Post-Eighth Amendment Irish Abortion Politics

 Post-Eighth Amendment Irish Abortion Politics

This thesis has illustrated the exceptional nature of the conflict and policy making process that has developed in Irish politics and society since the insertion into the Irish Constitution in 1983 of the Eighth or Pro-Life Amendment or Article 40.3.3. The amendment obliges the Irish state to guarantee and vindicate the right to life of the unborn with ‘due regard, as far as practicable, for the right to life of the mother.’ This amendment, along with two further amendments – the Thirteenth and Fourteenth passed by referendum in 1992, two court cases – the X-case of 1992 and the C-case of 1997[1] -, the Offences Against the Person Act, 1861 Sections 58 and 59, the Regulation of Information Act 1995 and Protocol No.17 to the Maastricht Treaty on European Union, governs abortion law in the Republic of Ireland.

The Irish abortion conflict has followed a unique trajectory in the following ways. The issue was initially politicised by the demands of an anti-abortion lobby and policy became progressively more conservative. In all other liberal democracies the issue was placed on the agenda by groups seeking to liberalise existing restrictive laws and public policy eventually travelled in that direction. The Irish abortion debate was discursively constructed around the strategy of PLAC which emerged as a counter-movement to the Irish women’s movement in the early 1980s. It used the peculiarly emotive issue of abortion as a vehicle to reestablish the hegemony of “traditional” values and to challenge the claims of Irish feminism. The means by which it did this was a campaign for an anti-abortion amendment to the Irish Constitution from which flowed the curbs on the activities of the women’s information networks, who in actuality were the real targets of the pro-life movement’s strategy.[2] Anti-abortion groups were able to score such spectacular successes because there was little significant Irish feminist praxis on abortion and because political elites did not seriously engage with the moral and legal complexities of writing a ban on abortion into the Constitution. Uniquely also, the pro-life movement was able to set the terms of the debate because there was such a widely shared anti-abortion consensus in Irish society that the issue was effectively depoliticised by the time PLAC launched its pre-emptive strike.

It is thus argued that Irish abortion politics have been exceptional, in the first instance, in the absence of a just and stable solution to the difficulties that have arisen out of seemingly contradictory interpretations to the Eighth Amendment or Article 40.3.3. In particular, the thesis has critiqued the failure of Irish politicians to design a legislative framework which would implement the judgement of the Supreme Court in the landmark X-case in 1992, which found induced abortion to be legally permissible in certain circumstances.

The second aspect of Irish exceptionalism relates to the initial politicisation of the abortion issue by an initiative taken by the conservative Catholic pressure group, the Pro-Life Amendment Campaign (PLAC). In every other liberal democracy in this century the abortion issue has been politicised by an abortion rights lobby and existing restrictive legislation progressively liberalised. In the Republic of Ireland, by contrast, the issue was politicised by the demands from an anti-abortion lobby for a constitutional amendment which would pre-empt any attempt to repeal the Offences Against the Person Act. As a result the Irish abortion regime was tightened not just by the resultant “pro-life” constitutional amendment but by a succession of judgements in the “Open Door”, “Well Woman”, “Grogan” and “Coogan” cases. These judgements effectively prohibited pregnancy counselling agencies from informing clients about the identity and location of abortion clinics outside Irish jurisdiction and from making referral arrangements with these clinics on the grounds that these activities constituted ‘assistance in the destruction of the life of the unborn’. This judicial process culminated in the spectacle of a 14-year-old girl with suicidal thoughts being ordered to be detained in Ireland for the duration of her pregnancy. This absolutist trend in Irish jurisprudence whereby the right to life of the unborn virtually trumped fundamental competing rights such the right to impart and receive information and the right to travel was modified by the Supreme Court in its judgement in the “X”-case. This found that abortion was legal in Ireland where the life of the mother was at risk from her own “threats of self-destruction”.

The long-term consequences of PLAC’s strategy in seeking to constitutionalise the right to life of the unborn and of the acquiescence of Irel