The discourse around the Eighth Amendment

Like many people in Ireland I’ve been thinking about the Eighth amendment a lot lately. Not surprising given that at the time of writing we are facing into a referendum on whether to retain or replace the Eighth amendment with wording to give the Oireachtas (our parliament and upper house) the ability to legislate for abortion without constitutional interference.

So, what is the Eighth amendment?

The Eighth amendment is what article Article 40.3.3° of the Irish constitution is better known as. It was placed in the Irish Constitution (Bunreacht na hÉireann) in 1983 by referendum. The article itself 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.

The wording sounds fairly innocuous, not something that is actively harmful. Unfortunately, in practice this is not the case. The result of this wording is that in medical situations involving pregnancy, where issues can arise extremely quickly; medical practitioners must treat the child the same as the mother. The pregnant mother therefore is not prioritised in the same way as they would be in the health systems of other countries.

What priority does the mother get then? In Ireland currently a mother has to be in mortal danger before the mother’s right to life is vindicated over that of the child. I am using the word child for a specific reason here. I don’t particularly want to get into arguments about semantics, this wording can be understood by both sides of the debate. Given that the life of the mother must be in mortal peril before they receive medical treatment that would endanger the life of the child this creates an unusual medical situation where the lives of the mother and child are pitted against one another from the moment of conception by our constitution.

Now, when we have reached a point where emergency medical situations require doctors to act as constitutional lawyers in making medical decisions there is clearly an issue. This I have observed is something that both sides can and do agree on. As a result of issues of this nature coming to light, the government brought in legislation for this specific situation. The Protection of Life during Pregnancy Act 2013. This piece of legislation fitted within the Eighth amendment as it currently stands.

It has been often said by those who oppose abortion, that perhaps this is enough and that we should go no further. In a medical setting however, at what point does the mother’s life reach mortal peril? We are still left with medical practitioners having to make decisions with an eye to the constitution and having to decide when a mother is ill enough to be close to death. What about situations where the mother’s health is damaged, perhaps permanently? What if the mother has a progressive illness such as cancer which if left untreated will lead to a lethal, but importantly, not immediate progression of the illness and death? These unfortunately are not hypothetical questions. Mothers in Ireland have been denied cancer treatment or have had their cancer treatment delayed because of this balancing act that medical practitioners are currently forced to perform.

There still are problems then, and at this point we have reached the limit of what the Eighth amendment will allow. I think that it is reasonable to say that most people would agree that things need to improve beyond our current situation and the Oireachtas is not able to legislate beyond the problematic point of mortal peril that we are currently at.

This is where the referendum comes in. We cannot have a healthcare system that takes care of mothers until such a time as the Eighth amendment is removed from the constitution. There is no way around this.

There’s a word that we use a lot in Ireland. Sound. It can be used as a descriptor of a person, or alternately as a way of acknowledging that someone has gone out of their way to help you. Sound.

The discourse surrounding abortion in Ireland has been unsound in most meanings of the word I would say. If I were to characterise the discourse, ‘strategic’ is the word that I would use. Often it feels like a long drawn out debating society argument. Though there have been mothers who have suffered and died due to our current situation, often the commentary takes place in the realm of the hypothetical. The argumentation we are presented with is tactical and point-scoring. As a former debater (yes, yes, I know) I can see why somebody who is against abortion would tactically decide to try and prevent any change from occurring at all. If we are to view this issue as a zero sum game that one side wins and the other side loses then this strategy makes sense.

We have a lobby in Ireland that tried to prevent the Protection of Life During Pregnancy act going through. Yes, the one I talked about above that only is used in medical emergencies where the mother is in danger of immediate death. This is a logical thing to do if you are intent on being on the winning side of an argument set around a thought experiment. From the point of view of vindicating the right to life of all people in Ireland however, this does not make sense. We are not in an elite chamber debating a hypothetical.

I have spoken about the medical situation in Ireland. There is a second important part to the Eighth amendment which is that the right to life of the unborn must be defended by the State. And so the State ‘guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.’

Again, this sounds innocuous. As a philosophical statement we would all like the State to vindicate people’s rights. However, as this is in the constitution we run into an issue. If the State is going to protect the right to life of the ‘unborn’, that is, the child being carried by the mother, then it has to action that. As the child’s life is the same as that of the mother from the point of conception, what this means in practical terms is that, in Ireland, procuring an abortion carries a 14 year prison sentence. Irish people have the right to travel, and the right to information relating to that travel. These rights were inserted into the constitution through referendum in 1992. But they cannot have an abortion in Ireland unless their life is in immediate danger. As the Eighth amendment is written there is no way to remove this element of criminalisation.

This next part deserves a clickbaity title I feel. So; There Is Something That Both Sides Of The Irish Abortion Debate Agree On And You Will Never Guess What It Is.

The big, open, secret of the Irish abortion debate is the following; Nobody wants to see people actually being imprisoned for having an abortion in Ireland. A minority report was compiled by individual members of an Oireachtas committee who wanted to express their views on why no change should be made to the Eighth amendment. In this report, they state the following;

There have been no prosecutions prior to or under the Protection of Life During Pregnancy Act 2013, for either women or doctors

and also;

The retention of a criminal offence in the context of abortion is necessary to deter actions which can hurt individuals and end the life of the unborn child.

So in Ireland we have a situation where those who are against changing the Eighth amendment are arguing that a criminal offence should stay in place on the understanding that this criminal offence wouldn’t actually be enforced. This understanding is not a way to make law, or at least, good law.

In what other area of law would elected representatives tell people that a criminal offence shouldn’t really be enforced but it should still be defined as a crime?

The answer that is generally given is that a severe punishment creates deterrence, and that deterrence will prevent the need for enforcement. But is this how other laws are written? Shouldn’t laws also be proportional and fair? More importantly, while these offences remain within the law and are backed up by our constitution they are enforceable. Perhaps we can assume that our current government would not enforce them, but what if we were to get a government that would enforce them? In a time of Trump and Brexit this is not a scenario that is beyond the realm of possibility. Similarly, people have been arrested and imprisoned for procuring abortions in Northern Ireland. This is something that is an ever-present danger while the Eighth amendment still exists.

The discourse then that we are having is based on hypotheticals and assumptions. Those who are against abortion have tactically adopted the stance of defending the Eighth amendment absolutely. Their argument is that every human life has an absolute and equally weighted value. A life is a life and the life of the unborn child must be brought into independent existence outside of the body of the mother regardless of the suffering or risk of death that the mother is exposed to. Furthermore, as the child’s life is equal to that of the mother’s, the deliberate ending of that life is considered to be murder on the part of the mother. Even if this aspect is not enforced, they argue that abortion should still be legally considered in this way by the State. In framing the discourse in this way we are missing an opportunity for a real discussion about how we as a society value life. We are instead discussing a ban on abortion only and not alternative ways for the State to more effectively value and support life. I wish that those who are most vocally against abortion had not boxed us all into this corner because there are elements that we all can agree with. The life of the mother should be protected, in a real way, informed by best medical practice. People should not be arrested and imprisoned for 14 years for having an abortion in Ireland. We would all like the State to vindicate the rights of everyone.

We as a society can decide collectively that the Eighth amendment does not fulfil these criteria and introduce legislation that does not have the avoidable deaths of mothers as an inbuilt trade-off. Those against abortion are unwilling to have a discussion on this basis and truly find a way to vindicate life.

There is a constituency that exists in the hearts and minds of all opinion piece writers and political commentators. I of course speak of The Middle Ground™. The Middle Ground™ fears many things, most of all the Extremes from Both Sides Of The Debate which will make them Turn Off The Debate. I personally have not met someone from the The Middle Ground™. Perhaps they only speak to journalists and I’m missing out here.

The people I have met instead are, like myself, trapped in this hypothetical debate we are having. I think that we can all agree that our current situation is flawed. However, we are all being done a disservice by the current national discourse. Rather than a national discourse framed around how we can improve our current situation and what active role the State can take in vindicating the rights of all (improved child care, restoring the lone parent allowance, better sexual health and relationship education, reducing instances of rape, funding social services, increasing the number of social workers, better maternal health care and the right to choose birthing services, funding more services and provision for people with additional needs, access to contraception, better parental leave and workplace conditions…. I could go on) we are instead having a debate where those who want things to remain as they are have decided to defend the indefensible, making no concessions whatsoever and relying on muddying the waters to make their points. This does not suprise me. When you are debating on shaky ground, particularly when you are defending the status quo, a common debating tactic is to try and confuse the listener and plant the seeds of doubt in their mind so they dismiss change out of fear. Tactically I understand why this is happening, but it is disappointing to see those who wish to defend life relying on fear to defend a flawed law when there are real and positive changes that can be included in the discourse that we are having.

Ultimately, the people I have met are sound. The majority of these people won’t have abortions themselves, no matter what comes next. They themselves will decide that. They may not like the idea of abortion, but nobody that I have met would physically stop someone that they know and love from having one when they have made that decision. The Middle Ground™ may not be sound, but the people of Ireland are. I am struck by this in many of the stories that I have heard about abortion. Families and friends are a part of these stories. Men are a part of these stories. Mass-going Mammy or Daddy sometimes feature in these stories, giving money or lifts. Granny and Grandad when they appear have listened with cups of tea. The girls at school and the lads at work have corroborated the “shopping trip” excuses for a flight or ferry to the UK. Husbands and partners and boyfriends have fought against our legal system and despaired silently at bedsides because ‘there’s nothing more that can be done’ and both mother and child are lost. These are all people we know who are just doing their best and helping someone they love in a tough situation.

This happens everyday in Ireland.

There are stories I haven’t heard. Some people can’t tell anyone and make the journey alone or they risk 14 years in prison to have an abortion at home. They too are watching this debate and wondering if there is ever a time when they can tell anyone.

This too happens everyday in Ireland.

For this referendum what I would say to someone who is unsure is that you may not approve of abortion, and an abortion is not the decision that you would make for yourself. That’s ok. Nobody is asking you to like abortion or to have an abortion. What you are being asked is whether you would stand in someone else’s way when they have made their own decision to have an abortion. I don’t think many people would, and so you are being asked to vote to remove the Eighth amendment from our constitution.

Sound.