#RepealTheEighth or #SaveTheEighth


Tomorrow, Ireland will go to the polls in order to vote on whether or not to repeal the current law on abortion. According to the Eighth Amendment of the Constitution of Ireland, there is an equal right to life of a mother and an unborn child.  The recognition of this equal right was enshrined into the constitution following a vote in 1983, following a 66.9% majority.

Cases since the implementation of the amendment have, however, caused concern for both the population and the political parties. One of the most notable examples is from 2012 where it was decided that the contraction of sepsis was not severe enough to constitute a ‘risk to life’ of the mother that would permit termination of the pregnancy.  Her condition only became severe enough once it was too late to terminate, and the mother subsequently lost her life.

What is the current law in Ireland?

As both the mother and unborn child are treated as having an equal right to life, a woman can only terminate a pregnancy where there is a substantial risk to life. This means that severe harm (that is not life-threatening), physical or psychological, is not sufficient.  One of the more controversial limitations to the law, therefore, arises in that a woman who falls pregnant after being raped is not able to terminate the pregnancy.

It also means any disability found in the foetus is not a ground for abortion, no matter how severe. One of the #savetheeighth arguments focuses on this area, demonstrating concerns that pre-natal detectable disabilities would result in termination of pregnancies of babies with conditions such as downs syndrome.  The alternative #repealtheeighth argument in this regard considers women who become aware, early on in the pregnancy, that their baby will not survive yet have to continue to carry it for the duration of the gestational period.

What is proposed?

It has been pledged that if the referendum result is ‘yes’, terminations could be lawful up to 12 weeks’, or the ‘first trimester’, of the pregnancy. This would potentially cover unwanted pregnancies that are discovered early, but would still not address other issues such as risk of harm and foetal disability after the 12-week cut-off.  Any indication of how the reform might look has yet to be formalised.

How is the law in England and Wales different?

Under the Abortion Act 1967, there are various defences available to what would otherwise be an unlawful action of procuring a miscarriage. As well as a number of procedural requirements, the grounds for the lawful termination of a pregnancy fall into 5 categories:

  • A risk to the physical or mental health of the woman or existing children, where the pregnancy has not exceeded its 24th week.
  • A risk of permanent and grave injury to the physical or mental health of the woman.
  • A risk to the life of the woman.
  • A substantial risk that the baby, if born, would be seriously handicapped.
  • A medical emergency with a potential injury to the physical or mental health of the woman.

Many critics regard the first ground as creating an ‘abortion on demand’ service due to the fact that there is a low threshold as to what constitutes a risk to the mental health of the woman. There are also concerns over the fact that, due to scientific advances, a pregnancy is now viable before the 24th week. This means that the lower threshold could be used as a ground for terminating a pregnancy when the foetus was capable of being born alive.

abortion requirements

Friday 25th May is the day.  Results expected over the weekend

The more flexible laws adopted in the England and Wales have resulted in women travelling from Ireland in order to access abortion services. By the end of the weekend, we will know whether this journey will continue to be necessary for women seeking to terminate pregnancies.

For an interesting, and quick read, on this debate, I would recommend the short article by Sally Rooney available here: https://www.lrb.co.uk/v40/n10/sally-rooney/an-irish-problem

“The abortion rate in Ireland will not fall if the referendum fails; it may not increase substantially if the referendum passes. But the relationship of pregnant women in Ireland to their own bodies will change, and change significantly, if the ‘Yes’ campaign is successful.”

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