Fact Check: Is repeal necessary for abortions in fatal foetal cases?

Question:

Is removing the Eighth Amendment necessary before legislation can be introduced to allow abortions in cases of fatal foetal abnormality (FFA)?

Who is making the claim?

The claim is made by the Together for Yes campaign group, which is advocating for a Yes vote in the forthcoming referendum.

The group argues that removing the amendment from the Constitution is the only way “to protect couples who receive a devastating diagnosis of fatal foetal anomaly”. The electorate will vote on whether or not to keep the amendment on May 25th.

Upon what are they basing their claims?

A spokeswoman for Together For Yes said that while the amendment (Article 40.3.3) remains in place, legal access to abortion in any circumstance, other than where there is “real and substantial risk” to the life of the pregnant woman, cannot be permitted.

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“The Attorney General has twice ruled that it would not be possible to introduce such legislation without amending the Constitution, because of the language in the Eighth Amendment,” she said.

"This analysis was based on the interpretation of the word 'unborn' in the Constitution by the Supreme Court in the 2010 case of Roche v Roche (the 'frozen embryo' case).

“On that occasion, (Ms Justice Susan) Denham stated with regard to the wording of the Eighth Amendment: ‘The beginning of “life” is not the protected term, it is the unborn, the life capable of being born, which is protected. The capacity to be born, or birth, defines the right protected.’

"More recently, this analysis was confirmed by the Supreme Court in the March 2018 decision in the IRM case, in which the court held that the Eighth Amendment guarantees the unborn only 'the right to life, or in other words, the right to be born . . . '

“Importantly, however, the court also confirmed that, quite apart from the provisions of the Eighth Amendment, ‘ . . . the State is entitled to take account of the respect which is due to human life as a factor which may be taken into account as an aspect of the common good in legislating.’ Even if the amendment is repealed, any legislation introduced to provide for abortion would thus have to take account of this statement.

“So it is beyond question that repeal of the amendment is necessary before we may legislate for terminations of pregnancy on grounds of fatal foetal abnormality – or on grounds of rape, or even serious risk to the health of a pregnant woman.”

The analysis:

In 2013, several TDs sought to introduce an amendment to the Protection of Life during Pregnancy Act to allow for terminations if there is a diagnosis of a fatal foetal abnormality.

The then minister for health, James Reilly, told the Dáil he could not include the issue of fatal foetal abnormalities on the advice of the then attorney general. In 2016, then minister for health Simon Harris opposed a Bill by Independents4Change TDs Clare Daly and Mick Wallace on the same basis. (read his Dáil speech here)

The Attorney General has advised twice that if a foetus is capable of being born alive and surviving even for a very short period, such a foetus is protected by the amendment.

The Attorney General does not “rule” on anything, rather the courts rule. Instead, the Attorney General offers the Government legal advice. However, it was the unconditional advice of the Attorney General on two occasions that once the foetus could be born alive, the Eighth Amendment’s protection was triggered, and therefore abortion could not be permitted in the case of a fatal foetal abnormality.

A court, of course, could decide differently. However, operating under the current advice to Government, a Bill that provides for abortions in cases of fatal foetal abnormality would not be Constitutional.

Article 40.3.3 , as interpreted by the Supreme Court in Attorney General v X in 1992, ruled that terminations were lawful when there is a real and substantial risk to the life, as distinct from the health, of the mother and that this real and substantial risk could only be averted by the termination of her pregnancy.

When a foetus has a condition that is incompatible with life, but is capable of being born alive and surviving even for a very short period, it appears it is protected by the Eighth Amendment.

Our verdict:

The claim is true.