The Legal Reality of the 8th Amendment

Last week I published a pretty lengthily multi-pointed argument, but it was so long I don’t trust anybody but the most patient or those who already agree with me to read it – and that’s fine. Polls show most of us are pretty certain of our views on the upcoming referendum anyway, but I’d ask that you look closely at one more thing before taking to the booth. The most important thing: the legal wording and mechanism currently in place and how it’s absence will be dealt with.

The Constitution’s 8th Amendment currently reads:

“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.”

I have to wonder how many of us actually know what the 8th Amendment’s wording is. This is the first time I’ve read it in three years, myself. Yet it’s the most important point of whether one chooses to vote Yes or No. This referendum isn’t about women’s rights, babies rights, or whether abortion is okay or not – it’s about the words of the Amendment. It’s about the results, both foreseen and unforeseen, the removal of this amendment will have on THE LAW.

Constitutions are important. They’re the framework of a Democracy – standards for any legislation or court decisions to follow which protect the people and the land itself from politicians and judges casually changing the law to suit their transient needs. We’re having a referendum because, collectively, we’re the sole holders of the right to change it.

I would like to argue for the changing or replacing of the 8th Amendment before considering its complete removal – because, by the way, the amendment is convoluted nonsense. Without the 8th Amendment, unborn children have absolutely no Human Rights whatsoever – period. I’m not talking about 12 week old unborns not having rights – none of them whatsoever, until they receive a Birth Certificate, will have the protection of law. This is how the law works. Without an explicit statement declaring the right of a person, they have no rights at all. Any that are given to the unborn after the fact will be at the whims of whichever gang of criminals occupy Leinster House from year to year or can be changed by sheer mob rule. Without this protection in place, the No campaigners are not exaggerating when they fear abortions being available on-demand until birth. If the current set of gangsters ruling us and the mob outside Leinster House decide one day that any reason for abortion is good enough, then that will become the law.

As it stands now, the Constitution protects the right to life of the unborn child only so far as the right to life of the mother is not infringed. What more could you want? The Yes campaign advertises on the public level the need for Repeal on the basis of saving lives – yet that is already provided for. A sleight of hand seems to be in effect as they point to the number of women having to travel to England for an abortion – these women are not travelling to England to save their own lives, but instead to terminate an unwanted pregnancy. How are we supposed to vote properly on May 25th when so few people are honest with us in regards to the nature of our vote?

By removing the 8th we will effectively have less restrictive abortion laws than England itself. This will expose us to a slippery slope as we can see abortion is already being normalised as a form of contraception by the Yes campaign themselves. You can read further on the legal implications at rights.ie, a set of assessments and statements, signed by a large number of Judges, barristers, UN Human Rights Commissioners, and other high standing professionals in the fields of Law. They see absolutely no impediments left, after the 8th is repealed, that would prevent abortions being available up until 6 months.

I will read here their most frightening prognostication:

A ‘Yes’ vote in the coming referendum would remove all constitutional rights from the unborn child up to birth, and in their place, would give the Oireachtas an unlimited power to legislate for abortion.

The Government have published their plans for legislation and we, together with more than 175 of our colleagues in the legal profession, have signed and published a statement which makes it clear that these proposals will open the door to abortion in wide-ranging circumstances.

The reason for our conclusion is that the Government proposals provide for abortion for any reason up until 12 weeks and for abortion up until viability (that is, where a mother has carried her child for up to 6 months) for reasons so similar to the legislation in Great Britain that there is no rational basis for thinking that they would operate differently :

  • Legislation in Great Britain refers to a risk of injury to the physical or mental health of the mother. This Government’s draft legislation refers to a risk of serious harm to the physical or mental health of the mother. The similarity between the two is immediately obvious;
  • Mental Health is not defined in the proposed legislation. In Great Britain the overwhelming majority of abortions are carried out on the mental health ground;
  • “Serious harm” is a far more general and imprecise term than “injury” which is the basis of a legal entitlement to an abortion in Great Britain;
  • Under this Government’s proposed legislation, medical practitioners need only be of opinion that the carrying out of an abortion is “appropriate” and not as one might have expected, “necessary”;
  • The main dissimilarity between the abortion legislation in Great Britain and the Government’s proposed legislation is that, in Great Britain, the legislation is more restrictive since there is no 12 week period, as is proposed here, during which period an abortion can be carried out for any reason.

Where a healthy mother requests the abortion of her healthy baby after, say, 21 weeks because she believes that the stress of carrying the baby to term poses a risk of serious harm to her mental health, the effect of this Governments’ proposals is made clear. Furthermore, the statements of a number of prominent experts campaigning for a ‘Yes’ vote confirm that the result of the legislation will be abortion on request.

Our original statement, which we signed along with our colleagues, pointed out that legislation can be changed at any time without the consent of the People or may be challenged in the courts.

Signed :

Iarfhlaith O’Neill
Former High Court Judge and Chairman of the Referendum Commission (Lisbon Treaty)

Aindrias Ó Caoimh
Former High Court Judge and Judge of the European Court of Justice

Margaret Cordial
MSc (Int. Human Rights Law NUIG) Barrister, Solicitor Formerly with the UN High Commission for Human Rights and Advisory Counsel with the Attorney-General’s Office. Author of Circuit Court Rules : Practice and Procedure

Venetia Taylor
LL.B LL.M Barrister

Benedict Ó Floinn
MA (Oxon) Barrister
Author of Practice and Procedure in the Superior Courts, Former Member of the Education Committee of the Kings Inns and the Expert Committee on the Courts Acts.

Rights.ie “More Info”

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