Eighth Amendment of the Constitution of Ireland
Encyclopedia
The Eighth Amendment of the Constitution of Ireland
introduced a constitutional ban on abortion
. It was effected by the Eighth Amendment of the Constitution Act, 1983, which was approved by referendum on 7 September 1983 and signed into law on the 7 October of the same year.
under the Offences against the Person Act 1861
; the Eighth Amendment was introduced to prevent it being legalised at any time in the future. Opponents of abortion sought the amendment partly because of fears that the Irish Supreme Court might infer an implicit right to an abortion in the provisions of the constitution. The court had already ruled, in the 1973 case of McGee v. The Attorney General, that reference in Article 41 to the "imprescriptable rights, antecedent and superior to all positive law" of the family conferred upon spouses a broad right to privacy in marital affairs. It was feared that this right might be extended to include the right to an abortion. There was further concern that the Supreme Court might take its lead from developments in judicial review in other nations, such as the controversial ruling of the United States Supreme Court
in the 1973 case of Roe v. Wade
.This was a reasonable point of view given that the US Supreme Court had decided in favour of abortion in Roe Versus Wade on privacy grounds in January 1973. In December of that same year, the Irish Supreme Court allowed contraception on the same grounds.
The Amendment was urged by an anti-abortion campaign, called the Pro-Life Amendment Campaign (PLAC) under leaders such as Professor William Binchy
, Professor John Bonnar and including such supporters as Senator Des Hanafin
. The Pro-Life Amendment Campaign subsequently became the Pro Life Campaign
. Prior to the 1981 general election, they lobbied all the major Irish political parties at the time (Fianna Fáil
, Fine Gael
and the Labour Party
) to urge the introduction of a Bill to allow the amendment to the constitution to prevent the Irish Supreme Court so interpreting the constitution as giving a right to abortion. The leaders of Fianna Fáil (Charles Haughey
) and Fine Gael (Garret FitzGerald
) both confirmed that if they became taoiseach
(prime minister) they would introduce such a Bill. The leader of the Labour Party refused. Both leaders in the following eighteen months did become Taoiseach, but it was not until late 1982, just before the collapse of Haughey's minority government, that a proposed wording for the amendment was produced.
FitzGerald and Fine Gael initially supported the wording, but, when in government, FitzGerald was advised by his Attorney-General, Peter Sutherland
, that the wording as proposed was dangerously flawed. FitzGerald produced a different, more narrow based wording. Whereas the version prepared by the outgoing Haughey government was 'positive' (it asserted a right that the state would 'vindicate' by its actions), FitzGerald's version was 'negative' (asserting merely that the courts could not interpret the constitution as facilitating abortion, while not preventing parliament from introducing abortion via legislation). Fitzgerald's version contained many legal problems and was opposed by PLAC at the outset. A majority in the Dáil, consisting of all Fianna Fáil deputies and a large number of Fine Gael deputies who voted against their leaders' position, and a surprisingly large number of Labour deputies supported, the measure. The leader of the Labour Party refused to back the amendment but expressed goodwill because at that time, there was strong support for the pro-life position in the Labour Party.
A subsequent referendum on the original wording took place in 1983. It was supported by PLAC, Fianna Fáil, some members of Fine Gael, the Roman Catholic hierarchy, and some Protestant groups, and opposed by various groups under the umbrella name of the Anti-Amendment Campaign (AAC), including Labour senator (and future President of Ireland
) Mary Robinson
, and feminist campaigners. Except for Garret FitzGerald
, few in Fine Gael or Labour campaigned against the referendum. Sinn Féin
and the Workers Party strongly opposed the amendment and members of some Protestant churches campaigned against it. The Amendment passed on 7 September 1983 endorsed by 67% of those who voted.
Opponents of the Eighth Amendment argued in 1983 that its wording was overly vague. Since its adoption, four attempts have been made to clarify the precise meaning of the ban on abortion. There have been two failed attempts (the Twelfth Amendment Bill
in 1992, and the Twenty-fifth Amendment Bill
in 2002) to strengthen the constitutional ban so that it cannot be interpreted as giving to a woman the right to have an abortion if she claims that she will otherwise commit suicide. On the other hand the Thirteenth Amendment
and the Fourteenth Amendment
(both in 1992) were two successful attempts to loosen the ban, by guaranteeing a pregnant woman's right to freedom of travel and to information about abortion services available abroad respectively.
The Eighth Amendment was adopted during the Fine Gael
–Labour Party
coalition government of Garret FitzGerald but was drafted and first suggested by the previous Fianna Fáil
government of Charles Haughey
. The amendment was supported by Fianna Fáil and some of Fine Gael and was generally opposed by the political left. Most of those opposed to the amendment insisted that they were not, nonetheless, in favour of legalising abortion. A number of Catholic bishops spoke out in favour of the amendment, but it was opposed by the other mainstream churches. After an acrimonious referendum campaign, the amendment was passed by 841,233 (67%) votes in favour to 416,136 (33%) against. While the change shown above is that made to the English language text of the constitution, it is the Irish
text that has precedence constitutionally.
of a fourteen year old girl victim of unlawful carnal knowledge by a school friend's father. An earlier High Court order, in vindicating the rights to life, had prevented the girl from getting an abortion abroad. This order was successfully appealed in the Supreme Court in what came to be known as the 'X Case
'. She was given the freedom to travel to receive an abortion abroad, though, in reality, she had in the meantime miscarried. A further series of referendums took place to adapt and clarify the 'Pro-Life Amendment'; among those carried were clauses stating that the Eighth amendment could not limit a person's freedom to travel abroad nor her 'right of information' of legal abortion services in other states (Thirteenth
and Fourteenth
amendments).
The Pro Life Campaign, a successor to PLAC, accused the Supreme Court of misinterpreting both the law and the will of the people. The Government and former Attorney-General Peter Sutherland dismissed such claims, arguing that, as they had claimed in 1983, the 'Pro-Life Amendment' was so poorly worded and ambiguous that it could facilitate either pro-choice or anti-abortion interpretations in different circumstances. The Amendment was not reinterpreted by the Supreme Court on the grounds originally voiced by Peter Sutherland that it would lead to abortion prior to viability or kill women by refusing standard treatments for ectopic pregnancies, cancerous wombs, etc. There was no medical evidence called during the X case hearings.
and have abortions which normally cost between £400 and £1,500. The number of women asking for this service and giving Irish home addresses dropped recently from about 6,600 in 2001 to 4,400 in 2009.
Constitution of Ireland
The Constitution of Ireland is the fundamental law of the Irish state. The constitution falls broadly within the liberal democratic tradition. It establishes an independent state based on a system of representative democracy and guarantees certain fundamental rights, along with a popularly elected...
introduced a constitutional ban on abortion
Abortion
Abortion is defined as the termination of pregnancy by the removal or expulsion from the uterus of a fetus or embryo prior to viability. An abortion can occur spontaneously, in which case it is usually called a miscarriage, or it can be purposely induced...
. It was effected by the Eighth Amendment of the Constitution Act, 1983, which was approved by referendum on 7 September 1983 and signed into law on the 7 October of the same year.
Changes to the text
- Insertion of new Article 40.3.3:
- 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.
Overview
In 1983, abortion was illegal in IrelandRepublic of Ireland
Ireland , described as the Republic of Ireland , is a sovereign state in Europe occupying approximately five-sixths of the island of the same name. Its capital is Dublin. Ireland, which had a population of 4.58 million in 2011, is a constitutional republic governed as a parliamentary democracy,...
under the Offences against the Person Act 1861
Offences Against The Person Act 1861
The Offences against the Person Act 1861 is an Act of the Parliament of the United Kingdom of Great Britain and Ireland. It consolidated provisions related to offences against the person from a number of earlier statutes into a single Act...
; the Eighth Amendment was introduced to prevent it being legalised at any time in the future. Opponents of abortion sought the amendment partly because of fears that the Irish Supreme Court might infer an implicit right to an abortion in the provisions of the constitution. The court had already ruled, in the 1973 case of McGee v. The Attorney General, that reference in Article 41 to the "imprescriptable rights, antecedent and superior to all positive law" of the family conferred upon spouses a broad right to privacy in marital affairs. It was feared that this right might be extended to include the right to an abortion. There was further concern that the Supreme Court might take its lead from developments in judicial review in other nations, such as the controversial ruling of the United States Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
in the 1973 case of Roe v. Wade
Roe v. Wade
Roe v. Wade, , was a controversial landmark decision by the United States Supreme Court on the issue of abortion. The Court decided that a right to privacy under the due process clause in the Fourteenth Amendment to the United States Constitution extends to a woman's decision to have an abortion,...
.This was a reasonable point of view given that the US Supreme Court had decided in favour of abortion in Roe Versus Wade on privacy grounds in January 1973. In December of that same year, the Irish Supreme Court allowed contraception on the same grounds.
The Amendment was urged by an anti-abortion campaign, called the Pro-Life Amendment Campaign (PLAC) under leaders such as Professor William Binchy
William Binchy
William Binchy is Regius Professor of Laws at Trinity College, Dublin Law School, Ireland.Binchy was educated at University College Dublin. He is a Barrister-at-Law and practised at the Irish Bar from 1968-70. He was a Research Counsellor to the Irish Law Reform Commission and special legal advisor...
, Professor John Bonnar and including such supporters as Senator Des Hanafin
Des Hanafin
Desmond A. "Des" Hanafin is a former Irish Fianna Fáil politician. He was a member of Seanad Éireann for over 30 years.-Personal life:Des Hanafin was born in Thurles, County Tipperary in 1930...
. The Pro-Life Amendment Campaign subsequently became the Pro Life Campaign
Pro Life Campaign
After the Eighth Amendment of the Constitution of Ireland was ratified in September 1983, a number of those involved in that campaign, including some lawyers, decided to initiate legal proceedings through SPUC . The targets were two abortion referral agencies in Dublin. The cases started in 1985,...
. Prior to the 1981 general election, they lobbied all the major Irish political parties at the time (Fianna Fáil
Fianna Fáil
Fianna Fáil – The Republican Party , more commonly known as Fianna Fáil is a centrist political party in the Republic of Ireland, founded on 23 March 1926. Fianna Fáil's name is traditionally translated into English as Soldiers of Destiny, although a more accurate rendition would be Warriors of Fál...
, Fine Gael
Fine Gael
Fine Gael is a centre-right to centrist political party in the Republic of Ireland. It is the single largest party in Ireland in the Oireachtas, in local government, and in terms of Members of the European Parliament. The party has a membership of over 35,000...
and the Labour Party
Labour Party (Ireland)
The Labour Party is a social-democratic political party in the Republic of Ireland. The Labour Party was founded in 1912 in Clonmel, County Tipperary, by James Connolly, James Larkin and William X. O'Brien as the political wing of the Irish Trade Union Congress. Unlike the other main Irish...
) to urge the introduction of a Bill to allow the amendment to the constitution to prevent the Irish Supreme Court so interpreting the constitution as giving a right to abortion. The leaders of Fianna Fáil (Charles Haughey
Charles Haughey
Charles James "Charlie" Haughey was Taoiseach of Ireland, serving three terms in office . He was also the fourth leader of Fianna Fáil...
) and Fine Gael (Garret FitzGerald
Garret FitzGerald
Garret FitzGerald was an Irish politician who was twice Taoiseach of Ireland, serving in office from July 1981 to February 1982 and again from December 1982 to March 1987. FitzGerald was elected to Seanad Éireann in 1965 and was subsequently elected to Dáil Éireann as a Fine Gael TD in 1969. He...
) both confirmed that if they became taoiseach
Taoiseach
The Taoiseach is the head of government or prime minister of Ireland. The Taoiseach is appointed by the President upon the nomination of Dáil Éireann, the lower house of the Oireachtas , and must, in order to remain in office, retain the support of a majority in the Dáil.The current Taoiseach is...
(prime minister) they would introduce such a Bill. The leader of the Labour Party refused. Both leaders in the following eighteen months did become Taoiseach, but it was not until late 1982, just before the collapse of Haughey's minority government, that a proposed wording for the amendment was produced.
FitzGerald and Fine Gael initially supported the wording, but, when in government, FitzGerald was advised by his Attorney-General, Peter Sutherland
Peter Sutherland
Peter Denis Sutherland, KCMG is an Irish international businessman and former Attorney General of Ireland, associated with the Fine Gael party . He is a barrister by profession, and is also Senior Counsel at the Irish Bar...
, that the wording as proposed was dangerously flawed. FitzGerald produced a different, more narrow based wording. Whereas the version prepared by the outgoing Haughey government was 'positive' (it asserted a right that the state would 'vindicate' by its actions), FitzGerald's version was 'negative' (asserting merely that the courts could not interpret the constitution as facilitating abortion, while not preventing parliament from introducing abortion via legislation). Fitzgerald's version contained many legal problems and was opposed by PLAC at the outset. A majority in the Dáil, consisting of all Fianna Fáil deputies and a large number of Fine Gael deputies who voted against their leaders' position, and a surprisingly large number of Labour deputies supported, the measure. The leader of the Labour Party refused to back the amendment but expressed goodwill because at that time, there was strong support for the pro-life position in the Labour Party.
A subsequent referendum on the original wording took place in 1983. It was supported by PLAC, Fianna Fáil, some members of Fine Gael, the Roman Catholic hierarchy, and some Protestant groups, and opposed by various groups under the umbrella name of the Anti-Amendment Campaign (AAC), including Labour senator (and future President of Ireland
President of Ireland
The President of Ireland is the head of state of Ireland. The President is usually directly elected by the people for seven years, and can be elected for a maximum of two terms. The presidency is largely a ceremonial office, but the President does exercise certain limited powers with absolute...
) Mary Robinson
Mary Robinson
Mary Therese Winifred Robinson served as the seventh, and first female, President of Ireland from 1990 to 1997, and the United Nations High Commissioner for Human Rights, from 1997 to 2002. She first rose to prominence as an academic, barrister, campaigner and member of the Irish Senate...
, and feminist campaigners. Except for Garret FitzGerald
Garret FitzGerald
Garret FitzGerald was an Irish politician who was twice Taoiseach of Ireland, serving in office from July 1981 to February 1982 and again from December 1982 to March 1987. FitzGerald was elected to Seanad Éireann in 1965 and was subsequently elected to Dáil Éireann as a Fine Gael TD in 1969. He...
, few in Fine Gael or Labour campaigned against the referendum. Sinn Féin
Sinn Féin
Sinn Féin is a left wing, Irish republican political party in Ireland. The name is Irish for "ourselves" or "we ourselves", although it is frequently mistranslated as "ourselves alone". Originating in the Sinn Féin organisation founded in 1905 by Arthur Griffith, it took its current form in 1970...
and the Workers Party strongly opposed the amendment and members of some Protestant churches campaigned against it. The Amendment passed on 7 September 1983 endorsed by 67% of those who voted.
Opponents of the Eighth Amendment argued in 1983 that its wording was overly vague. Since its adoption, four attempts have been made to clarify the precise meaning of the ban on abortion. There have been two failed attempts (the Twelfth Amendment Bill
Twelfth Amendment of the Constitution of Ireland Bill, 1992
The Twelfth Amendment was a failed proposal to amend the Constitution of Ireland, to state that suicide should not be considered a sufficient reason to legally allow an abortion. It was rejected in the 1992 referendum on abortion and the risk of suicide....
in 1992, and the Twenty-fifth Amendment Bill
Twenty-fifth Amendment of the Constitution of Ireland Bill, 2002
The Twenty-fifth Amendment was a failed attempt to amend the Constitution of Ireland to tighten the constitutional ban on abortion. It would have removed the threat of suicide as a grounds for legal abortion in the state, as well as introducing new penalties for anyone performing an abortion...
in 2002) to strengthen the constitutional ban so that it cannot be interpreted as giving to a woman the right to have an abortion if she claims that she will otherwise commit suicide. On the other hand the Thirteenth Amendment
Thirteenth Amendment of the Constitution of Ireland
The Thirteenth Amendment of the Constitution of Ireland specified that the prohibition of abortion would not limit freedom of travel in and out of the state...
and the Fourteenth Amendment
Fourteenth Amendment of the Constitution of Ireland
The Fourteenth Amendment of the Constitution of Ireland specified that the prohibition of abortion would not limit the right to distribute information about abortion services in foreign countries...
(both in 1992) were two successful attempts to loosen the ban, by guaranteeing a pregnant woman's right to freedom of travel and to information about abortion services available abroad respectively.
The Eighth Amendment was adopted during the Fine Gael
Fine Gael
Fine Gael is a centre-right to centrist political party in the Republic of Ireland. It is the single largest party in Ireland in the Oireachtas, in local government, and in terms of Members of the European Parliament. The party has a membership of over 35,000...
–Labour Party
Labour Party (Ireland)
The Labour Party is a social-democratic political party in the Republic of Ireland. The Labour Party was founded in 1912 in Clonmel, County Tipperary, by James Connolly, James Larkin and William X. O'Brien as the political wing of the Irish Trade Union Congress. Unlike the other main Irish...
coalition government of Garret FitzGerald but was drafted and first suggested by the previous Fianna Fáil
Fianna Fáil
Fianna Fáil – The Republican Party , more commonly known as Fianna Fáil is a centrist political party in the Republic of Ireland, founded on 23 March 1926. Fianna Fáil's name is traditionally translated into English as Soldiers of Destiny, although a more accurate rendition would be Warriors of Fál...
government of Charles Haughey
Charles Haughey
Charles James "Charlie" Haughey was Taoiseach of Ireland, serving three terms in office . He was also the fourth leader of Fianna Fáil...
. The amendment was supported by Fianna Fáil and some of Fine Gael and was generally opposed by the political left. Most of those opposed to the amendment insisted that they were not, nonetheless, in favour of legalising abortion. A number of Catholic bishops spoke out in favour of the amendment, but it was opposed by the other mainstream churches. After an acrimonious referendum campaign, the amendment was passed by 841,233 (67%) votes in favour to 416,136 (33%) against. While the change shown above is that made to the English language text of the constitution, it is the Irish
Irish language
Irish , also known as Irish Gaelic, is a Goidelic language of the Indo-European language family, originating in Ireland and historically spoken by the Irish people. Irish is now spoken as a first language by a minority of Irish people, as well as being a second language of a larger proportion of...
text that has precedence constitutionally.
Result
The 'X Case'
However the Amendment ran into serious difficulty in the early 1990s, when the Irish Supreme Court was forced to deal with a crisis over the pregnancyPregnancy
Pregnancy refers to the fertilization and development of one or more offspring, known as a fetus or embryo, in a woman's uterus. In a pregnancy, there can be multiple gestations, as in the case of twins or triplets...
of a fourteen year old girl victim of unlawful carnal knowledge by a school friend's father. An earlier High Court order, in vindicating the rights to life, had prevented the girl from getting an abortion abroad. This order was successfully appealed in the Supreme Court in what came to be known as the 'X Case
Attorney General v. X
Attorney General v. X was a 1992 Irish Supreme Court case which established the right of Irish women to an abortion if a pregnant woman's life was at risk because of pregnancy, including the risk of suicide....
'. She was given the freedom to travel to receive an abortion abroad, though, in reality, she had in the meantime miscarried. A further series of referendums took place to adapt and clarify the 'Pro-Life Amendment'; among those carried were clauses stating that the Eighth amendment could not limit a person's freedom to travel abroad nor her 'right of information' of legal abortion services in other states (Thirteenth
Thirteenth Amendment of the Constitution of Ireland
The Thirteenth Amendment of the Constitution of Ireland specified that the prohibition of abortion would not limit freedom of travel in and out of the state...
and Fourteenth
Fourteenth Amendment of the Constitution of Ireland
The Fourteenth Amendment of the Constitution of Ireland specified that the prohibition of abortion would not limit the right to distribute information about abortion services in foreign countries...
amendments).
The Pro Life Campaign, a successor to PLAC, accused the Supreme Court of misinterpreting both the law and the will of the people. The Government and former Attorney-General Peter Sutherland dismissed such claims, arguing that, as they had claimed in 1983, the 'Pro-Life Amendment' was so poorly worded and ambiguous that it could facilitate either pro-choice or anti-abortion interpretations in different circumstances. The Amendment was not reinterpreted by the Supreme Court on the grounds originally voiced by Peter Sutherland that it would lead to abortion prior to viability or kill women by refusing standard treatments for ectopic pregnancies, cancerous wombs, etc. There was no medical evidence called during the X case hearings.
Status today
Irish opinion polls found that the majority of the electorate was opposed to 'abortion on demand'. However, there is less support for a blanket ban on all abortions in all circumstances. Having experienced a constant flow of referendums on the issue in the 1990s, few people expect the issue to be revisited in the immediate future, so Irish law contains an expression of a belief that the foetus has a right to life, subject to the qualifications imposed in referendums asserting the right of pregnant women to information on abortion and the right to travel, and the legal complexities of the 'X Case' (and a subsequent case, known as the 'C Case'.) The Pro Life Campaign continues to campaign for another amendment to, in its view, return the law to what they said it meant in 1983. Its campaign, however, has little support among the political parties, some of which have come out in favour of the introduction of limited abortion. Two such amendments, which attempted to remove the right to an abortion if the woman claimed to be suicidal, were both rejected by referendum.Abortion by Irish women in Britain
Every year thousands of Irish women avoid the constitutional provision and travel to nearby Great BritainGreat Britain
Great Britain or Britain is an island situated to the northwest of Continental Europe. It is the ninth largest island in the world, and the largest European island, as well as the largest of the British Isles...
and have abortions which normally cost between £400 and £1,500. The number of women asking for this service and giving Irish home addresses dropped recently from about 6,600 in 2001 to 4,400 in 2009.
See also
- Politics of the Republic of IrelandPolitics of the Republic of IrelandIreland is a parliamentary, representative democratic republic and a member state of the European Union. While the head of state is the popularly elected President of Ireland, this is a largely ceremonial position with real political power being vested in the indirectly elected Taoiseach who is...
- History of the Republic of IrelandHistory of the Republic of IrelandThe Irish state originally came into being in 1922 as the Irish Free State, a dominion of the British Commonwealth, having seceded from the United Kingdom under the Anglo-Irish Treaty. It comprises of 26 of Ireland's 32 counties...
- Constitutional amendmentConstitutional amendmentA constitutional amendment is a formal change to the text of the written constitution of a nation or state.Most constitutions require that amendments cannot be enacted unless they have passed a special procedure that is more stringent than that required of ordinary legislation...
- Contraception in the Republic of Ireland
- A. B. C. v. Ireland, ECHR caseA. B. and C. v. IrelandA, B and C v Ireland [2010] is a landmark case of the European Court of Human Rights on the right to privacy under article 8 ECHR. It held there is no right for women to an abortion, although it found that Ireland had violated the Convention by failing to provide an accessible and effective...
Oireachtas debates
| House | 1st stage | 2nd stage | Committee stage | Report stage | Final stage |
|---|---|---|---|---|---|
| Dáil | 2 Nov 1982; 2 Feb 1983 | Feb 9, 15, 17 (1) 17 (2), 23; Mar 2, 8, 24 | Apr 27 (1), 27 (2) | Apr 27 | |
| Seanad | May 4, 5, 10, 11 | May 18, 19 (1), 19 (2) | May 25 (1) 25 (2) 25 (3), 26 | May 26 |
External links
- Eighth Amendment of the Constitution Act, 1983 (Full text at IrishStatuteBook.ie)
- Full text of the Constitution of Ireland (Accurate up to and including the Twenty-seventh Amendment from Department of the Taoiseach)
- The Unabridged Constitution of Ireland (Unofficial variorum edition – accurate only up to Twentieth Amendment)