As the Government meets the timeframe to hold the proposed abortion referendum on 25 May 2018, Health Minister Simon Harris has outlined to the rest of the Cabinet how legislation will determine the future parameters of terminations in Ireland.
While abortion has been criminalised since the Offences Against the Person Act, 1861 (superseded by the Protection of Life During Pregnancy Act, 2013), the addition of the Eighth Amendment to the Constitution of Ireland in 1983 made specific provision for the unborn.
If enacted, the proposed amendment to Bunreacht na hÉireann will remove subsection 40.3.3 which states: “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.”
It would then be possible to legislate for abortion.
In 2016, a Citizens’ Assembly, established by then Taoiseach Enda Kenny, recommended the removal and replacement of the Eighth Amendment. Then, upon assuming office as Taoiseach the following year, Leo Varadkar committed to holding a referendum in 2018.
Subsequently, a Joint Oireachtas Committee undertook the role of putting the findings of the Citizens’ Assembly into effect and published a Report on the Eighth Amendment of the Constitution in December 2017, reflecting the majority position of its membership. In January, the Government approved the holding of a referendum before the end of May 2018, subject to the passage of a Constitutional Amendment Bill in the Oireachtas.
The Thirty-sixth Amendment of the Constitution Bill, introduced by Minister Harris, completed all Dáil stages in late March with 110 voting in favour, 32 against and a remaining 16 not voting in its second stage. Both Fine Gael and Fianna Fáil had a free vote. Only two Fine Gael TDs voted against the Bill in the second stage, while a further seven (including Simon Coveney and Enda Kenny) failed to vote. Controversially for Micheál Martin, more than half of Fianna Fáil’s TDs who voted (21 out of 41) did so against the Bill, while three did not vote. Meanwhile Sinn Féin Deputy Carol Nolan lost the whip for three months for failing to vote with her party which is in favour of repealing the Eighth Amendment. The Bill is has now passed through the Seanad and the Government has confirmed the date for the referendum.
Most prominently in the political sphere, Health Minister Simon Harris, Taoiseach Leo Varadkar, Fianna Fáil leader Micheál Martin, Sinn Féin’s Mary Lou McDonald and, most recently, Tánaiste Simon Coveney have been vocal in their support to repeal the Eighth Amendment.
The Regulation of Termination of Pregnancy policy paper published by the Department of Health outlines policies which will inform legislation to replace the Protection of Life During Pregnancy Act 2013 should the referendum be passed. Containing a series of 21 policies across 16 policy issues, the paper proposes access to termination of a pregnancy in the case of:
• a risk to the health of a pregnant woman, determined by two medical practitioners, with no distinction made between physical or mental health;
• an emergency risk to health, determined by a single medical practitioner;
• a foetal condition which is likely to lead to death before or shortly after birth, determined by two medical practitioners; or
• no specific indication up to 12 weeks of pregnancy, with a required time lapse between initial medical assessment and termination.
In addition, the policy paper determines:
• in keeping with the Protection of Life During Pregnancy Act, provision would be made for a right to conscientious objection for medical and nursing staff;
• the termination of pregnancy would remain an offence outside of the circumstances contained in the proposal;
• a woman who procures or seeks to procure a termination for herself would not be guilty of an offence;
• in keeping with the Protection of Life During Pregnancy Act, the Minister for Health would continue to publish an annual report of terminations which occurred in the preceding year’; and
• the Protection of Life During Pregnancy Act, 2013 would be repealed in full.
Minister for Health Simon Harris states: “For the first time since 1983 the Irish people are to have their say on the substantive issue of the Eighth Amendment and whether it should be removed from our Constitution. This follows recommendations from the Citizens’ Assembly and the cross-party Oireachtas committee, as well as a Government decision that a referendum be held. That referendum will propose that Article 40.3.3 is deleted in its entirety and a clause inserted that makes it clear that the Oireachtas may legislate to regulate termination of pregnancy.
“It is important to remember that the Referendum must be passed, and the Eighth Amendment repealed, if anything is to change for Irish women. If the people of Ireland do not repeal article 40.3.3 we cannot legislation for fatal foetal abnormality, rape, incest or women’s health. I believe that as people reflect on the current situation in Ireland, where women are forced abroad to have a termination, where women are purchasing abortion pills illegally online and where women in extremely difficult situations are left isolated and neglected, that the Irish people will vote to repeal the Eighth amendment.”