As the submissions have now gone live, I’m posting mine (made in a personal capacity) here for the record.
This submission is written by Sandra Duffy, a PhD candidate in human rights law working on issues of gender and the law, and a member of Lawyers for Choice. I urge the members of the Citizens’ Assembly to recommend the holding of a referendum to repeal the Eighth Amendment to the Constitution.
Since its inception in 1983, the Eighth Amendment has cast a considerable shadow over the provision of reproductive health services to the women and people of Ireland. The constraints placed on healthcare patients and providers, legal advocates, and lawmakers of this country by the Eighth fall far beyond what international human rights law considers to be admissible. Indeed, the existence of the Eighth leaves Ireland behind only Malta in terms of strictness of abortion regulation in Europe.
The Eighth Amendment was introduced in 1983 by the government of Taoiseach Garrett Fitzgerald. In the words of Michael Noonan, the then Minister for Justice, in the Dáil, the Amendment was proposed as follows:
“The existing statute law on the subject is contained in sections 58 and 59 of the Offences against the Person Act, 1861. The effect of those sections, broadly speaking, is to make it an offence unlawfully to procure an abortion. Until recent years, those provisions were regarded as adequate but developments, mainly in other countries, have taken place which have given rise to concern amongst many people. It has become apparent that judicial decisions concerning abortion can alter fundamentally what had been accepted to be the law, even to the extent of introducing what is virtually a system of abortion on demand.”
(quote from Dáil records, February 1983; emphasis added)
The Eighth Amendment, therefore, was instituted through fears of an activist judiciary – not only our own Supreme Court, as the Minister goes on to say, but also the European Court of Human Rights. This was outright legislative interference with the role of the Courts within the separation of powers. Abortion was already illegal in Ireland; the question of whether or not that legislation should stand, fall, or be modified should not have been reduced to a matter of an election-year promise by a set of politicians to enshrine a law relating to personal healthcare in the foundational document of our state.
In the 33 years since the Eighth was enacted, it has meant that the actions of legislators were necessarily limited to creating laws within its boundaries. However, successive governments have failed in even that limited obligation. Since the case of Attorney General v X was decided in 1992, the option had been open for the Oireachtas to legislate to allow abortion in cases where the life of the woman/pregnant person was at stake. It was to take twenty years and the tragic death of Savita Halappanavar for Enda Kenny’s government to pass the Protection of Life During Pregnancy Act 2013; twenty years of doctors feeling unable to provide necessary care for their patients for fear of legal ramifications; twenty years of people packing bags and sending themselves into temporary exile during what could well be one of the most difficult periods of their life; twenty years of desperate turns to unsafe methods of attempting to procure an abortion where pregnancy was too dangerous or traumatic or disadvantageous to bear. Successive governments, involving most of the main political parties and figures of our time, abdicated from this responsibility and continued to send our women away. This can go on no longer.
The country has moved on in its views on reproductive rights since the passage of the Eighth Amendment in 1983. At the time, the Amendment was carried with 67% of the votes in the referendum. This year, a poll conducted by the Irish Times found that only 18% of the country would favour leaving the regulation of abortion in Ireland as restrictive as it currently is. In 1974, the case of McGee v Attorney General, a case thought of as the foundation of privacy rights in Ireland, stated that
“It is but natural that from time to time the prevailing ideas of these [national] virtues may be conditioned by the passage of time; no interpretation of the Constitution is intended to be final for all time. It is given in the light of prevailing ideas and concepts.”
The Justice was correct. The Constitution belongs to all of us as Irish citizens and residents. The presence of the Eighth Amendment has failed too many of us for too long. In the light of the opinion of our highest court and the opinion of our citizenry, it is only right that after three decades, the people should again be given a chance to speak.
Those of us who campaign for pro-choice lawmaking and healthcare provision do not just speak for ourselves. We speak for the marginalised groups in society who find it most difficult to access reproductive healthcare when they need it. We speak for the socioeconomically disadvantaged, who cannot afford to make the journey to the United Kingdom when they require an abortion, and for the migrants and asylum seekers who may not be able to travel out of Ireland at all. We speak for the transgender persons who may find that a pregnancy is detrimental to their mental and physical health, and for the lesbian and bisexual women who also find themselves sidelined in political debate. We speak for victims of rape and abuse, whose trauma is in almost all cases only compounded by the discovery that their abuse has left them pregnant.
And above all, we speak for the women of Ireland united: those who agree with us, those who disagree with us, those who have yet to voice their opinions. We speak for our mothers who have lived most of their lives without the right to choose; for the daughters of this generation, who cannot be left in the same predicament in which we find ourselves. We speak for each other, because no-one else will.
The question open to the Assembly is not whether you, yourself, would ever want to undergo an abortion, or whether your personal beliefs align with ours. The question you are being asked is whether you think we should be allowed speak our truth to power. We ask you for a referendum. We ask that the country gets to decide its own future: not the government, not the judiciary – the population of this land. We ask that you hear us, and you let us speak.