Irish In Britain

Referendum to repeal the Eighth Amendment from the Irish Constitution (Bunreacht na hÉireann)

Information briefing from LIARC

On the 25 May 2018, Irish citizens who normally reside within the state (or who have been out of the state for less than 18 months and intend to return) will be asked to vote in a referendum to remove the Eighth Amendment (Article 40.3.3) from the Irish Constitution.

• If the referendum is passed (Yes vote), the Eighth Amendment will be removed from the Constitution and replaced with new wording which says ‘Provision may be made by law for the regulation of termination of pregnancies’
• If the referendum is not passed (No vote), the Eighth Amendment will be retained and it will not be possible for the Irish government to change the current situation in Ireland.

The Government published a policy paper on 8 March which outlines how it intends to legislate, in the case of a Yes vote.  This policy paper describes 21 principles upon which future legislation would be based, which include:

• access to abortion during early pregnancy up to 12 week for a woman’s own personal reasons (“without specific indication”) as part of a medical practitioner–led service
• if there is a diagnosis of a fatal foetal condition
• if there is a risk to the mental or physical health of the woman. 

The legislation would also remove the criminalisation of abortion for women seeking abortions. Doctors who perform abortions outside of the law would still be liable to prosecution.

What is the Eighth Amendment?

The Eighth Amendment equates the life of a pregnant woman with that of an embryo or foetus:

“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.”

The referendum to insert the Eighth Amendment was passed on 7 September 1983 with the support of 67 percent of those who voted.  The 53.67 percent turnout means that the Eighth Amendment was supported by 36 percent of all registered Irish voters in 1983.

In 1992, the 13th and 14th Amendments were also added to the Irish Constitution. These guarantee that people are free to travel out of Ireland to access abortion services in other countries (13th Amendment) and to access information about abortion services in other countries (14th Amendment).

Under the National Consent Policy of the Health Service Executive in Ireland, the Eighth Amendment limits the rights of pregnant women in Ireland to accept or refuse medical treatment:

 “because of the Constitutional provisions on the right to life of the unborn [Article 40.3.3] there is significant legal uncertainty regarding a pregnant woman’s right to [consent]”.

What process led to the 2018 Referendum to repeal the Eighth Amendment?

Prior to the calling of a referendum, a Citizens’ Assembly was established in 2016 by the Irish Government.

• Over the course of several months, 99 randomly chosen Irish citizens heard legal, medical and personal testimony from experts and civil society groups about the Eighth Amendment
• You can see all of the materials presented to the Citizens’ Assembly and watch the meetings here

• The Citizens’ Assembly voted to remove the Eighth Amendment and change the current system in Ireland to allow Irish women and girls access to abortion under a range of circumstances.

• The final report of the Citizens’ Assembly is here

A Joint Oireachtas Committee on the Eighth Amendment of the Constitution was then established on 4 April 2017 to review the recommendations of the Citizens’ Assembly.

• You can see all of the materials presented to the Joint Oireachtas Committee here and the watch the meetings here
• The Committee concluded that the Eighth Amendment was unfit for purpose and that constitutional reform was necessary. They therefore voted in favour of a referendum on the matter to remove the Eighth Amendment from the Constitution.  
• The final report of the Committee is here