Eighth Amendment: a watershed on abortion

One of the peculiarities of the Irish debate on abortion in the early 1980s – a debate that was to culminate, but not find resolution, in the Eighth Amendment to the Constitution – was that it was the anti-abortion side that set the terms. In the United States and mainland Europe, the momentum in those years was generated by pro-choice lobbies, but in Ireland the current moved in the opposite direction. Those who sought a more restrictive regime initially did all the running, and in time, by out-organising their opponents on the ground and skilfully playing politicians off against one another, they succeeded in having a ban on abortion written into the Constitution. Their fear was always that future, more liberal judges or politicians could move ahead of public opinion and pave the way for legal abortion.

The decision by members of the Oireachtas Committee on the Eighth Amendment yesterday is a watershed that shows how attitudes to abortion have changed in ways that were unimaginable 35 years ago. In 2017, the momentum for change has once again come from civil society, but this time it is a liberal movement filled with men and women who were not even born in 1983. Contrary to the fears of anti-abortion leaders all those years ago, it is the public that has moved ahead of the State's institutions.

The committee’s recommendation that the Eighth Amendment be repealed – and not replaced – shows that the political system is finally catching up. The all-party hearings have at times been tense and difficult, but they have also been a model of evidence-based, deliberative politics in action. TDs and Senators have listened to experts, probed the policy dilemmas and learned about the lived experience of women under the Eighth Amendment. Some members were swayed by the evidence – notably on the prevalence of abortion pills and the legal difficulty in specifically allowing abortion in cases of rape – and changed their minds. The result is a more far-reaching set of recommendations than was widely expected. In this respect, there is a parallel with the constitutional convention and the Citizens’ Assembly, two public forums where members were given the time, space and information to arrive at a considered opinion.

These are not the conditions in which referendums take place, of course – certainly not a referendum on an issue as contentious as this. Be under no illusion: the campaign to come will be ugly, divisive and unpredictable. But the signs point towards public demand for a considerable easing of the constitutional straitjacket. In drawing up a referendum wording and draft legislation, the Government will understandably be influenced by its own assessment of what the public can be persuaded to approve. The committee’s decision is a signal that it has more scope than many believed.