Eighth Amendment of the Constitution of Ireland

The Eighth Amendment of the Constitution of Ireland introduced the controversial 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. It is often called the Irish Pro-Life Amendment.

Changes to the text
Introduction 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 the Republic of Ireland; 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 1974 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.

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. 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' (ie, it asserted a right that the State would 'vindicate' by its actions), FitzGerald's version was 'negative' (i.e., merely asserting that the courts could not interpret the constitution as facilitating abortion, while not preventing parliament from introducing abortion via legislation). Though FitzGerald's version was closer to the version originally demanded by PLAC, a majority in Dáil Éireann (consisting of the opposition plus some government members) voted it down, in preference for the original wording.

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, women's rights campaigners, FitzGerald, his ministers and most of his party, the Labour Party, Sinn Féin the Workers Party and most though not all protestant churches. The electorate voted overwhelmingly to add the amendment to Constitution of Ireland.

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 mother the right to have an abortion if there is risk 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 mother'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 in fact drafted and first suggested by the previous Fianna Fáil government of Charles Haughey. The amendment was supported by Fianna Fáil, divided 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 (64%) votes in favour to 416,136 (33%) against. While the change shown above is that made to the English language text of the constitution, constitutionally it is the Irish text that has precedence.

The 'X Case'
However the Amendment ran into seriously difficulty in the early 1990s when the Irish Supreme Court was forced to deal with a crisis over the pregnancy of a fourteen year old statutory rape victim. 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).

Other proposed amendments, which were put to the electorate by various governments to 'roll back' (reverse) the 'X Case' judgement and restrict a woman's right to travel abroad for an abortion, were rejected by the electorate in a series of referendums. The 'Pro-Life Campaign', a successor to PLAC, accused the Supreme Court of mis-interpreting 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- or heavily anti-abortion interpretations in different circumstances.

Status today
According to Irish opinion polls, the majority of the electorate are 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, meaning that Irish law currently contains an expression of a belief that the 'unborn' 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. Their campaign, however, has little support among the political parties, the smaller of whom have come out in favour of the introduction of limited abortion.