Ireland’s 8th Amendment: Repeal or Retain?

2018 marks the 35th anniversary of the passage of Ireland’s ‘8th Amendment’. It may also quite possibly mark its demise.

So what is the 8th Amendment? The ‘8th’ is a provision of the Constitution of Ireland 1937, specifically Article 40.3.3°, in which the Irish 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.” A referendum in 1983 enacted the provision, with just under 67% of the electorate voting in favour (albeit on a relatively small turnout of 54%).

The Irish Government has recently announced its intention to propose a bill to hold a referendum in May 2018 that, if successful, will repeal the 8th amendment. The Government proposes to replace the current wording of Article 40.3.3 with enabling language that will give the Oireachtas (the Republic of Ireland’s Parliament) freedom to legislate for the termination of pregnancies. Rival campaigns are gearing up for ‘Repeal’ and ‘Retain’ respectively.

The legal impact of the 8th Amendment

The 8th amendment effectively constitutionalises Irish law on abortion. This means that an abortion is only permitted in the Republic of Ireland where allowed by the Constitution. In Attorney General v X (1992), the Supreme Court interpreted Article 40.3.3 as permitting a termination of pregnancy where, but only where there is a real and substantial risk to the life of the pregnant woman that only a termination of pregnancy can avert. This includes where there is a real and substantial risk that the mother will commit suicide.

The precise rules for determining whether a woman can have an abortion in Ireland are laid out in the Protection of Life During Pregnancy Act 2013 ...

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