Some people are anxious that a vote to repeal the 8th Amendment will lead to abortion ‘up to birth’, and that this will be required by the Constitution after repeal. However, this is not the case.
The government’s proposed new legislation allows for abortion ‘on request’ up to 12 weeks. After that, the government proposes to allow abortion only on very limited, health-based, grounds up to the point of foetal ‘viability’ (i.e. the point at which the foetus is likely to be capable of surviving outside the womb). Past the point of foetal ‘viability’, the government proposes only to allow abortion in cases of ‘fatal foetal anomaly’; where the foetus has been diagnosed with a condition which means that it is unlikely to be born alive, or to survive very long after birth.
It is extremely unlikely that the Constitution could be said to require the state to provide for abortion ‘up to birth’.
The Constitution would not require it
If the 8th Amendment is repealed, the foetus will no longer have a constitutional right to life. The pregnant woman, by contrast, will have a number of constitutional rights, including the rights to life, privacy and bodily integrity. However, this does not mean that the Constitution would require the introduction of abortion ‘up to birth’ in order to vindicate the rights of pregnant people.
With the exception of the right to life, and the right to freedom from torture, the pregnant woman’s rights are not absolute. They are ‘qualified’, or limited. The Oireachtas is entitled to limit these rights in pursuit of the common good.
The Supreme Court has recognised the protection of foetal life as part of the common good and a legitimate state aim (M v Minister for Justice (2018)). This means that the state can regulate abortion, and restrict access to varying degrees at different points during pregnancy, in order to achieve its aim of protecting foetal life.
The former Chief Justice, Ronan Keane has recently suggested that the foetus might retain a right to life even without the 8th Amendment. However, this right would be more limited than under the 8th Amendment, and claims made under that right would need to be balanced against the constitutional rights of the woman.
On this basis, the state is entitled to set time limits, after which abortion will not be legally available.
The Constitution will not require the introduction of abortion ‘up to birth’ to vindicate the rights of pregnant people. Instead, access to abortion can be restricted to protect foetal life where that restriction is proportionate. Gestational term limits for access to abortion can be a proportionate limitation of constitutional rights during pregnancy.
The proposed new law does not allow it
The Department of Health has published the ‘general scheme‘ of the law it proposes to put to the Oireachtas if the referendum succeeds. This is organised into ‘Heads’. It is very clear from the scheme that after 12 weeks abortion would only be available in exceptional circumstances. The government proposes that abortion will be available on request in early pregnancy. In later pregnancy, access to abortion would be restricted:
0-12 weeks: on request (Head 7)
12 weeks +: Risk to life of pregnant person and foetus has not reached viability (Head 4)
12 weeks +: Risk of serious harm to health of pregnant person and foetus has not reached viability (Head 4)
12 weeks +: the foetus has been diagnosed with a condition likely to lead to its death before or shortly after birth (Head 6)
In almost all cases, then, the new law will only allow lawful abortion up to viability. So-called ‘late term abortion’ will be prohibited in all but one circumstance: a diagnosis of ‘fatal foetal anomaly’ (see explanation here).
‘Viability’ refers to whether a foetus can survive outside the womb. The point at which a foetus reaches viability varies from pregnancy to pregnancy, and depends on a wide range of factors such as foetal weight, size and health. Whether a foetus is viable in any particular case will be decided by two medical practitioners, one of whom is an obstetrician, taking all of the circumstances into account. Although the point of viability differs from case to case, viability ordinarily occurs at around 23-24 weeks. The Royal College of Physicians Ireland says:
In Ireland, which has world-class neonatal intensive care facilities, viability is currently considered to occur at approximately 23 to 24 weeks of pregnancy. Some babies born at 23 weeks may survive while many born after 24 weeks may not. In Ireland around 70% of babies born at 23 weeks and 50% born at 24 weeks will not survive. Among survivors the rate of disability is high, with lifelong complications such as cerebral palsy, blindness and/or deafness.
The only circumstance in which a ‘late term’ abortion would be allowed is where there is a diagnosis of ‘fatal’ foetal anomaly and the pregnant person decides that bringing the pregnancy to an end is the appropriate course of action in her case. Otherwise, lawful abortion is permitted only up to the point of ‘viability’.
The law proposed to follow repeal of the 8th Amendment would only allow abortion up to the point of foetal viability, which is usually 23-24 weeks, except in cases where a ‘fatal foetal anomaly’ has been diagnosed. This would be a proportionate limitation of the rights of pregnant people, similar to that imposed in many other countries, and is extremely unlikely to be found unconstitutional.
de Londras & Enright, Repealing the 8th: Reforming Irish Abortion Law (2018), Chapter 3 & Postscript
M v Minister for Justice and Others  IESC 14, para. 10.63