by Fiona De Londras, Professor of Global Legal Studies, Deputy Head of Birmingham Law School
The Irish Constitution can only be formally amended by referendum (Art. 46). Unlike in some jurisdictions, however, there is no formal mechanism for popular initiative: ultimately only the Oireachtas [Parliament] can propose a referendum, and the exact wording of the proposition put to the People ordinarily comes from the Attorney General. What the current developments in respect of the 8th Amendment and its potential repeal show, however, is that constitutional change in Ireland is not necessarily a technocratic, elite discourse: it can be, and in this case is being, driven by a social demand for change.
The Status Quo
Abortion has been a criminal offence since the foundation of the modern Irish state. As in many other countries, the Offences against the Person Act 1861 operated at the time of independence, and remained in force thereafter. However, as the women’s movement began to make some inroads into Ireland’s highly conservative repression of sexual freedom in the late 1970s (through, for example, the legalization of contraception following years of what Cloatre and Enright have documented as a form of transformative illegality through the unlawful distribution of condoms and the Supreme Court case of McGee v Attorney General) a powerful movement of conservative Catholic anti-abortion activists proposed the introduction of a constitutional bar on abortion.
A group termed the Pro Life Amendment Campaign (PLAC) successfully agitated for a referendum to insert a ‘pro life’ provision into the Constitution. Taking advantage of “a potent mix of political turbulence, religious domination and conservative lobbying”, the successful insertion of this provision—the 8th Amendment to the Constitution—was “at once a pre-emptive strike against any further liberation for women, and a backlash against the limited liberation that had already occurred” (de Londras & Enright, 2018, p.p. 3-4). The 8th Amendment provides:
The State acknowledges the right to life of the unborn and, with due regard to the equal rights 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.
Conservatively driven litigation and a series of subsequent referenda (on which I provider a fuller account here) have meant that the practical effect of this is that lawful abortion is available only where a pregnant person* is at ‘real and substantial’ risk of dying without it and the foetus is not yet viable. Even then, one must be deemed to qualify for lawful abortion care under the processes mandated by the Protection of Life During Pregnancy Act 2013 and its Guidelines. Otherwise, pregnant people must remain pregnant (regardless of the severity of the risk a pregnancy may pose to one’s health) or access abortion in some other way. Every year, thousands of women in Ireland travel abroad to access lawful abortions (primarily in England) and, with the advent of telemedicine, import medical abortion pills and induce abortions at home: a serious criminal offence.
While travelling to access abortion care is lawful, it is expensive and difficult especially for pregnant people who live their reproductive lives often on the margins of the state; women without appropriate travel documentation, poor women, girls, women with disabilities, women in direct provision, Traveller women, and others especially suffer the hardships of abortion travel and its practical inaccessibility for many. Abortion travel is, thus, both a daily reality of reproductive life in Ireland and a source of acute injustice, and yet it is structurally tolerated by the Constitution, which since 1992 has made it clear that one cannot be enjoined from engaging in such travel (Article 40.3.3 as amended by the 13th Amendment to the Constitution).
Injustice and the Drive for Constitutional Change
This injustice, and the inadequacy of the 8th Amendment’s pitting of a pregnant person and foetus in an adversarial relationship with one another is at the heart of a decades-long call for constitutional change. Even in 1983, when the amendment was being discussed and the referendum proposing it put to the People, anti-amendment campaigners argued against constitutionalising abortion, rightly pointing out that it would impose intolerable hardship on women and legal uncertainty on medics, and be extremely difficult to reverse in future. However, at that time a healthy majority of the electorate voted in favour of the 8th Amendment, and politics has largely treated the matter as closed since; constitutionally settled and no longer politically relevant.
The activist objection to the 8th Amendment, however, persisted, spiking around cases that illustrated the sharpest impacts of the 8th such as the X Case, Ms D, Ms C, the death of Savita Halappanavar, and the case of A, B & C v Ireland. That latter case—in which the European Court of Human Rights found that while Ireland could restrict lawful abortion to the extent that the 8th Amendment does, it was obliged to ensure that the narrow constitutional right to access abortion (where the pregnant person’s life is at risk) must be practically exercisable—led to an expert report making recommendations for the regulation of abortion by legislation. Around the time that this report was published, the news that Savita Halappanavar had died of sepsis during a prolonged miscarriage during which she had asked for, but been denied, abortion care was published in a leading Irish newspaper and decades of activism, stigma, and the quiet but often isolating self-management of reproductive life began to coalesce into a strong, large, social movement for REPEAL.
Since 2013 that movement has only grown, bringing together everything from marches for choice, to artistic interventions (e.g. Tremble Tremble, We Face This Land), first person narratives (e.g. x-ile, everyday stories), merchandise (e.g. REPEAL sweaters), street art (e.g. the Maser mural), organised diaspora movements (e.g. the London-Irish Abortion Rights Campaign), an enormous range of groups ‘for choice’ from lawyers to midwives, farmers to ‘lads’, and groups in practically every county in the country all working together as a powerful Coalition to Repeal the 8th.
This social movement, and its fundamental demand for ‘repeal’ and the de-constitutionalisation of abortion has set the political conditions in which abortion can no longer be treated as ‘settled’ within Irish political discourse.
Although it was not an enormous part of the 2016 General Election campaign, all political parties apart from Fianna Fáil found themselves having to deal with the 8th Amendment in their manifestos, promising everything from repeal and the introduction of lawful abortion in some or all circumstances (Labour, Sinn Féin, Anti-Austerity Alliance, People Before Profit, Green Party), to the establishment of some form of deliberative assembly to discuss potential constitutional and/or legislative change (Fine Gael, Social Democrats; such a proposal was endorsed by Fianna Fail leader Micheál Martin in a radio interview, although not in the FF manifesto).
Following an indecisive election a Fine Gael-led government was formed, with a small number independent (i.e. non-party) deputies joining Cabinet in ministerial roles, including long-time social justice advocate (and one of the high-profile leaders of the successful campaign for marriage equality that culminated in a constitutional referendum in May 2015) Katherine Zappone TD, who had campaigned on a social justice platform that included repeal of the 8th Amendment. The Programme for Partnership Government thus included a commitment to establish a ‘Citizens’ Assembly’ to discuss, inter alia, the future of the 8th Amendment.
When established, the Citizens’ Assembly comprised 99 people selected from the electoral register, chaired by Supreme Court judge Ms Justice Mary Laffoy. In spite of some reservations (including mine and those of many key pro-choice politicians) that the Assembly may work as a stalling mechanism to avoid meaningful constitutional change, some—including Zappone—insisted on its potential utility. So it proved to be.
Following months of deliberations and evidence and the submission by the public of over 13,000 submissions, the Assembly made a series of remarkable recommendations for change. These included not only the repeal of the 8th Amendment and empowerment of the Oireachtas to legislate for abortion, but also strikingly liberal recommendations as to the availability of lawful abortion care following repeal.
Under the terms of reference for the establishment of the Citizens’ Assembly, its Report was then to be delivered to the Oireachtas and considered by a parliamentary committee. Although not mandated by the Assembly’s terms of reference, the Oireachtas established a stand alone, ad hoc Joint Oireachtas Committee on the 8th Amendment to consider the Citizens’ Assembly Report. This was the extent of its mandate: it was not empowered to reconsider the principled question of constitutional change per se but simply to consider the recommendations of the Citizens’ Assembly. Over almost four months, the Committee heard from a range of experts in reproductive rights, abortion law (including comparative law), medicine, public health and constitutional and international human rights law and, ultimately, endorsed almost all of the Assembly’s recommendations proposing constitutional change (albeit in a technically different form to that recommended by the Assembly) and extensive, but less liberal, abortion law following such change.
Notwithstanding some persistent claims from anti-choice campaigners who desire the maintenance (or further restriction) of the constitutional status quo that the Committee and the Citizens’ Assembly were biased and flawed processes, the reality is that in both cases the processes comprised consideration of a huge amount of expert evidence and (inadequate amounts of) first person testimony, which led their members to the same conclusion that activists had long argued: that the law must be changed in order to respond to the realities of life.
Political support for repeal is now evident not only in parties that already supported constitutional change and among long-time pro-choice politicians, but also vocally by the leaders of the three largest parties in the state (Fine Gael, Fianna Fail, and Sinn Fein). At the end of January the Taoiseach—flanked by Minister for Health, Simon Harris, and Minister for Children and Young People, Katherine Zappone—announced that Cabinet would propose a referendum to the Oireachtas; a proposition that commanded the unanimous support of all members of Cabinet.
This is a truly remarkable state of affairs, merely two years after the 2016 election. However, it would be wrong to attribute it to the political system structuring constitutional change. Instead, the position in which we now find ourselves is clearly and unequivocally the product of decades of activist agitation and its more recent transformation into a significant social movement. It is vital that we bear this in mind, as the next—formal, and more technocratic—stage of making constitutional change begins with the predicted publication of the referendum bill, which is expected to culminate in a vote on the Bill on March 8th, International Women’s Day.
The Next Stage
That Bill will almost certainly propose the deletion of Article 40.3.3 in its entirety and the insertion of a new enabling clause providing that ‘Provision may be made by law for the termination of pregnancies’. The proposal of replacement text rather than a simple repeal (i.e. deletion without replacement) of Article 40.3.3 stems from a technical concern with the possibility of ‘the unborn’ holding constitutional rights beyond the right to life stemming from the 8th Amendment, and the sense (arguably informed by a fetishistic approach to legal certainty) that an express enabling provision of this kind would somewhat protect post-repeal legislation from being struck down as unconstitutional.
While, as Máiréad Enright and I have argued this is, in essence, repeal in substance if not in form, it also reflects what can happen to activist demands from justice when put through a political process and translated into legal propositions. There will be plenty more of this in the time to come: we can and should expect technical and technocratic arguments to emerge about the meaning and implication of the proposed text in both the English and Irish languages, debates about the form and substance of post-repeal abortion legislation, the operation of the legislation and nature of its implementation in both law and medicine, and so on. However, at the core of all of this is, and must remain, the decades of feminist activism that underpins and has brought us to this point at which constitutional change may be endorsed by the People in a referendum this May, to be followed by a new abortion law.
Following the 2015 marriage equality referendum there was a tendency, largely among political scientists, to attribute the success of that referendum campaign to the Constitutional Convention that preceded it. However, in that campaign what worked for the electorate was the activist-led argument of justice, love, care, and empathy. The Constitutional Convention was not without its value; it was educative, deliberative, and made it almost impossible for politicians to ignore the call for change, but it neither constituted nor supplanted the social movement for marriage equality. The Citizens’ Assembly and subsequent Joint Oireachtas Committee appear so far to have played a similar role in the movement for repeal, but it would be an error to mistake the current momentum as a benevolent political gift. It is an opportunity hard won by activism, by social movement, and by capitalising on political opportunity.
The Irish Constitution might not have a formal process for the popular initiation of a referendum, but what the 2018 referendum shows—as did the referendum on the 34th amendment (marriage equality) and, indeed, on the 8th amendment itself—is that Irish constitutional change can be, and sometimes is, popularly driven.