While polls show consistent majorities in favour of repealing the Eighth Amendment, there is remarkable reluctance to allow repeal to be put to referendum. And given the precarious position of the Government, the Citizens’ Assembly exercise – a rather overwrought process – may serve only to further delay any reckoning, likely remitting the matter into the lifetime of the next Dáil.
Aside from the usual sensitivities around abortion, the reluctance to repeal seems to have a peculiar explanation. A perception has emerged that, if the Eighth Amendment were to be removed, something – whatever that is – would have to be put in its place in the Constitution.
Without a substitute, it is imagined we would then have a “liberal” or “on-demand” abortion regime. And since Irish people disagree on just how accessible abortion should be – and so what should replace the Eighth – there is reluctance to simply repeal. In other words, it’s imagined we need to have a consensus on what shape our abortion laws should take before we amend the Constitution.
This view is completely unfounded. It is based on a misunderstanding not only of the practical consequences of repeal, but also on the role of the Constitution in general.
Law would remain in force
Simply repealing the Eighth Amendment outright is not a vote to liberalise abortion law in any particular way or to any particular extent. The Constitution is not a “law”, in the usual sense, but rather a law that sets limits to laws, which frames the Oireachtas’s power to legislate.
If the amendment were repealed outright, the law currently regulating abortion, the Protection of Life During Pregnancy Act 2013 – one of the strictest such laws in the world – would remain in force. It could, in principle, be challenged as unconstitutional under a changed constitutional text, but courts are inclined to defer to the Oireachtas in such matters and, in any event, it was always widely understood that before the amendment, the Constitution already permitted the prohibition on abortion.
It has been argued that repeal would be interpreted as intending to strip the “unborn” of all protection, but that is wrong because the amendment conferred “equal” status on foetal life, and so removing it would remove this equality of status, rather than denying the State any power whatsoever to recognise or protect it.
What this means, in effect, is that a vote to repeal the Eighth outright is not a vote to liberalise abortion legislation, but a vote to remove constitutional impediments to legislative change – whatever that might be. We do not need a firm consensus about the shape of abortion law to agree on repeal. We only need to agree that the Eighth Amendment, taken in itself, is misguided. Removing it outright will not leave a legal vacuum, or even a great deal of legal ambiguity. It simply frees up the Oireachtas to do its job – or at least what should be its job in a normal, functioning democracy.
Pet project of the hard right
The perception that the Eighth Amendment needs some replacement – and that the alternative would be somehow irresponsible – is a highly eccentric view that has somehow been elevated to normalcy and respectability. It imagines, first of all, that regulating abortion in a Constitution is a normal and sensible thing to do. It is anything but. This emerged in the early 1980s as a pet project of the hard right, fuelled by paranoid reaction against modest liberal trends in the 1960s and 1970s. Almost no other constitution in the world regulates abortion in this way, yet today, in accepting the amendment needs some replacement, we have somehow allowed that fringe fetish of the 1980s to become our common sense.
Indeed, whatever one’s position on abortion, constitutions are remarkably unsuitable for addressing it. By their nature, they only facilitate general and vague provisions which, when applied to questions like abortion, generate huge and debilitating uncertainty. Courts are unsuitable (and unwilling) forums to interpret and clarify such principles as they apply in particular medical and other circumstances. And, crucially, when constitutions get it wrong, they are by their nature more inflexible than other laws, being quite cumbersome to amend or correct. Indeed the problem I have outlined is compounded by the fact that we already tend to entrust far too much to constitutional law. Counter-productively, we constitutionalise issues that should fall in the domain of ordinary political responsibility.
For now, however, what we need is greater public clarity on the consequences of a repeal vote. The people should not be asked to constitutionally enshrine a particular set of restrictions on abortions, but only to remove a constitutional impediment to legislative reform.
Eoin Daly is a lecturer in constitutional law at the School of Law, NUI Galway, and co-author (with Tom Hickey) of The Political Theory of the Irish Constitution (Manchester, 2015).