The 8th Amendment was added to the Irish constitution by referendum in September 1983. It states that
“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.”
As such, abortion for any reason became illegal in the Republic of Ireland.
Prior to 1983, abortion was illegal in Ireland under the 1861 Offences against the Person Act. However, in 1973 there were already challenges to the more sexually restrictive elements of Irish law, with McGee vs Attorney General resulting in the ban on the sale and import of contraceptives being reversed, based on their use being protected by the right to privacy of the family. The same year, Roe V Wade paved the way for abortion access in the US. Fearing a Roe V Wade of our own, or a case similar to McGee, where access to abortion could be considered to be part of the privacy of the family, anti abortion activists (under the Pro Life Amendment Campaign) set about to secure an outright constitutional ban on abortion in Ireland. 67% of voters voted in favour of introducing the 8th Amendment to the Irish Constitution. The youngest person who voted in 1983 would be 52 in 2017.
The X Case
In 1992, the Supreme Court heard the case of a 14 year old girl who had become pregnant as a result of rape in December 1991. Miss X (known as such to protect her identity) was sucidal as a result of this pregnancy, and her family planned to bring her to England for an abortion (abortion was legalised in England, Wales and Scotland in 1967). Before they left, the family asked the gardaí if DNA from the feotus could be used in the court case against the girl’s rapist. Upon learning that Miss X planned on having an abortion, the Attorney General Harry Whelehan sought an injunction under the 8th Amendment in February 1992, preventing Miss X from leaving the country. The reasoning was that because abortion was illegal under the Irish constitution, Miss X was not legally allowed to have an abortion, even if that abortion was carried out in another country where abortion was legal. In March 1992 this injunction was overturned with the High Court ruling that a person had a right to an abortion in Ireland if there was a “real and substantial risk” to their life – including through suicide as was the case with Miss X. This understanding came from the ‘due regard to the equal right to life of the mother’ wording of the 8th Amendment.
Amendments to the 8th
Following the X Case in 1992, there were a number of proposed amendments to the constitution with regards to the 8th in November 1992. The 12th Amendment proposed that abortion would remain illegal and unavailable even if the pregnant person was at risk of suicide. The 13th Amendment specified that the 8th Amendment could not limit the freedom to travel between Ireland and another country. The 14th Amendment allowed for the distribution of information about abortion services in other countries. The 13th and 14th Amendments (the right to travel and right to information, respectively) were passed, the 12th Amendment was defeated.
In 2002, another referendum to remove suicide as a real and substantial risk to life was rejected by voters.
A, B, C and D
In 2007, a 17 year old woman known as Miss D discovers she has an anencephalitic pregnancy and wishes to terminate. Miss D was a minor and a ward of the state, and did not say she was suicidal. As such the HSE request the gardaí to arrest her if she tries to leave the country and ask the passport office to refuse to issue her a passport. Miss D goes to the High Court where it is ruled that she has the right to travel. The European Court of Human Rights (ECHR) argues that Miss D would have been entitled to a termination had she gone through the court system.
Three years later, the ECHR heard another case relating to the 8th Amendment in ABC Vs Ireland. Miss A and Miss B’s claims were both in relation to health issues arising from having to travel for an abortion and the uncertainty surrounding their ability to be treated for post abortion bleeding etc in Ireland without facing legal consequences. Miss C became pregnant while undergoing treatment for cancer, and was provided with inadequate information about her or the foetus’ wellbeing should she continue the pregnancy. She traveled to the UK for an abortion. The ECHR ruled in favour of Miss C, stating that Ireland had failed to provide an established and accessible procedure by which people can access their (albeit limited) right to an abortion in Ireland under the 8th.
Following the ruling, the Irish government states that an expert group will be formed to implement the ECHR ruling. 7 months later, in January 2012, this expert group is established and states it will complete its report X Case legislation within 6 months. In April, a private members bill to legislate for the X Case is overwhelmingly rejected.
In October 2012, Savita Halappanavar died in Galway University Hospital after being repeatedly refused a termination for an inevitable miscarriage because a foetal heartbeat was detectable. A gross under-management of the risk of infection and sepsis, along with the refusal to intervene until the miscarriage had completed were given as the cause of death. Although Savita died 8 months after the expert group was established to legislate for abortion in Ireland, they had yet to make any report, continuing to leave the legal situation surrounding abortion in cases like Savita’s up in the air.
In November 2012, another private member’s bill to legislate for the X Case was overwhelmingly defeated in the Dáil. Later that month, the expert group published a very narrow and limited report based solely on the ECHR’s ruling, noting that legislation will have to be inacted in order to provide any real access for abortion even under the 8th. This is later criticised by the ECHR as being not enough.
Protection of Life During Pregnancy Act
In July 2013, the Protection of Life During Pregnancy Act (PLDPA) was signed into law. The PLDPA legislates for the X Case and commenced in January 2014, nearly 22 years after the X Case. It provides legislation and procedures for accessing an abortion in Ireland under the 8th Amendment – when there is a risk to life, including through suicide, should the pregnancy continue.
When there is a risk of loss of life through physical illness in an emergency, a single physician must provide the diagnoses and carry out the termination.
When there is a risk of loss of life from physical illness in a non-emergency situation, two physicians must agree that an abortion is necessary – one must be an obstetrician and the other must be a specialist in the physical illness in question. It is also recommended that these doctors contact the pregnant person’s GP.
When there is a risk of loss of life through suicide, three physicins must agree that a termination is necessary – one must be an obstetrician, and two must be psychiatrists, one of which needs to have experience treating pregnant people. At least one of these doctors needs to consult with the patient’s GP.
Ms Y sought to access an abortion under the PLDPA in 2014. She was a minor and an asylum seeker, who learned about her pregnancy after she arrived in Ireland, which was the result of being raped in her home country. She applied to have an abortion under the provisions for risk to life through suicide – she was unable to travel to the UK for an abortion due to her status as an asylum seeker. The panel of three physicians decreed that she was indeed suicidal. At this time she was being held under the Mental Health Act as she was very clear about her intentions to end her life should she be forced to continue the pregnancy. She was told that it was too late for a termination and that the plan was to detain her for as long as possible to get the pregnancy to the point of viability. Ms Y starts to refuse fluids and food. The HSE applies for and is granted permission to sedate and rehydrate Ms Y. She has a cesarean section at the beginning of August, two weeks after being detained and 18 weeks after she first expressed a desire to travel for an abortion, when she was approximately 9 weeks pregnant.