Abortion Rights in Ireland: The Eighth Amendment and the Path to Repeal

In 1983 The Constitution of Ireland was amended by the Eighth Amendment of the Constitution Act, 1983, which added Article 40.3.3: “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.”  The legal effect of the amendment meant that the Republic of Ireland had a near complete ban on abortion.

Throughout the years there have been challenges and amendments to Article 40.3.3.  In the 1992 case Attorney General v. X (the “X Case”), a 14 year old girl who was a victim of statutory rape became pregnant. The girl, X, became suicidal due to the pregnancy, and the family planned on traveling to the United Kingdom to have an abortion.  The Attorney General of Ireland sought an injunction to prevent the abortion under provisions of Article 40.3.3 of the Constitution.  The injunction was granted in the High Court in February 1992.  This decision was appealed to the Supreme Court.  By a four-to-one vote, the injunction was overturned.  In its March 5, 1992 decision, the majority opinion held that a woman had a right to an abortion if there was a “real and substantial risk to the mother” and that the possibility of suicide was a risk.  However, the right to an abortion did not exist if the risk was to her health but not her life ([1992] IESC1; [1992] 1 IR1).

In response to the X Case, three amendments to the constitution were proposed and voted on by referenda held on November 25, 1992.  The Twelfth Amendment of the Constitution Bill, which would prohibit abortions even in cases where the pregnant woman was suicidal, was rejected.  The Thirteenth and Fourteenth Amendments were ratified.  The Thirteenth Amendment of the Constitution Act, 1992 added that subsection three “shall not limit freedom to travel between the State and another state.” The Fourteenth Amendment of the Constitution Act, 1992 declared that the State “shall not limit freedom to obtain or make available, in the State, subject to such conditions as may be laid down by law, information relating to services lawfully available in another state.”

In 2002, Ireland held another referendum for the Twenty-fifth Amendment.  This Amendment again attempted to remove the potential of suicide as grounds for an abortion.  This Amendment was rejected by 50.42% of the vote.

In 2013, Ireland’s laws on abortion were amended further by enactment of the Protection of Life During Pregnancy Act 2013.  This act legalized abortions when doctors deem that “there is a real and substantial risk of loss of the woman’s life from physical illness” and “that risk can only be averted by carrying out the medical procedure.”  This act also reiterated the legality of obtaining an abortion because of risk of life due to the potential of suicide.

Ever since the amendment was enacted, there had been campaigns to repeal the amendment.  Ultimately, on March 28, 2018, Irish Housing Minister Eoghan Murphy announced that on May 25, 2018, Ireland would hold a referendum on whether abortion should be legalized, specifically to delete the language of Article 40.3.3 and replace it with simply “Provision may be made by law for the regulation of termination of pregnancies.”  On May 25, 64.51% of eligible voters turned out to cast a ballot.  With a result of 66.4% voting yes and 33.6% voting no, Ireland effectively repealed the language of the Eighth amendment of its constitution.  When signed into law, the Thirty-sixth Amendment of the Constitution Act, 2018 (Act No. 29 of 2018) would abolish the ban on abortion and allow the Irish Government to legislate the allowance for abortion.

Currently, the Government plans to submit legislation to the Dáil that: allows abortion on request up to the 12th week of pregnancy (with a subsequently required three day “cooling off” period); between the 12th and 24th week, abortion will be permitted in cases of fatal fetal abnormality, a risk to a woman’s life, or risk of serious harm to the health of the mother; and after 24 weeks, an abortion will only be possible in cases of fatal fetal abnormality.

To learn more about the salient features of the Constitution of Ireland, read the Introductory Note commentary by Rainer Grote.