The Thirty-sixth Amendment of the Constitution of Ireland (previously bill no. 29 of 2018) is an amendment to the Constitution of Ireland which permits the Oireachtas to legislate for abortion. The constitution had previously prohibited abortion, unless there was a serious risk to the life of the mother.
The proposal is often described as the Repeal of the Eighth Amendment, referring to the 1983 constitutional amendment which guaranteed the right to life of foetuses, making abortion illegal unless the pregnancy is life-threatening. The 2018 amendment replaces Article 40.3.3° of the Constitution, which was added in 1983 and amended in 1992.
The bill was introduced to the Oireachtas on 9 March 2018 by the Fine Gael minority coalition government, and completed its passage through both houses on 27 March 2018. It was put to a referendum on 25 May 2018, and was approved by 66.4% of voters. The amendment took effect when signed into law by President Michael D. Higgins on 18 September 2018.
Background
The British Offences Against the Person Act 1861, which made "unlawful procurement of a miscarriage" a crime, remained in force after Irish independence in 1922. The Eighth Amendment of the Constitution, adopted in 1983, which declares "the right to life of the unborn ... equal [to the] right to life of the mother", was instigated by the Pro-Life Amendment Campaign for fear that the 1861 prohibition might be weakened by liberal legislators or activist judges. In 1992, the Supreme Court ruled in the X Case that abortion is permitted where pregnancy threatens a woman's life, including by risk of suicide. No regulatory framework within the limited scope of the X case judgement was passed until the Protection of Life During Pregnancy Act 2013, impelled by A, B and C v Ireland (2010) in the European Court of Human Rights and death of Savita Halappanavar in 2012 after miscarriage. The 2013 Act repealed the 1861 Act, and makes "destruction of unborn human life" a crime. In the three years 2014–2016, a total of 77 legal abortions were performed under the 2013 Act.
Illegal surgical abortions in Ireland have been practically unknown since the UK's Abortion Act 1967 allowed Irish women to travel to Great Britain for a legal abortion. The 13th and 14th amendments to the constitution, passed in 1992 after the X Case, guarantee the right to information about foreign abortions and to travel abroad for an abortion. The number of women at UK abortion clinics giving Irish addresses peaked at 6,673 in 2001, and was 3,265 in 2016. The decline is partly due to unregulated use of abortion pills illegally delivered from online pharmacies.
While left-wing parties and feminists opposed the 1983 amendment, and have advocated its repeal, this was not supported by the two largest parties for most of the interim: Fianna Fáil, and Fine Gael. In the 2010s, while both parties' leadership opposed broad liberalisation, some accepted the argument for abortion in cases like fatal foetal abnormalities and pregnancy resulting from rape or incest, which are not permitted by the 1983 amendment. These became the focus of campaigning after the 2013 Act. The Abortion Rights Campaign, a pro-choice alliance formed in 2012, held an annual "March for Choice" in Dublin. Anti-abortion groups countered with a "Rally for Life". In the run-up to the 2016 general election, a number of parties committed to a referendum to repeal the Eighth Amendment (Labour, Green Party, Social Democrats, Sinn Féin, and Workers' Party) and a group of feminist law academics published model legislation to show what a post-Eighth Amendment abortion law could look like.
A Fine Gael–led government under Taoiseach Enda Kenny took office after the 2016 election with a programme which promised a randomly selected Citizens' Assembly to report on possible changes to the Eighth Amendment, which would be considered by an Oireachtas committee, to whose report the government would respond officially in debates in both houses of the Oireachtas. Leo Varadkar replaced Enda Kenny as Taoiseach on 14 June 2017 and promised to hold a referendum on abortion in 2018. The Citizens' Assembly, chaired by Supreme Court judge Mary Laffoy, discussed the issue from November 2016 to April 2017 with invited experts and stakeholders, and voted to recommend repealing the existing text and replacing it with an explicit mandate for the Oireachtas to legislate on abortion. It also made recommendations for the consequent legislation, which were more liberal than media commentators had expected. The assembly's report was considered from September to December 2017 by a special Oireachtas committee of 21 members, which also discussed the issue with invited experts; its recommendations by majority vote were broadly similar to those of the assembly. However, it said that because of difficulties legislating for rape and incest, abortion should be legal up to 12 weeks' gestation without restriction; on the other hand, it did not favour socio-economic grounds for abortion after 12 weeks. In January 2018, Minister for Health Simon Harris opened the Dáil debate on the committee's report by listing the numbers from each county who travelled to Great Britain for an abortion in 2016. Fianna Fáil leader Micheál Martin declared that he had changed his view on the issue and gave his support for Repeal of the Eighth Amendment and for the committee's recommendations.
Further action was called into question by a July 2016 High Court ruling that a foetus was a child within the meaning of Article 42A of the Constitution, which guarantees children's rights. The Supreme Court agreed to expedite the government's appeal of the decision, and on 7 March 2018 overturned the High Court judgement, ruling that a foetus was not a child and had no rights other than the right to life mentioned in Article 40.3.3°.
Changes to the text
The Amendment replaced the text of Article 40.3.3°, which 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.
Note: The first clause was added by the Eighth Amendment approved by referendum in 1983. The second and third clauses were added by the Thirteenth Amendment and the Fourteenth Amendment respectively approved by referendum in 1992.
As the Amendment passed, the subsection was replaced with the following text:
Provision may be made by law for the regulation of termination of pregnancy.
Subsequent legislation
The Department of Health published a policy paper on "Regulation of Termination of Pregnancy" on 9 March 2018. This provided an outline of the policies for legislation which would repeal and replace the Protection of Life During Pregnancy Act 2013 if the Amendment of Constitution Bill was passed in a referendum. Under this scheme, abortion would be permissible in circumstances where:
- there is a risk to the health of a woman, on assessment by two doctors, without a distinction between physical and mental health;
- there is a medical emergency, on assessment by one doctor;
- there is a foetal condition which is likely to lead to death before or shortly after birth, on the assessment of two doctors;
- up to 12 weeks of pregnancy without specific indication, with a time period after an initial assessment by a medical practitioner and the termination procedure.
The Policy Paper also proposed that:
- medical practitioners would have a right of conscientious objection;
- the termination of pregnancy in circumstances other than those under the proposal would be a criminal offence, but that a woman who procures or seeks to procure a termination of pregnancy for herself would not be guilty of an offence.
On 26 March 2018, Tánaiste Simon Coveney announced he would support legislation on the lines of the policy paper, but suggested that this should be entrenched by requiring a two-thirds supermajority in the Dáil for any later amendment. This was aimed at voters prepared to accept the policy-paper regulations, but wary of subsequent liberalisation. Coveney's proposal was dismissed as unconstitutional. On 27 March 2018, the cabinet agreed the general scheme of the proposed "Regulation of Termination of Pregnancy Bill 2018", which health minister Simon Harris summarised that evening in the Seanad. The scheme was published online the following day.
Even after the referendum had passed, "Abortion [would] remain illegal in almost all circumstances until the Oireachtas passes legislation providing otherwise". Health Minister Simon Harris, speaking a few days before the referendum, said the Government hoped to introduce the bill in the Dáil in the autumn and to have passed it by the end of 2018.
Oireachtas debate
The Thirty-sixth Amendment of the Constitution Bill was introduced by Minister for Health Simon Harris. The debate on the Second Stage began on 9 March 2018. The Bill passed all stages in the Dáil on 21 March.
The main vote on the bill was at second stage, with 110 in favour and 32 against. Of the 16 who did not vote at second stage, five voted in favour in subsequent votes. At committee stage, there were votes on Section 2 of the bill (98–18) and the short title (96–20); there was also a vote on the final stage (97–25). Fianna Fáil TDs had a free vote although Micheál Martin was reported to be upset at how many voted against the bill. Fine Gael also gave a free vote, including for ministers.
In the Seanad, the second stage was held on 27 March, with a 35–10 vote in favour. Remaining stages were the following day, with the bill passed 39–8 at committee stage and 40–10 at final stage. Eight of the thirteen Fianna Fáil senators voted against, as did two of nineteen from Fine Gael, and independent Rónán Mullen.
Campaign
On 9 March 2018, Minister for Housing, Planning, and Local Government Eoghan Murphy established the statutory Referendum Commission to oversee the referendum campaign, with High Court judge Isobel Kennedy as chair.
Both Fine Gael and Fianna Fáil had allowed their TDs a free vote on the issue in the Dáil. However, although Fine Gael "cannot adopt an official party position because members have been afforded a freedom of conscience vote on issues to do with the referendum", on 21 April, Taoiseach and Fine Gael leader Leo Varadkar launched a Fine Gael "Vote Yes" campaign for Yes-supporting party members, along with party colleagues, including Minister for Health Simon Harris and Fine Gael referendum coordinator, Josepha Madigan.
On 8 May 2018, due to controversy over the origin, number, content, and targeting of adverts on social media, Facebook announced that it would block advertisements placed by foreign entities, most of whom are in the United States, and limit them to adverts placed by Irish organisations. On 9 May, Google announced that it was blocking all adverts on the referendum from its advertising platform and YouTube, citing concerns around the integrity of elections.
On 9 May, the fund-raising web pages of Together for Yes, Amnesty Ireland, and Termination for Medical Reasons were subjected to a denial-of-service attack.
On 20 May, the parents of Savita Halappanavar called for a Yes vote, her father saying, "I hope the people of Ireland will vote yes for abortion, for the ladies of Ireland and the people of Ireland. My daughter, she lost her life because of this abortion law, because of the diagnosis, and she could not have an abortion. She died." After the Yes vote won, Halappanavar's father thanked the people of Ireland.
On 23 May, CNN reported that American-based anti-abortion groups, such as "Let Them Live", have flown to Ireland, in order to sway voters to vote No to the amendment. They entered Ireland by lying to Irish border control about their reason for coming to Ireland, claiming they were only in Ireland to document the event and nothing more.