the state’s obligation is to try to ensure that both she and the foetus are still alive at the end of it. This may seem unproblematic, but it means that while everyone will try to maximize the heath of the woman, the reality is that even if her health will suffer grave and permanent injury the law compels her to remain pregnant. As far as the Constitution is concerned, the state has done its job if a woman is still alive at the end of a pregnancy, regardless of the state of her health and its implications for her life, her ability to care of her children, and her prospects of future, further motherhood. The 8th Amendment is, thus, about much more than abortion: it is about the care of all pregnant women and the clinical practice of physicians who are caring for them.
However, it is also, of course, about abortion.

The 8th Amendment was proposed in the early 1980s for a very clear reason: to stop abortion being introduced in Ireland. At the time abortion was a crime, and the Supreme Court had said that even though married couples had a right to privacy and thus to plan their families it also explicitly said that this did not extend to a right to abortion. There was no real political campaign seeking abortion; indeed contraception for ‘bona fide family planning purposes’ had just been legalised at the end of the ‘70s.

The 8th Amendment was a preemptive strike: it meant that the Oireachtas could never introduce lawful abortion as long as it remained in place. To remove or change it would require a referendum. Now, in 2018, we are being asked for the first time whether we wish to maintain that constitutional barrier on legislation or whether we want to make change possible.
A ‘yes’ vote is a vote for the latter, but what does that mean?

It simply means the Oireactas would be able to make law regulating access to abortion in situations that go beyond those in which a woman’s life is at risk. Without the 8th Amendment, the Oireachtas would be able to decide on what the appropriate balance is between women’s health and rights in pregnancy, and the protection of unborn life.

Let us be clear: nobody argues that the protection of foetal life is unimportant. Indeed, supporting healthy, happy and consensual pregnancy is in everyone’s interest, and earlier this year the Supreme Court confirmed that even without the 8th Amendment the law can protect foetal life as doing so is in the common good.
Prenatal life is clearly of moral and ethical value. But so too is the life and health of a pregnant person, and her ability to make decisions about what would be appropriate for her and her family. Since 1983 it has not been possible for the Oireachtas to strike a balance between these interests: the 8th Amendment has taken that balancing role away from it, and replaced it with a constitutional provision that aspires only to the maintenance of life.

If the 8th Amendment is repealed then politicians will take on that role of balancing, and the government has already told us how they believe the balance should be struck: by allowing a fair degree of discretion to the pregnant person in the first 12 weeks, and almost none thereafter.

Up to 12 weeks since a woman’s last period (which is about 10 weeks since conception) it will be possible to access abortion without having to justify oneself provided a doctor is satisfied that the pregnancy is within the protected period and the woman has taken a 3-day waiting period.
That 3-day waiting period does not have any medical function. Instead, it is a key part of the balance being struck in early pregnancy, providing time for further reflection, advice, discussion, and, if necessary, counselling to support a woman in her decision-making.

Some people think 12 weeks LMP is too long, but the reality is that many women do not discover their pregnancy until 8 or more weeks in because of irregular menstruation or contraceptive failure. Nobody would want a time limit that is so short that women are forced into a rushed decision. 12 weeks including the 3-day waiting period is the average time-limit across comparable countries in Europe and generally recognised as striking the right balance.

Some might say there should be no protected period at all, but such a period is vital to protect and support women who have experienced rape and sexual violence, most of whom never tell anyone what has happened to them and none of whom should be re-traumatised by having to somehow prove the crime in order to access abortion.

Those who oppose this have not told us how they would provide a more humane and compassionate system for such women, perhaps because they recognise—as the Joint Oireachtas Committee and Citizens Assembly did—that no such system can realistically be designed.

After 12 weeks abortion will be strictly limited. The proposed legislation says it will only be available where two doctors certify that there is a risk to life or a serious risk to health, and abortion is appropriate. One of these doctors will always have to be an obstetrician, ensuring senior oversight of decision-making. If a foetus is viable abortion will be a crime: the pregnancy will have to be ended by early delivery.

Between 12 weeks and viability, then, the government is proposing very limited access to abortion and to strike a balance that allows for foetal life to be ended only where

there are serious health reasons justifying it. This is completely different from the law in England, for example, where abortion is lawful up to 24 weeks if there is a greater risk to a woman’s health from remaining pregnant than there is from ending the pregnancy. Statistically that is almost always the case, but in the Irish law only a serious risk will be enough. Even then abortion is only lawful up to viability, whereas in England abortion is lawful without any term limit where there is a serious risk to the pregnant woman’s health. Abortion ‘on the basis of disability’ will not be lawful in Ireland, whereas it is in England, again without any time limit.

Arguments that compare abortion in England with what is proposed in Ireland fail to acknowledge the very substantial differences between the systems.

The only time that abortion may be possible in later pregnancy will be where a foetus has received a fatal diagnosis and the parents decide that it is best not to continue with the pregnancy. These so-called ‘late term abortions’ are acts of loving parenting by people for whom the right thing to do is to bring the pain and suffering of their child to an end. For others this will not be the right thing to do. The new law will allow Irish doctors to support people in dealing with such a diagnosis and enable us to care for them at home, in Ireland, surrounded by the people who love them, regardless of which decision they make.
Repeal of the 8th Amendment and the introduction of the systems proposed by the Government would strike a fundamentally different balance in Irish law. But this would not be an unduly liberal one. It would be one that recognises the importance of supporting decision making, of letting doctors support their patients, and of protecting foetal life in a balanced and compassionate way.

Without a ‘yes’ vote nothing can change. The 8th will remain in place, and nobody—including rape victims and people with fatal foetal diagnoses—will be able to receive the care they need at home. Instead they will continue to travel, to take abortion pills unsafely and illegally, or to be pregnant when they feel they cannot be.

Article by: Fiona de Londras

Fiona de Londras is Professor of Global Legal Studies in the University of Birmingham. She was born in Limerick and grew up in Tipperary.

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