Repeal does not have implications for medical negligence law.
The government proposes to legalise abortion after 12 weeks in four situations:
- Where there is a risk to a woman’s life
- Where there is a risk to serious harm to a woman’s physical or mental health
- In emergency situations where there is an immediate risk to a woman’s life or a risk of serious harm to her health
- Where the foetus has been diagnosed with a condition that means it will die before or shortly after birth (fatal foetal anomaly)
Except in emergencies or in cases of fatal foetal anomaly abortion will be illegal after the foetus has reached viability.Read More »
In collaboration with Lawyers for Choice, we have produced a new booklet providing short accessible answers to key questions about the referendum. We hope it will be a useful way of encouraging undecided voters to come and take a closer look at the more detailed answers here on the site. Look out for hard copies of the booklet in the future.
Our printing budget is very limited. However, we welcome any local canvassing group who want to print out and distribute their own copies. Please just tag us on twitter at @aboutthe8th to let us know that you are using the booklet.
Kathy at We Do Printing (www.wedoprinting.ie) designed the booklet and we highly recommend her work.
The booklet also comes in an ‘Easy to Read’ version, which you can download here
The 8th Amendment affects women’s right to refuse consent to treatment in pregnancy. It may also restrict the kinds of treatment, including abortion, that doctors can offer to their pregnant patients.
We are writing to clarify some of the likely legal consequences of a ‘Yes’ vote in the May 25th referendum.
Last month, in the MM case, the Supreme Court confirmed that, before birth, the foetus does not enjoy any constitutional rights other than the right to life under the 8th Amendment. This does not mean that, if the referendum passes in May, the Constitution would prevent the Oireachtas from legislating to protect foetal life before birth. Irish law already makes this clear. Rights are not the only constitutional tools for protecting important societal values. In 2009, in Roche v. Roche, the Supreme Court held that embryos created by the IVF treatment process did not enjoy constitutional rights but are entitled to respect. In MM itself the Court said that the State is entitled, through legislation, to give effect to the respect that is due to foetal life as a dimension of the common good.
In Germany, the Czech Republic, Canada, the United States and elsewhere, constitutional courts have permitted proportionate interference in women’s reproductive rights in the interests of protecting foetal life for the common good.
Proponents of a ‘No’ vote in the referendum have argued that we can expect to see an Irish equivalent of the United States Supreme Court’s judgment in Roe v. Wade if the 8th Amendment is repealed. What they do not say is that the decision in Roe, and its successor, Planned Parenthood v. Casey, permitted states to regulate abortion access. In keeping with these decisions, many American states now have very conservative abortion laws.
If the referendum passes, the Protection of Life During Pregnancy Act 2013, will remain in force initially. However, respect for women’s constitutional rights to bodily integrity, liberty, equality and privacy would likely require change to our abortion legislation. That said, because these rights are not absolute, the state can introduce proportionate restrictions on access to abortion care, in the interests of the common good.
The General Scheme of a Bill to Regulate Termination of Pregnancy, published by the Minister for Health in March, fits this model. In providing for abortion on request up to 12 weeks, Ireland would be in line with most European countries. In restricting abortion access after 12 weeks to cases of risk to life, risk of serious harm to health, and fatal foetal impairment, the law would be more restrictive than that in many European countries. The proposed mandatory 72 hour waiting period before accessing abortion in the first trimester is also conservative by European standards.
Reasonable people may disagree as to what any future abortion legislation should look like. However, a ‘Yes’ vote is a vote to remove the harmful 8th Amendment from the Constitution, enabling regulation of abortion under law, and access to care at home for Irish women who need it. To present matters otherwise is to ignore, or to seek to misrepresent, the reality of the legal regulation of abortion in comparable countries, and the content of our own constitutional law.
Sincerely, (in order of signature)
- Máiréad Enright, Senior Lecturer in Law, Birmingham Law School
- Fiona de Londras, Professor of Global Legal Studies, Birmingham Law School
- Eoin Daly, Lecturer in Law, NUI Galway
- Senator Ivana Bacik, Trinity College Dublin
- Ruth Fletcher, Senior Lecturer in Law, Queen Mary, University of London
- Wendy Lyon, Solicitor
- Aoife O’Donoghue, Professor of Law, Durham University
- Colin Murray, Senior Lecturer, Newcastle University
- Vicky Conway, Associate Professor of Law, Dublin City University
- Aisling McMahon, Associate Professor in Biolaw, Durham University
- Alan Greene, Associate Professor, Durham University
- Sinead Williams, Trainee Solicitor
- Gearoidin McEvoy, PhD Candidate, Dublin City University
- Katie Dawson, Barrister
- Matthew Doncel, Trainee Solicitor
- Catherine Forde, Barrister
- Julie McCandless, Senior Lecturer, Kent Law School
- Barbara Davidson, Solicitor
- Simone George, Solicitor
- Jennifer Schweppe, Lecturer in Law, University of Limerick
- Christine Ryan, SJD Student, Duke Law
- Kieran McNulty, Postgraduate Student, London School of Economics
- Nóra Ní Loinsigh, Barrister
- Shubhangi Kharmakar, Ex-Treasurer, Association of Medical Students in Ireland
- Michael Fealy QC, Barrister
- Gemma Hayes, Legal Secretary
- Anne-Marie Kelly, Solicitor
- Marguerite Bolger SC
- Elizabeth Ferries, Information Rights Programme Manager, International Network of Civil Liberties Organizations, Irish Council for Civil Liberties
- Félim Ó Maolmhána, Trainee Solicitor
- Darragh Mackin, Partner, KRW Law, LLP
- Evin Mooney, Student, Edinburgh University
- Laura Foley, Trainee, European Parliament
- Alan D.P. Brady, Barrister and Adjunct Lecturer, Trinity College Dublin
- Sandra Duffy, PhD Candidate, NUI Galway
- Bríd Ní Ghráinne, Sheffield University Law School
- Colin Smith, Barrister
- Maeve O’Rourke, Barrister
- Judy Walsh Lecturer, University College Dublin
- Denise Roche, Legal and Policy Officer, National Women’s Council of Ireland
- Daisy Hickey, FE1 Candidate
- Lewis Mooney, Barrister
- Alana Farrell, PhD Candidate, University of Birmingham
- Emma Hutchinson, Barrister
- Marie Flynn, Barrister
- Shauna Bruder, Legal Counsel
- Sinéad Gleeson, Trainee Solicitor
- Béibhinn O’Connor, Law student
- Eileen Lynch, Trainee Solicitor
- Tara Roche, Solicitor
- Sinéad Ring, Senior Lecturer, Kent Law School
- Eilionóir Flynn, Director and Senior Lecturer, Centre for Disability Law & Policy, NUI Galway
- Seáneen Sullivan, LLB
- Claire Bruton, Barrister
- Claire O’Connell, BCL, LLM, Legal Researcher, Law Reform Commission (personal capacity)
- Ciara Dowd, Legal Researcher, Law Reform Commission (personal capacity)
- Jack Nea BL, Legal Researcher, Law Reform Commission (personal capacity)
- Hanna Byrne BCL MSc LIBSD, Law Reform Commission (personal capacity)
- Niall Fahy, Barrister
- Gráinne Duggan, Barrister
- Alison Hough, Law Lecturer
If you are a lawyer based in Ireland, or otherwise expert in Irish law, you are welcome to add your name to the letter. Please use this form to sign, and we will update the signatures list periodically. This letter was published in the Irish Times on 9 April 2018.
The Law Now
The Law after Repeal
The Law if the 8th Amendment is not Repealed
International human rights law does not protect a general right to access abortion.
International human rights law does require that lawful abortion would be available in situations of rape, incest, or fatal foetal anomaly.
Furthermore, international human rights law recognises that a lack of access to lawful abortion can have serious implications for the rights of women and girls.Read More »