Noel Whelan: Bid to fix abortion law in Constitution did not work

We are not debating the merits of the Eighth Amendment in the abstract, this time around. It has been in the Constitution for more than 35 years. We know how it played out – and it wasn’t the way its proponents argued and hoped it would.

In 1983, those who opposed the amendment warned that its terms were vague and uncertain.

In the years since, our superior courts have spent many days hearing arguments about the levels of care permissible. Volumes of law reports have been filled with judicial pronouncements on the meaning of “with due regard to”, “as far as is practicable” and “unborn”. A third of the alphabet has been deployed as pseudonyms for the names of women whose crisis pregnancies became the subject of litigation.

When in 1983 lawyers opposing the Eighth Amendment warned that injunctions would be taken to stop young women travelling to have abortions abroad, they were accused of scare-mongering. In 1992, that was precisely what happened in the X case. It took a constitutional amendment to remove the risk of it happening again.

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Another constitutional amendment was required to stop injunctions being taken against any publication which contained details of abortion services abroad.

Enshrine hypocrisy

The effect of both the “travel” and “information” amendments was to enshrine hypocrisy into our basic law. Now a woman may travel and know where to go – but what she travels to do remains a crime under our laws. The assistance a woman in such circumstances requires most – namely, access to her own doctors and full medical records – is still constitutionally prohibited by the Eighth Amendment.

Many hundreds of abortions are now also happening in Irish homes. Women are importing the abortion pill and taking it without medical care and supervision.

Weeks of Dáil debates, several all-party committees and two unsuccessful referenda (in 1992 and 2002) have been wasted in efforts to restate the constitutional provision. For decades, much political energy was expended in avoiding legislating within the confines of the Eighth Amendment.

Surely it’s time to recognise that the experiment of fixing our abortion law in a couple of sentences in the Constitution hasn’t worked. Both the recent Constitutional Convention and the Oireachtas Committee on the Eighth Amendment found that rewording the constitutional provision would compound confusion in the modern legal and medical environment. The No side has not come up with workable constitutional alternatives either, and content themselves with a mantra that what’s there must stay.

If the purpose of the amendment in 1983 was to stop Irish abortions, that clearly hasn’t worked. Irish abortions are happening. A small number happen each year in hospitals in Ireland to protect the lives of women, including circumstances where a mother’s life is at risk from suicide.

Tens of thousands of Irish abortions have happened in England since the amendment was passed. All the Eighth Amendment has done is to force isolation and travel on thousands of pregnant Irish women.

Many hundreds of abortions are now also happening in Irish homes. Women are importing the abortion pill and taking it without medical care and supervision. The No campaigners say we should insist on their criminalisation for taking unregulated medication, but the effect of so doing would be to push them into the category of those forced to travel or forced to carry to full term.

Their lived experience working in a medical and legal environment shaped by the Eighth Amendment has turned them into activists

In 1983, the then attorney-general Peter Sutherland warned that the Eighth Amendment would force doctors to question whether they could treat a mother’s illness which might otherwise shorten her life expectancy, if this were to threaten the life of the foetus. It would, he warned “inhibit [doctors] in making decisions as to whether treatment should be given in a particular case”.

Striking feature

His predictions came to pass. Indeed, a striking feature of the current referendum campaign has been the number of obstetricians and gynaecologists working at the frontline, treating pregnancies with risk, who have felt the need to speak out.

Their lived experience working in a medical and legal environment shaped by the Eighth Amendment has turned them into activists. The Eighth Amendment inserts legal uncertainty into their treatment rooms and impacts their capacity to care for women. More than most, these experts realise that every pregnancy is different and that a decision to end a pregnancy is deeply personal and always carefully and painfully weighed.

Yet some of the same lawyers who urged it upon us in 1983 are still trying to tell us that it won’t have the legal consequences it has already had. The newer generation of Eighth Amendment enthusiasts who join them choose to ignore 35 years of legal quagmire.

We need to delete the Eighth Amendment. It is the only way to create the constitutional space for the Oireachtas to make better abortion law.

If the law they write is subsequently overtaken by medical change or judicial interpretation, then they will be free to rewrite and improve it. Leaving the provision of our abortion law to be determined by a majority of our elected politicians makes most sense in our representative democracy.

We tried the alternative. It didn’t work.