‘What an appalling prospect for the future generation,” this column remarked in late August 1983, when it was becoming clear that the Irish people were about to vote to write a ban on abortion into the Constitution.
As a bitter campaign drew to a close, The Irish Times imagined, as did others in the liberal minority, a dark scenario in which the Eighth Amendment, far from offering the final word on abortion, would instead prolong and amplify a national trauma.
Lawyers would argue interminably about the meaning of an opaquely-worded amendment. Doctors would be left confused by it. Women would continue to travel abroad for terminations, in secrecy and in shame.
If anything, 35 years on, the Eighth Amendment has turned out to be more damaging than its critics in those febrile days dared imagine. Within a decade, the country was presented with the grotesque spectacle of a 14-year-old girl known as Miss X, pregnant and suicidal as a result of rape, as she was forced to go to the Supreme Court after the State intervened to block her from travelling for an abortion.
A constitutional provision that attempted the impossible – to give equal weight to the life of the mother and the unborn – was producing the unimaginable. Abortion was unconstitutional, the Supreme Court ruled, except where there was a real and substantial risk to the life of the mother, including by suicide. In other words, the amendment had failed to achieve even what its champions sought.
The Eighth Amendment elevated hypocrisy to the status of constitutional principle. Within months of the X case, the people voted to add two new articles to Bunreacht na hÉireann: one allowed for the distribution of information about overseas abortions, the other explicitly assured women the right to go abroad for terminations. Into the glossary of dark Irish euphemisms went the verb “to travel”.
Since 1992, then, the Constitution has recognised the right of an Irish woman to have an abortion. But unless she is at risk of dying, she must have it somewhere else. Ten women do so every day of the week. At least three others order the abortion pill online, and take it without any medical supervision.
This is the lived reality of the Eighth Amendment. It means that a woman who becomes pregnant by rape in Ireland must have the baby. It means that couples who receive the devastating news of a fatal foetal abnormality must take the lonely journey to England if they wish to end the pregnancy. It means, as the High Court heard in the case of Miss P in 2014, that doctors can find themselves standing at the bedside of a clinically dead and pregnant young woman with a copy of the Constitution in their hands, trying to figure out if they are breaking the law by switching off life support.
In this referendum campaign, no group of voters has a monopoly on compassion. Across the State, good and caring people are wrestling with a complex issue, and will continue to do so long after Friday's vote. Many will vote Yes reluctantly, knowing that repeal need not in itself imply a personal endorsement of abortion yet persuaded that others should be free to make their own choices. For many years, opinion polls have consistently shown strong public support for a regime that would allow for terminations in cases of rape and fatal foetal abnormality. At its hearings earlier this year, the Oireachtas Committee on the Eighth Amendment heard consistent legal advice that allowing for abortions only in those limited circumstances would be unworkable.
The committee’s proposal, adopted by Government in the scheme of a Bill published on the eve of the campaign, is for abortion without restriction up to 12 weeks of pregnancy, and when a mother’s life or health is at risk. It’s a reasonable proposal that would bring Ireland closer to the European mainstream. The No side argues that politicians cannot be trusted on the issue, but that amounts to saying that we cannot trust ourselves. And that’s not good enough.
The Constitution is no place for abortion. That was clear in 1983 and it is even clearer now. The Eighth Amendment describes a world that never existed – a place of moral absolutism, religious certainty, good and evil, black and white – and locks us into that illusion in perpetuity. To remove it is merely to reflect the world we live in: a contingent, uncertain place, full of messiness and ambiguity, where the distances between happiness and despair, public joy and private anguish, are agonisingly small.
With a Yes vote, we can reject a worldview that relegates a woman’s bodily autonomy below the right of the State to tell her it knows best. We can bring an end to the secrecy and the shame. And we can embrace a more generous idea of the State itself.
Repeal the Eighth.