The Eighth Amendment of the Constitution Act 1983 was an amendment to the Constitution of Ireland which inserted a subsection recognising "the equal right to life of the pregnant woman and the unborn". Abortion had been subject to criminal penalty in Ireland since at least 1861; the amendment ensured that legislation or judicial interpretation would be restricted to allowing abortion in circumstances where the life of a pregnant woman was at risk. It was approved by referendum on 7 September 1983 and signed into law on 7 October 1983. In 2018, it was repealed by the thirty-sixth amendment.
The amendment was adopted during the Fine Gael–Labour Party coalition government led by Garret FitzGerald, but was drafted by the previous Fianna Fáil government of Charles Haughey. Fianna Fáil supported the amendment, while Fine Gael and Labour generally abstained in the Dáil vote. The Workers' Party was the only party to vote unanimously against the Bill in the Dáil. No TD or Senator expressed support for legalising abortion. The Catholic hierarchy and many lay Catholic organisations supported the amendment, but it was opposed by the authorities of other mainstream churches. After a bitter referendum campaign, the amendment was passed by 67% voting in favour to 33% voting against.
Changes to the text
The Amendment inserted a new sub-section after section 3 of Article 40. The resulting Article 40.3.3° read:
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.
Background
As per sections 58 and 59 of the Offences against the Person Act 1861, abortion was already illegal in Ireland. However, anti-abortion campaigners feared the possibility of a judicial ruling in favour of allowing abortion. In McGee v. Attorney General (1973), the Supreme Court of Ireland had ruled against provisions of the Criminal Law Amendment Act 1935 prohibiting the sale and importation of contraception on the grounds that the reference in Article 41 to the "imprescriptable rights, antecedent and superior to all positive law" of the family conferred upon spouses a broad right to privacy in marital affairs, echoing the reasoning of the US Supreme Court in Griswold v. Connecticut (1965)
The Pro-Life Amendment Campaign (PLAC) was founded in April 1981 to campaign for a constitutional amendment which would guarantee against a ruling in Ireland similar to the United States Supreme Court ruling in Roe v. Wade legalising abortion, which was based on the Griswold precedent PLAC met with each of the leaders of the main parties and Garret Fitzgerald, leader of Fine Gael, immediately endorsed their proposal. Charles Haughey, Taoiseach and leader of Fianna Fáil, said he was "not opposed in principle" while Frank Cluskey, leader of the Labour Party, said he would consider the proposal while affirming his party's opposition to abortion. Garret Fitzgerald became Taoiseach in July 1981 but his coalition government fell in January 1981 and it was the subsequent, short-lived Fianna Fáil government which introduced the Bill to amend the Constitution.
Oireachtas debate
The Eighth Amendment of the Constitution Bill 1982 was introduced on 2 November 1982 by Minister for Health Michael Woods on behalf of the Fianna Fáil minority government. The Bill proposed to add Article 40.3.3° to the Constitution, with the wording shown above, if approved by referendum. This wording differed from the PLAC proposal by the inclusion of a balancing phrase - "with due regard to the equal right to life of the mother"- which would prove immensely consequential.
On 4 November, the minority Fianna Fáil government lost a motion of confidence in the Dáil, leading to the November 1982 general election. After the election, a coalition government of Fine Gael and the Labour Party was formed, with Garret FitzGerald as Taoiseach. Minister for Health Barry Desmond of the Labour Party declined to reintroduce the Amendment Bill; instead, it was Fine Gael Minister for Justice Michael Noonan who on 2 February moved to restore the Eighth Amendment Bill to the Order Paper.
Attorney General Peter Sutherland advised that the wording as proposed was dangerously flawed. Speaking against the original wording during the Dáil debate, Fine Gael TD Alan Shatter, author of the best-selling "Family Law in Ireland" said:
The irony is that I have no doubt, not merely from the interpretation the Attorney General has given but from the other interpretations that can be validly taken from the amendment, that if it in its present form becomes part of our Constitution it will essentially secure a constitutional judgment in the not too distant future requiring the House to enact legislation to permit women to have abortions.
— Dáil Eireann Debate Vol. 340 No. 3 Col. 533.
To remedy the perceived weaknesses in the original wording of the amendment bill, the government proposed an amendment to the bill during the committee stage with the following alternative wording:
3° Nothing in this Constitution shall be invoked to invalidate, or to deprive of force or effect, any provision of a law on the ground that it prohibits abortion.
This amendment would block any judicial effort to legalise abortion, as in Roe v. Wade, but it would place on limits on future legislation. Speaking against the alternative wording Michael Woods said:
The amendment proposed by Fine Gael would not protect the constitutional right to life of the mother against attack by any future legislation which sought to prohibit abortion in all circumstances even when the life of the mother was at risk. This is a defect which could be important in the future. Such legislation could not be declared unconstitutional on the grounds that it ignored a mother's right to life because the Fine Gael wording provides that nothing in the Constitution may be invoked to invalidate any law which prohibits abortion.
— Dáil Éireann Debate Vol. 341 No. 10 Col. 2021
A number of backbench Fine Gael TDs who supported the Fianna Fáil wording voted against the government amendment, which was defeated by 87 to 65. Fine Gael and Labour then abstained in subsequent votes on the Bill although some Fine Gael TDs continued to vote in favour and a few Labour TDs voted against. The Workers' Party was the only party which opposed the Bill on its final reading. Both its TDs, Tomás Mac Giolla and Proinsias De Rossa, voted against its passage on 27 April 1983. The original wording proposed by Fianna Fáil was then approved by 85 votes to 11 votes in the Dáil, and by 14 votes to 6 in the Seanad, and put to a referendum.
Referendum campaign
The referendum was legally organised by the Government but neither party in government actively campaigned. A few liberal members of Fine Gael and Labour campaigned against the referendum and, shortly before polling day, Garret FitzGerald declared that he would vote No. The amendment was supported by Fianna Fáil and some conservative members of Fine Gael and Labour. PLAC supported the amendment despite its misgivings on the wording. The Catholic hierarchy and many Catholic associations also supported the amendment while the Irish Council of Churches (representing the main Protestant churches) campaigned against it. Various groups campaigned against the amendment under the umbrella name of the Anti-Amendment Campaign (AAC) which included the Labour senators and future Presidents of Ireland, Mary Robinson, and Michael D. Higgins. The AAC was supported by the main trade unions, feminist campaigners, and many leading figures in the arts. Sinn Féin and the Workers' Party opposed the amendment,
The Workers' Party conducted a separate campaign from the Anti-Amendment Campaign, emphasising civil liberties and religious pluralism. Its activists distributed leaflets and posters and canvassed door to door against the amendment, while the party continued to distinguish its opposition to the constitutional change from support for legalising abortion. Following the referendum, Fianna Fáil minister Michael Woods attributed the high No vote in some working-class districts of Dublin to the Workers' Party's campaigning.
Anti-Amendment campaigners warned the vague nature of the amendment, the sectarian nature of it, the possible risk to the health treatment to pregnant women, and to the possible legal consequences for contraception, which the Pro-Life Amendment Campaign denied.
The Amendment passed on 7 September 1983 endorsed by 67% of those who voted. There was a clear rural/urban and East/West divide with some rural constituencies in the West of Ireland recording Yes votes of over 80% while the results in urban constituencies were more balanced with five Dublin constituencies voting No.
Judicial interpretation
In a number of cases, the Supreme Court had held that this provision of the Constitution prohibited information within the state on the availability of abortion services outside of the state. In AG (SPUC) v Open Door Counselling Ltd. (1988), the courts granted an injunction restraining two counseling agencies from assisting women to travel abroad to obtain abortions or informing them of the methods of communications with such clinics, and in SPUC v Grogan (1989), the courts granted an injunction restraining three students' unions from distributing information in relation to abortion available outside the state. These rulings were overturned by the Thirteenth Amendment and Fourteenth Amendment in 1992, which explicitly gave people the right to travel abroad for an abortion, and to receive information in Ireland about abortion available abroad.
In Attorney General v X (the X Case) in early 1992, the High Court granted an injunction to the Attorney General restraining a fourteen-year-old girl who had been raped from obtaining an abortion in England. On appeal, Supreme Court found that as the girl had shown a risk of suicide, to safeguard "the equal right to life of the mother" in Article 40.3.3°, abortion was permissible in this instance.
The Pro Life Campaign, a successor to PLAC, accused the Supreme Court of misinterpreting both the law and the will of the people. The Government and former Attorney-General Peter Sutherland dismissed such claims, arguing that, as they had claimed in 1983, the 'Pro-Life Amendment' was so poorly worded and ambiguous that it could facilitate either pro-abortion rights or anti-abortion interpretations in different circumstances. The Amendment was not reinterpreted by the Supreme Court on the grounds originally voiced by Peter Sutherland that it would lead to abortion prior to viability or kill women by refusing standard treatments for ectopic pregnancies, cancerous wombs, etc. There was no medical evidence called during the X Case hearings.
In PP v. HSE (2014), the High Court held that the constitution did not require a woman who was medically brain dead to be kept on life support to keep the foetus within her alive, because the chance of the foetus being born alive were "virtually non-existent". It is unclear how the case would have been decided if the pregnancy was further along.
In HSE v. B. (2016), the High Court declined to grant an order sought by the Health Service Executive permitting it to carry out a caesarean section against the will of a pregnant mother.
In an application for leave seeking judicial review of an order for deportation of a Nigerian man, Humphreys J held for the High Court in August 2016 that leave should be granted (i.e. the order for deportation quashed), in part because of the family rights of his unborn child by an Irish woman at the time of the deportation. The state appealed this decision. On 7 March 2018, the Supreme Court upheld the High Court and dismissed the state's appeal in a unanimous decision that the Minister is obliged to take into account the fact of pregnancy; however, it reversed other sections of the High Court and ruled the Minister is accordingly not obliged to treat the unborn as having constitutional rights other than the rights contained in Article 40.3.3°.
Later referendums
Three referendums were held in November 1992. The Twelfth Amendment of the Constitution Bill, 1992 sought to exclude "a risk of self-destruction" as grounds for abortion, to overturn the central element of the decision in the X Case. This was rejected by 65% to 35%. The Thirteenth Amendment, permitting travel to obtain abortion in another jurisdiction, was approved by 62% to 38%. The Fourteenth Amendment, permitting information about services in other countries, was approved by 60% to 40%.
After these amendments, which became law on 23 December 1992, Article 40.3.3° read,
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.
This subsection shall not limit freedom to travel between the State and another state.
This subsection shall not limit freedom to obtain or make available, in the State, subject to such conditions as may be laid down by law, information relating to services lawfully available in another state.