The case for repealing the Eighth Amendment


The Protection of Life During Pregnancy Act, enacted following the death of Savita Halappanavar, was meant to bring to an end the agonising about Ireland’s abortion regime and the long failure to legislate for the existing constitutional provision. The news that a vulnerable and suicidal young rape victim was denied an abortion in a timely way and ended up having a Caesarean section to deliver her baby prematurely shows that it has signally failed to do so.

The facts of the case, as we know them, are horrific. The young woman came to Ireland following a traumatic rape in her own country, resulting in pregnancy. She immediately told certain statutory authorities (though apparently not the HSE) she wanted an abortion. She was not directed to the appropriate medical services. Her circumstances were such that she could not travel abroad for an abortion, so she was forced to continue with the pregnancy against her will, as evidenced by the fact that she went on hunger and thirst strike. When she eventually obtained medical help she was found by the panel of experts to be suicidal, but they considered it was too late for an abortion and medical intervention, also against her will, became necessary to save her life and that of the child.

The Act is silent on the gestational stage at which an abortion may take place to save the life of the mother. It is also unclear about who is obliged to pass on to the appropriate medical authorities the clearly-expressed wish of a suicidal woman to have an abortion, particularly if she is vulnerable and has communication difficulties, as this woman had due to not being able to speak English. Its restrictions clearly bear most heavily on the most vulnerable.

But even if these matters are clarified by further legislation, the Act falls short of a growing consensus that the abortion regime defined by the Eighth Amendment and the subsequent Supreme Court suicide ruling does not meet the needs of women in crisis pregnancies. The Master of the Rotunda Hospital, Dr Sam Coulter-Smith, along with a number of politicians, has urged a further referendum to remove confusion on the issue in the context of rape and fatal foetal abnormalities.

The latest case demonstrates pregnancy as a result of rape does indeed lead some victims to consider suicide. Many more rape victims will wish to terminate the pregnancy, though they may not threaten suicide or embark on suicidal behaviour, and should not have to. A few courageous women have made the case for the right to have their pregnancies terminated where there was no chance of the foetus surviving outside the womb. The case for including among the referendums planned for next year one to repeal the Eighth Amendment in order to allow for abortion in the case of rape and foetal abnormality is now compelling.