Will ‘the unborn’ be protected after repeal?

Yes.

If the 8th Amendment is repealed ‘the unborn’ will no longer have the constitutional right currently enshrined in that Amendment. However, the proposed new law imposes restrictions such as time limits, waiting periods, and limited circumstances during which abortion is allowed after 12 weeks in order to protect foetal life.


The Supreme Court has said that foetal rights in the Constitution are only protected by the 8th Amendment (M v Minister for Justice (2018)).(1) However, in the same case, the Supreme Court 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 Government’s proposed new law (General Scheme) aims to protect foetal life in four main ways:

  • Up to 12 weeks, a pregnant person must wait 3 days from requesting an abortion to being able to have one. This is intended as a ‘reflection period’ (see explanation here).
  • After 12 weeks, abortion is only available on limited grounds: a risk to the life of the pregnant woman, a risk of serious harm to a pregnant woman’s health, or a diagnosis of a ‘fatal foetal anomaly’.
  • After viability (usually 23-24 weeks, according to the Royal College of Physicians Ireland) abortion is banned except in cases of ‘fatal foetal anomalies’. Where there is a risk to the life, or a serious risk to the health, of the pregnant person a pregnancy can only be ended by live birth (see explanation here).
  • It will be a criminal offence to give an abortion outside of the terms of the new law, although pregnant people will never be criminalised for having an abortion (see explanation here).

Thus, while foetal rights will no longer exist in the Constitution, the proposed new law will protect foetal life by placing proportionate restrictions on pregnant people’s ability to access lawful abortion in Ireland.

 

(1) In a recent intervention, former Chief Justice Ronan Keane has said that the unborn may retain a right to life after repeal, but that this right to life could be protected while legislating for access to abortion. (https://www.irishtimes.com/opinion/repeal-of-eighth-does-not-mean-unborn-have-no-right-to-life-1.3496422)

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