In less than a week we will have voted on whether we should repeal the 8th Amendment. But what actually is the 8th Amendment? What are we voting on? What happens after?
There’s a lot of talk happening now about the referendum, and if you haven’t been following it really closely, you could be finding it all a bit confusing or overwhelming. Hopefully this post will help clear things up and explain things succinctly.
The 8th Amendment to the Constitution was the insertion of Article 40.3.3 (and repealing it would happen to be the 36th Amendment). It was enacted on October 7th, 1983; one month after the referendum voting to insert it.
Here is the text of Article 40.3.3 following the 8th Amendment:
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.
Two further amendments (13th and 14th) added the following two paragraphs to Article 40.3.3:
This subsection shall not limit freedom to travel between the State and another state.
This subsection shall not limit freedom to obtain or make available, in the State, subject to such conditions as may be laid down by law, information relating to services lawfully available in another state.
In summary, the Article states the following:
- The life of the unborn is equal to the life of the mother
- A person will not be prevented from travelling abroad if pregnant
- Information on terminations can be given to pregnant people, under certain conditions
The first paragraph (which is the result of the 8th Amendment) is the main issue. Because the life of the unborn and the pregnant person must be treated equally by law, this then means that the pregnant person cannot obtain an abortion*.
However, because of the wording, it also means that a pregnant person cannot terminate a pregnancy if there’s any potential risk to that pregnancy. For example, among other things, a person cannot obtain some chemotherapy treatments, take Roaccutane (acne medication), or use some stomach ulcer medication if they are pregnant, as these can harm the foetus (and in some cases end the pregnancy). And also because of the Amendment, a person cannot have an abortion and then proceed with medical treatment. In many cases the only option is to travel abroad for a termination, as provided for in the second paragraph of Article 40.3.3.
Because Constitutional law supersedes legislative law, it is not possible to allow abortion in certain circumstances, as any law produced to do so would be deemed unconstitutional.
On May 25th, Irish people will be asked the following:
Do you approve of the proposal to amend the Constitution contained in the undermentioned Bill?
Thirty-sixth Amendment of the Constitution Bill 2018
The 36th Amendment changes the text of Article 40.3.3 (see below).
In the event of a No result
If Ireland votes No, the text of Article 40.3.3 will remain unchanged. No laws will – or can – be introduced to permit the termination of a pregnancy.
In the event of a Yes result
If Ireland votes Yes, the text of Article 40.3.3 will be deleted and replaced with the following:
Provision may be made by law for the regulation of termination of pregnancy.
This change to the Constitution will then allow the country to produce legislation to govern how and when abortion can be obtained.
The proposed legislation
In the case of a Yes result, the government has proposed legislation to permit abortion. This is the result of a lot of discussion, including the work of the Citizens’ Assembly, whose members put forward a number of recommendations regarding abortion law.
Various Heads of Bill in the proposed legislation outline what is permitted. Here’s a summary of what’s in it:
Up to 12 weeks
Abortion is permitted once a medical practitioner deems in good faith that the pregnancy has not passed 12 weeks. There will be a 72 hour waiting period before having the procedure. (Head 7)
Between 12 and 24 weeks
Abortion will be available where two medical practitioners (an obstetrician and another relevant practitioner) have deemed that there is a risk to the life or a risk of serious harm to the health of the pregnant person. (Head 4)
Throughout the full pregnancy
If there is an emergency where there is an immediate risk to the life or a risk of serious harm to the health of the pregnant person, one practitioner may certify that an abortion can be obtained. (Head 5)
Abortion will be available if two medical practitioners deem in good faith that the unborn has no chance of survival outside of the womb (termination for non-fatal abnormalities is not permitted). (Heads 6)
In all other cases beyond 24 weeks, abortion will not be permitted.
Don’t forget to vote
Irish citizens normally resident in Ireland who are on the Electoral Register are eligible to vote. The polling stations open on May 25th at 7am and close at 10pm. When you attend your polling station, make sure to bring some ID so your identity can be confirmed. You may have also received a polling card: while not required to vote, bring it along if you have it.
Campaigning or canvassing is not permitted near polling stations. This means that you should not wear any clothing or badges or any other paraphernalia relating to the referendum campaigns.
It is not permitted to take photos inside the polling station, so save the selfies until before or after, when you’re outside.
Make sure you have a plan in place to vote: When will you do it? What transport do you need, if any? Do you need a babysitter? Think of these things early and don’t get caught out on the day. If you can, consider bringing friends or neighbours who might otherwise have difficulty getting to a station to vote.
[* A Supreme Court ruling in 1992, known as the X Case, meant that abortion can be obtained if the mother’s life is in danger. This was legislated for with the Protection of Life During Pregnancy Act (2013).]