What is the 8th Amendment, and why does it matter?

The ‘8th Amendment’ is the name usually given to Article 40.3.3 of the Constitution. This introduces a near absolute ban on abortion in Ireland. It allows abortion as a last resort only where a woman’s life is at risk. Because it is part of the Constitution, it is not possible for the Oireachtas to introduce a law that would allow abortion in other cases (e.g. rape, serious risk to health). Such a law would be unconstitutional and struck down by the courts. In order to reform abortion law in Ireland the 8th Amendment must be repealed. This can only be achieved by a referendum.


In 1983, the Irish people went to the polls to change the Constitution for the eighth time in the history of the State. The referendum passed and resulted in the 8th Amendment, Article 40.3.3., being added to the Constitution.

The 8th Amendment  inserted “the right to life of the unborn” into the Constitution. The “unborn” is the foetus in the womb from implantation until birth. The Amendment also introduced a constitutional ban on abortion except in cases where the life of the pregnant woman was at risk.

In 1992, Article 40.3.3. was changed in another referendum to add two new clauses, one of which secured a right to information about abortion (the 14th Amendment) and another of which ensured people could not be prevented from travelling to access abortion abroad (the 13th Amendment).

Article 40.3.3 is actually a combination of the 8th, 13th and 14th Amendments to the Constitution, but is generally known as ‘the 8th’.

Article 40.3.3 states:

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.

‘The 8th’ has many effects in Irish law:

  1. Providing or having an abortion is a serious criminal offence, carrying a penalty of up to 14 years imprisonment. (Protection of Life During Pregnancy Act 2013, s. 22)
  2. The only exception to this criminalisation is where doctors determine
    1. That a pregnant person’s life is at real and substantial risk, and
    2. That the foetus is not viable, and
    3. That bringing the pregnancy to an end is the only way to address the risk.
  3. In an emergency one doctor’s opinion is required. Where there is a risk to life from physical ill-health two doctors’ opinions are required. Where there is a risk to life from suicide three doctors’ opinions are required. (Protection of Life During Pregnancy Act 2013, s.s. 7, 8, 9).
  4. Abortion is illegal even where the pregnancy places a woman’s health at serious risk, in cases of rape or incest, or where the foetus is likely to die before or shortly after birth (i.e. in situations of ‘fatal foetal anomaly’). (Protection of Life During Pregnancy Act 2013, s.s. 7, 8, 9).
  5. Doctors may delay making a decision to terminate a pregnancy until the foetus has reached viability (i.e. can likely survive outside the womb).  Once the pregnancy is viable, early delivery is the required course of action. (Protection of Life During Pregnancy Act 2013, s.s. 7, 8, 9).
  6. Access to information about getting an abortion abroad is seriously restricted. Counsellors can never advocate abortion; all information must be non-directive. If doctors or counsellors provide  a woman with information about terminating a pregnancy, they must also provide information about continuing with pregnancy and about adoption. State-funded information services may opt out of providing information about abortion unless a woman specifically asks for that information. (Regulation of Information (Services Outside the State For Termination of Pregnancies) Act 1995, s. 5)
  7. Doctors in Ireland commit a criminal offence if they directly refer their patients for abortion care in another country, no matter how complicated the medical circumstances are (e.g. in a case where a foetus has been diagnosed with a fatal anomaly). (Regulation of Information (Services Outside the State For Termination of Pregnancies) Act 1995, s. 8).
  8. During pregnancy a woman does not have the usual right to refuse consent to proposed medical treatment. Instead, if her medical team feel that by refusing a particular treatment she is placing the foetus’ life at risk, they may seek a court order to override her refusal, and order invasive medical treatment. The law does not clearly define how serious the risk to the foetus’ life must be, before these measures can be taken.  (HSE, National Consent Policy, Para 7.7.1 (p. 41)).

In order to change these laws, the ‘8th Amendment’ must be removed from the Constitution. If the Oireachtas were to pass new law attempting to make abortion available in cases of serious risk to health, for example, this law would be unconstitutional and would be struck down (invalidated) by the Courts. If we want to change our abortion law, we must change the Constitution first.

In the referendum, the People will be asked to remove Article 40.3.3 and replace it with a clause that says:

Provision may be made by law for the regulation of termination of pregnancy.

This is the proposed 36th Amendment. If passed, it will make it crystal clear that the Oireachtas can legislate to make abortion legally available in Ireland. In other words, the Irish parliament would be able to make law around abortion using the ordinary legislative process. It would have the same power to make law for access to abortion that is enjoyed by almost all parliaments around the world and would no longer have its hands tied by a near-absolute ban of abortion in the Constitution.

Summary

A ‘yes’ vote will remove Article 40.3.3 and provide scope for the Oireachtas to make law regulating access to abortion.

A ‘no’ vote will retain Article 40.3.3 and prohibit the Oireachtas from making any change that might liberalise the current law, including in cases of rape, incest, grave risk to health, and diagnoses of fatal foetal anomalies.

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