Three referendums were held in Ireland on 25 November 1992, the same day as the 1992 general election. Each was on a proposed amendment of the Irish constitution relating to the law on abortion. They were enumerated as the Twelfth, Thirteenth and Fourteenth Amendments. The proposed Twelfth Amendment was rejected by voters while both the Thirteenth and Fourteenth were approved.
Background
The Eighth Amendment of the Constitution was approved in a referendum in 1983. It inserted a new sub-section in 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.
The Society for the Protection of Unborn Children obtained two injunctions affecting the availability of information on abortion services outside of the state. In Attorney General (Society for the Protection of Unborn Children (Ireland) Ltd.) v Open Door Counselling Ltd. and Dublin Wellwoman Centre Ltd. (1988), an injunction was granted 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 Society for the Protection of Unborn Children (Ireland) Ltd. v Grogan (1989), an injunction was granted restraining three students' unions from distributing information on abortion available outside the state. The Fourteenth Amendment allowed for information on abortion under terms regulated by law.
In March 1992, the Supreme Court held in the X Case that a 14-year-old girl who had become pregnant as a result of rape could obtain an abortion in circumstances where there was a threat to her life from suicide. The proposed Twelfth and Thirteenth Amendments were held to reverse differing elements of the Supreme Court's judgment in the X Case in which it held that a risk of suicide by a pregnant woman could constitute a risk to her health which would justify an abortion, and that the courts had to power to grant an injunction preventing a pregnant woman from travelling abroad for an abortion. The Fourteenth Amendment also related to abortion and was introduced to reverse decision by the courts in the abortion information cases. In these cases — beginning with Attorney-General (Society for the Protection of the Unborn Child) v Open Door Counselling Ltd. — the courts had granted injunctions preventing individuals from distributing contact information for foreign abortion clinics.
Wording
Twelfth Amendment Bill
The Twelfth Amendment of the Constitution Bill 1992 proposed that the possibility of suicide was not a sufficient threat to justify an abortion. The wording of the proposed amendment was:
It shall be unlawful to terminate the life of an unborn unless such termination is necessary to save the life, as distinct from the health, of the mother where there is an illness or disorder of the mother giving rise to a real and substantial risk to her life, not being a risk of self-destruction.
Thirteenth Amendment
The Thirteenth Amendment of the Constitution provided that the prohibition of abortion would not limit freedom of travel from Ireland to other countries where a person might legally obtain an abortion. The wording of the proposed amendment was:
This subsection shall not limit freedom to travel between the State and another state.
Fourteenth Amendment
The Fourteenth Amendment of the Constitution proposed:
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.
Accepted amendments
With the approval of the Thirteenth Amendment and the Fourteenth Amendment, the full text of Article 40.3.3° read as the follows:
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.
Passage through the Oireachtas
12th
The Twelfth Amendment Bill was proposed in the Dáil by Minister for Justice Pádraig Flynn. The Amendment was approved by the Dáil on 27 October 1992:
Fianna Fáil Senator Des Hanafin, a member of the Pro Life Campaign (PLC), did not vote for the government wording. He proposed an amendment at committee stage proposing the wording supported by the PLC:
It shall be unlawful to act in such a way as to bring about the termination of the life of an unborn unless such termination arises indirectly as a side-effect of treatment designed to protect the life of the mother.
This wording was not voted on, and the bill was approved by the Seanad on 30 October 1992.
13th
A previous amendment to the constitution had been proposed in a private member's bill by Labour Party TD Brendan Howlin on 12 May 1992. This proposed to insert the following subsection after Article 40.3.3°:
4° Sub-section 3 of this section shall not be invoked to prohibit or interfere with the exercise of the right—
i.to travel to and from the State for the purpose of receiving services lawfully available in other jurisdictions, or
ii. to obtain, within the State, information and counselling relating to such services.
The provision of such information and counselling may be regulated by law.
This was defeated at Second Stage the following day by 62 votes to 67.
The Thirteenth Amendment was proposed in the Dáil by Minister for Justice Pádraig Flynn on 21 October 1992. It was passed in the Dáil on 22 October and in the Seanad on 30 October. It proceeded to a referendum on 25 November.
14th
A previous amendment to the constitution had been proposed as a private member's bill by Labour Party TD Brendan Howlin on 12 May 1992. This proposed to insert the following subsection after Article 40.3.3°:
4° Sub-section 3 of this section shall not be invoked to prohibit or interfere with the exercise of the right—
i.to travel to and from the State for the purpose of receiving services lawfully available in other jurisdictions, or
ii. to obtain, within the State, information and counselling relating to such services.
The provision of such information and counselling may be regulated by law.
This was defeated at Second Stage the following day by 62 votes to 67.
The Fourteenth Amendment was proposed in the Dáil by Minister for Justice Pádraig Flynn on 21 October 1992. It was passed in the Dáil on 22 October and in the Seanad on 30 October. It proceeded to a referendum on 25 November.
Later developments
The legislation anticipated by the Fourteenth Amendment was provided for in the Regulation of Information (Services Outside the State For Termination of Pregnancies) Act 1995. This bill was referred by the President to the Supreme Court prior to its enactment, which upheld it as constitutional, having assigned counsel to argue that it provided inadequate protection to the life of the unborn, and counsel to argue that it provided inadequate protection to the rights of a woman. It was found to be constitutional and signed into law on 12 May 1995.
No legislation was enacted in the aftermath of the defeated 12th referendum. In 2002, the proposed Twenty-fifth Amendment would have similarly excluded the risk of suicide as grounds for an abortion. On this occasion, the government proposal did have the support of the Pro Life Campaign. This too was rejected in a referendum, but by a much narrower margin.
The European Court of Human Rights found against the state in A, B and C v Ireland (2010). The government responded to this with the enactment of the Protection of Life During Pregnancy Act 2013, which provided for abortion in the cases where there was a risk to the life of the woman, including from a risk of suicide.
Repeal
On 25 May 2018, the Thirty-sixth Amendment of the Constitution was passed by referendum. It was enacted on 18 September 2018, replacing the previous text of Article 40.3.3° with:
3° Provision may be made by law for the regulation of termination of pregnancy.