The Citizens’ Assembly – a canny move on the road to repeal

The first signs that the Irish public were far more liberal about abortion than had been assumed came at the Grand Hotel in Malahide, following the deliberations of 99 citizens, few who had been involved in politics before.

Gathered under the umbrella of the Citizens' Assembly in November 2016, the 99, along with the chairwoman of the assembly, Ms Justice Mary Laffoy, had heard from 40 experts in medicine, law and ethics over five weekends.

They heard from six women directly affected by the Eighth, and from 17 deeply involved lobby groups. In all, they received 13,500 submissions, which were whittled down for brevity to a sample selection of 300.

By the end, they had an “almost uniquely comprehensive understanding” of abortion, said Ms Justice Laffoy. Despite a belief that they would opt for action on rape, incest and fatal foetal abnormalities, but no more, they confounded everyone.

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They emphatically rejected (87.3 per cent) the Eighth, saying it should not be retained. More astonishingly, or so it seemed at the time, 64 per cent voted for abortion “without restriction as to reason” up to 12 weeks.

For anti-abortion campaigners, the notion that randomly chosen citizens could listen to all arguments and reach such a liberal conclusion was appalling. Soon, they accused it of not being representative.

The sample size was too small, 11 counties had had no representation, they complained. The “pretence that the assembly is a remotely democratic process cannot be maintained”, Independent TD Mattie McGrath said.

Writing in The Irish Times, Prof William Binchy said: "Before it was established, the assembly was touted as representing a guide to politicians as to public opinion. It is now clear that it is useless in that regard."

Constitutional Convention

The assembly was first mooted in Fine Gael general election manifesto in February 2016, drawing on the template offered by the Constitutional Convention, which had recommended a ballot on same-sex marriage.

Then taoiseach Enda Kenny had noted that the convention had usefully taken the heat out of that issue, but abortion had a more troubled lineage. Soon, he was accused of stalling. Instead, it proved canny.

The No campaign's criticisms of the assembly were a serious mistake. If it had listened, they would have realised that the majority were repelled by the use of images of the unborn, and unmoved by religious arguments. Ireland had a problem with abortion. Solutions were needed.

During the second weekend of the assembly, 10 of the 14 tables answered “no” to the question “Should the right to life of the unborn child continue to be constitutionally protected in the same way as now?”

Rape and incest

In his evidence, law lecturer Tom O’Malley spoke about the difficulties dealing with rape and incest. Most rape cases take on average 645 days to get to court. In the end, the assembly leaned towards liberal abortion because of the complexities involved in introducing a more limited regime.

The paper identified as the most important by Ms Justice Laffoy was the one given by Brian Murray SC, which eventually formed the thinking behind the final decisions of both the assembly members and the Government.

Simple deletion

Having been told by Mr Murray that a simple deletion would not necessarily lead to a more liberal regime and the status quo might be maintained, the assembly did not vote in favour of repealing the Eighth.

Instead, they voted that it should be replaced with a "constitutional provision that explicitly authorises the Oireachtas to legislate to address terminations of pregnancy". Eventually, the Government decided on the same.

The assembly's judgments emboldened the Committee on the Eighth Amendment of the Constitution chaired by Senator Catherine Noone. In the end, 70 per cent of TDs and senators reached the same conclusion – unrestricted abortion up to 12 weeks.

The citizens proved not only to be representative of the country, but uncannily so. On Friday, 66.4 per cent of voters marked Yes on the ballot, knowing that there would be abortion without restriction up to 12 weeks.

The assembly, in the words of UCD professor of politics David Farrell, had proved invaluable in acquainting the political classes with the fact that the Irish public had become much more liberal in recent decades.

The “generational shift” had first become apparent in the marriage equality referendum. “The average middle-aged person in 2015 was more liberal than a young voter was during the abortion referendums of 1992,” he said.