The Eighth Amendment: Repeal it? Retain it? Replace it?

The Citizens’ Assembly makes its recommendation on abortion to Government this weekend

There are worse places than the Grand Hotel in Malahide to debate the most protracted and incendiary issue in Irish public life. This Georgian-era hotel affords beautiful views across the Malahide estuary for those who have the time to enjoy them.

Since October 2016, 99 randomly-chosen citizens have been travelling from all parts of Ireland to spend weekends at this hotel. They have not been the only ones making the journey; there has been considerable international interest in the process too. News crews from Germany, South Korea, Switzerland and the Netherlands have covered the weekend sessions – keen to observe this exercise in participative democracy.

This will be the citizens’ fifth and last weekend debating article 40.3.3, the Eighth Amendment to the Irish Constitution, which is a de-facto prohibition on abortion in the country.

For many of the 99 citizens, their attendance is a minimum commitment. They have read and reread the expert advice given to them and some of the thousands of public submissions.


Rubber stamping

If some regular campaigners in this national debate had their way, these citizens would not be here at all. Elements of the anti-abortion campaign have made it clear from the beginning that they regard the assembly as a mere rubber-stamping of a pre-determined outcome: the repeal of the amendment.

People on the pro-choice side have described the assembly as a superfluous exercise to deflect from the reluctance of the political classes to deal with the issue of abortion once and for all.

The Irish public are used to hearing certitudes from both sides in the debate. This process has featured the views of a section of the public who have few preconceived views on the issues and have more questions than answers.

But over six months, the assembly’s deliberations have been conducted in a spirit of genuine inquiry without the rancour that often surrounds this debate.

The members, who sit at 14 round tables, have heard from experts on the issues of fatal foetal abnormality, rape and what abortion regimes are in place around the world. They have heard from women who have travelled to the UK for abortions and from those who provided those abortions, from a doctor in the US who deeply regrets his former role in providing abortion services and from women who have no regrets.

The citizens have debated the merits of a random sample of 13,500 public submissions made to the assembly

They have been told of how ante-natal testing in Iceland has resulted in no baby being born in the country with Down syndrome in recent years, but they have also heard from an angry mother who has a child with the condition who feels the issue is being used to promote the anti-abortion side.

The citizens have debated the merits of a random sample of 13,500 public submissions made to the assembly, proof, if any was needed, of the passions engendered by this issue.

Experts have come from Ireland, the UK and the US. Their presentations are broadcast live and put up almost immediately on YouTube. Written copies of the presentations are also available online. Consequently the audience for this assembly has been much wider than the number that fit in the ballroom of the Grand Hotel.

‘Upmost importance’

The citizens' deliberations concluded with a paper by Brian Murray SC which was identified by assembly chairperson Ms Justice Mary Laffoy as being of the "utmost importance". She urged the citizens involved to consult it "night, noon and morn".

His paper crystallises the choices available to the citizens. They will first be given the option on Saturday morning of voting to retain the amendment. Should they choose to retain the status quo, the citizens’ deliberations will then be at an end.

Alternatively, they could opt for repeal or reform. If they opt to recommend repeal of the amendment, they may add that it ought to be up to the politicians to legislate for abortion.

They could suggest keeping the amendment by amending it to allow for a more liberal abortion regime. Another option would be to deal with it by publishing a Bill that would be enacted in its entirety if article 40.3.3 was amended.

Ms Justice Laffoy has been collating the written observations of the citizens as to how they will proceed. There will be a series of ballots on the different options and a majority vote will prevail.

She has made it clear to the members that they cannot simply recommend that article 40.3.3 be amended; they must come up with an alternative wording. The citizens’ recommendations will be sent to the Government, who must then decide if another referendum is merited.

After each presentation, the assembly goes into private session and the citizens debate what they have just heard. It is then opened up to a public question-and-answer session.

It is through these sessions that the thinking of the assembly members can be discerned.

Emotive arguments

At one session the citizens were generally scathing of the calibre of many of the public submissions and the emotive arguments made on both sides. They wanted solutions and “balanced arguments”, they said, and were unimpressed with submissions made from the anti-abortion side, which they said had a religious bias. One table was unanimously of the view that “they offered no solutions and they do not analyse or address the complexity of the situation”.

Anti-abortionists, for their part, took exception to the presence of Gilda Sedgh from the Guttmacher Institute in New York and Dr Patricia Lohr of the British Pregnancy Advisory Service. Justice Laffoy drew applause from the citizens when she said the speakers were there at the request of the citizens, who had asked for testimony about what happened to Irish women when they went abroad for an abortion, and about where Ireland's abortion laws fit internationally.

The final session of the assembly was overshadowed by the Tuam babies scandal. The sense of impartiality was broken by one citizen, from Tuam, who asked the Catholic Bishop of Limerick, Dr Patrick Leahy, how he reconciled the church's anti-abortion stance with the "horrific track record that the religious orders have when dealing with the most vulnerable, as you call them – the voiceless weak in our society historically".

If, as was intended, the citizens represent a random sample of the Irish public at large, they will recommend not to keep the status quo. Just 16 per cent of the Irish public want the amendment retained in its present form, according to the latest Irish Times poll, published in March.

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?”.

According to the Irish Times poll, two-thirds of the public (66 per cent) want the Eighth Amendment repealed, either to be replaced by another which would allow for greater access to abortion (38 per cent) or by giving the power to the Dáil to legislate (28 per cent).

However, successive opinion polls also suggest that the Irish public are not in favour of a liberal abortion regime similar to the one that operates in the UK.

Whatever decision the citizens make, it is likely to dismay some campaigners on both sides of this polarised debate. But the hope is that the ordinary citizen will have spoken, and that the participants in the forum will have done their duty.

It will then be up to the politicians to do theirs.