Ireland moves towards legalised abortion

Jul 04, 2018

Written By Becky Kells, Editor, AllAboutLaw

The Republic of Ireland's landmark decision to repeal the 8th Amendment has been fraught with emotion. From the international response, the voters who returned home and the arguments on both sides, we take a look at the build-up to this historic referendum.

25 May was a day loaded with the potential to change life in Ireland forever - and that potential was realised. For several hours, the reproductive rights of the country’s women were in the hands of voters, ranging from stringently catholic pro-life voters, to pro-choice expats travelling thousands of miles to vote yes. The groups faced a monumental decision: to repeal the Eighth Amendment to the constitution would mean that abortion would cease to be illegal in Ireland. A yes vote could put an end to the costly and traumatic journeys to abortion services in England made by thousands of Irish women per year, and the illegal taking of abortion pills. It would prevent anyone else from dying like Savita Halappanaver did - due to septic shock, which could well have been prevented and treated if her pregnancy had been aborted. But it also threatened a Catholic heritage that, to many Irish nationals, is a cornerstone of their country and their laws.

In the early hours of Saturday morning, the exit poll results were confirmed: An overwhelming majority of 66.4% voted to repeal the Eighth Amendment; a monumental step in decriminalising abortion in the Republic of Ireland.

The law under the Eighth Amendment

At the moment, abortion is only allowed in Ireland when the pregnant woman’s life is at risk. Abortion is not an option for pregnancies resulting from rape or incest, or where the foetus has been diagnosed with a developmental condition which make it unlikely to survive beyond birth.

This is all enforceable under the Eighth Amendment, which was introduced following a 1983 referendum on the subject - which in turn was borne out of countries elsewhere in the world deciding to relax laws that restricted abortion. Prior to that, abortion was illegal in Ireland under the Offences against the Person Act 1861 - a statute of the UK law which remained in effect.

The Eighth Amendment gives equal weight to the life of the mother, and to that of the unborn foetus - meaning that, by extension, termination of a foetus is illegal in Ireland in most cases. A woman who has an abortion in Ireland could face a 14-year prison term under the Eighth Amendment. If a woman is raped, becomes pregnant, and aborts the pregnancy, she faces a longer prison sentence than her rapist.

It’s well-documented that such a law has not stopped Irish women from having abortions. For those who can afford to travel, abortion in England is an option, albeit one that many describe as traumatic. For those who cannot afford a ferry or a flight, there are unregulated, illegal abortions - via pills or other means - unmistakably dangerous takes on the safe medical procedure offered outside of Ireland.

Ireland’s government has said that, given the result of the vote, we can expect to see new abortion laws drafted. The proposed bill would make abortion legal in all circumstances up until 12 weeks - after this point, legal abortions are possible if the mother’s life is at risk, or if the foetus will not survive.

An ethical dilemma

In 2012, Savita Halappanavar’s request for an abortion was refused. She was having a miscarriage, suffering from infection, and eventually died of sepsis. All the while, doctors continued to monitor the heartbeat of her unborn foetus, unable to consider and offer abortion as a medical solution due to the legal requirement that the foetus be seen on the same level as Halappanavar.

Halappanavar’s death catalysed the latest call for the Eighth Amendment to be repealed, as well as bringing about several law changes, which made abortion legal if the mother’s life is in danger. Yet many argued that this was not enough. Those who had made the often-harrowing journey to Liverpool, London or other UK cities with abortion facilities spoke of completing their round trips just hours after having had an abortion, all the while afraid of medical complications arising on the plane or ferry. Some also spoke of forgoing necessities in order to cover the cost of transport, as well as the procedure itself. Others described the dangerous alternative; taking illegal, unregulated pills to induce abortion at home.

“Can’t stress how important a yes vote is for the working class. I had a friend take pills at home because she couldn’t afford a flight and go to work the next day still miscarrying”, said one twitter user.

“The cost of my travel from #Toronto was less than my travel costs to the UK when I needed to access safe abortion services”, said another.

On the other side, there was the no campaign. Lila Rose, the press secretary of the campaign, said: "I am a proud and ambitious, young Irish woman, and frankly, I am sick and tired of being told that without the right to kill, and without the right to take a human life, I am somehow not equal."

The campaign to #Savethe8th was not entirely based on religious views – however, there was a huge effort from the Catholic church, too. Catholic bishops urged its members to “work actively towards keeping the right to life in the constitution”.

However, many pro-choice campaigners were keen to point out that abortion’s illegal status in Ireland has done very little to prevent women from seeking abortions when they desperately needed them. It was only in 1992 that it became legal for women to travel for abortion, and prior to this, women with unwanted pregnancies relied heavily on illegal abortion methods. Also in place were mother and baby homes – institutions set up and run by the Church, with government funding, to house unmarried pregnant women until they gave birth, and after that, their children. There is currently an investigation underway into these homes – in particular, the high mortality rates of children have been raised and questioned.

It’s important to note that Irish people voted, not just with current experiences in mind, but from a place of deep cultural history surrounding unwanted pregnancy.

The logistics of voting

In a landmark move which sets this referendum apart from other major political events - such as the EU referendum and the US election - media was prevented from reporting details of the two campaigns, and media outlets banned advertising from either side of the campaign. However, it was hard to ignore the commentary on social media. As it became apparent that many Irish nationals living elsewhere could not vote from overseas, ad-hoc attempts from members of the public banded together to purchase last-minute flights for those wishing to vote. People wearing “repeal” jumpers – predominantly young women – were greeted at Dublin airport with cheers. Writing for the Guardian, Gaby Hinsliff said: “For what cause would you fly halfway round the world and back again? Only one that cuts to the heart of who you are, how you seek to live.”

The concentrated efforts of yes supporters worked – and they worked well. Just one constituency - Donegal - voted against repealing the Eighth Amendment, with 51.9% voting no. The SaveThe8th campaign conceded defeat early on Saturday morning, saying “What Irish voters did yesterday is a tragedy of historic proportions. However, a wrong does not become right simply because a majority support it”.

What to expect

The major step towards legal abortion has been taken by Yes voters – but Ireland is not quite there yet. First, Irish parliament must pass a law to repeal the statuary abortion ban. The matter of setting up a regulated system through which women can access safe abortion must be addressed. It is expected that the bill drafted by Prime Minister Leo Varadkar – which will allow abortions up to 12 weeks into a pregnancy, and after if the women’s life is at risk – will pass.

As the Republic of Ireland basks in its liberation from what many see as an archaic element of the constitution, the ripples are being felt elsewhere – in Northern Ireland, where abortion is still illegal. Theresa May has said that Downing Street will not intervene in the devolved region’s law on abortion, and the assembly and administration in Northern Ireland is still not up and running since collapsing in January 2017. As the Republic of Ireland looks towards legal change, women in Northern Ireland may have a longer wait for similarly relaxed abortion laws. PA

Commercial Insights