History of Abortion in Ireland
Historically, abortion was illegal in Ireland under sections 58 and 59 of the Offences against the Person Act 1861, which made it a crime to ‘procure a miscarriage’.
When Ireland became an independent country, Bunreacht na hÉireann (the 1937 Constitution of Ireland), did not mention abortion or the right to life of the unborn. Thus, the 1861 Act stayed in force.
In the 1960s and 1970s, other countries began to legalise abortion.
- In the UK, Parliament passed the Abortion Act 1967 to make abortion legal,
- In the USA in 1974, the Supreme Court legalised the procedure in Roe v Wade.
In light of these international developments, and in order to prevent something similar happening here, the people of Ireland voted in a referendum in 1983 to amend the Constitution by inserting a new article (Article 40.3.3º) which acknowledged the unborn human’s right to life. This was the Eight Amendment to the Constitution, and was passed with 67% voting in favour.
Article 40.3.3º said:
“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.”
Referenda in 1992 & 2002
In 1992, the Irish Supreme Court interpreted Art 40.3.3º as permitting abortion where the mother threatens suicides. This ruling was part of the X case.
In 1992 and 2002 the Irish people voted in referenda on whether or not to amend the Constitution to effectively overturn the X case decision. In both referenda, this change was rejected by the people. In the 2002 vote, it was rejected by the narrowest of margins – 50.4% – 49.6%.
Tragic Death of Savita
In 2013, the Fine Gael-Labour coalition Government introduced and passed the Protection of Life During Pregnancy Act 2013. This legislated for the X case ruling that abortion was a suitable treatment for a woman experiencing suicidal ideation.
The legislation was introduced following the exploitation of the tragic death of Savita Halappanavar in 2012, who died whilst miscarrying her unborn child. Despite thee independent medical reports determining that her death was from a mis-managed sepsis case, pro-choice campaigners and politicians used her death to legalise abortion in Ireland.
Following a number of years of public debate, and a Citizens’ Assembly recommendation in 2017, the Irish people voted in May 2018 to repeal the 8th Amendment from the Constitution and replace it with the following provision:
“Provision may be made by law for the regulation of termination of pregnancy.”
This enabled the Fine Gael led Government to introduce wide ranging abortion legislation, the Health (Regulation of Termination of Pregnancy) Act 2018. This was passed by the Dáil and Seanad in 2018, and the provision of abortion in Irish maternity hospitals and GP surgeries commended on the 1st January 2019.
Motivation behind the Eighth Amendment
In 1965, the US Supreme Court ruled that there was a right to privacy in the US Constitution.
In 1973, the US Supreme Court ruled on the basis of this privacy right that a woman had a right to abortion. But it also ruled that unborn children are not persons protected under the 14th Amendment so they have no protection against abortion, even up to birth, in some cases.
In 1974, the Irish Supreme Court followed the US Supreme Court and identified a privacy right in the Irish Constitution, citing the 1965 US Supreme Court ruling.
It later became clear that under the Irish Constitution as it was then, the right to life of unborn babies was not protected: only citizens had that protection.
It also became clear that there was great reluctance on the part of the European Commission of Human Rights to hold that unborn babies were protected under the European Convention on Human Rights.
In view of these decisions and trends, an amendment to the Constitution was needed to give unborn babies constitutional protection for their right to life against abortion.
In 1983, Irish people voted overwhelmingly to enshrine Article 40.3.3 (Eighth Amendment) into the Constitution. It protected the right to life of both mother and baby in pregnancy and remained in the Constitution until 2018, when the Irish voted to repeal the amendment, thereby clearing the way for wide-ranging abortion in Ireland.
International Pressure to Abandon Constitutional Protection for Unborn Babies
Human rights in the Irish Constitution were based on the equal inherent worth and dignity of every human being – no human being has a lesser right to life than another.
Some of the international committees monitoring international treaties, however, do not accept this principle of universal human equality. Some members of these committees vociferously back the “right to choose”.
They do not accept that unborn babies have an inherent right to life and they continued to badger Ireland in the name of human rights into bringing our laws and Constitution into line with their position.
International human rights law, however, is not completely silent on the issue of unborn babies. The UN Convention on the Rights of the Child states that the child is entitled to appropriate legal protection “before as well as after birth”.
Unfortunately, there are many instances where unborn babies don’t receive appropriate legal protection. One need only think of the practices of gender-selective abortion, abortion on grounds of disability, partial-birth abortion, and infanticide after failed abortions.
The UN Human Rights Committee (UNHRC) should be preoccupied with addressing these horrifying human rights violations instead of pushing for widespread abortion like they did in the run up to the abortion referendum here in 2018.