Legal impact of repealing the Eighth Amendment

Sir, – Prof Gerry Whyte argues that a simple deletion of the Eighth Amendment from the Constitution would "most probably have to be interpreted by the courts as a statement by the people that the common good no longer required any constitutional protection for the right to life of the unborn" ("Abortion on demand the legal outcome of repeal of Eighth Amendment", Opinion & Analysis, September 28th). He extrapolates from that assumption that repeal of the Eighth Amendment would inevitably lead to "abortion on demand".

This argument, however, is fundamentally flawed. It assumes that a referendum would be held in a legal and political vacuum – without any indication as to what legislation the government would propose to introduce in the event of repeal. Yet in previous referendum campaigns, governments have provided clear information in advance as to what laws will be passed if a referendum succeeds.

The publication in advance of a Bill outlining time limits and grounds for lawful abortion, for example, would clearly inform the outcome of any referendum on repeal of the Eighth Amendment. That context would also have to be taken into account by the courts in any subsequent cases. Judges, like the rest of us, do not live in a vacuum.

If there is one lesson that we as a society should have learned over the 33 years of traumatic and tragic cases since the adoption of Article 40.3.3, it is that the Constitution is no place to regulate abortion. – Yours, etc,


Seanad Éireann,

Dublin 2.

Sir, – Prof Gerry Whyte argues that removing the Eighth Amendment from the Constitution may well be interpreted as being intended to remove all constitutional protection from the foetus so that any limitations on abortion in future law would be unconstitutional.

There is another possible outcome from a “simple” repeal – that the foetus might be said to have some constitutional rights that existed before, and go beyond, the right to life inserted in Article 40.3.3 so that these are not disturbed by removal of the Eighth Amendment. However, while both outcomes are possible, realistically speaking neither seems especially probable. One is an extreme interpretation of the removal of Article 40.3.3 and the other would seem to fly in the face of the sovereign will of the people expressed in a vote to remove it.

Furthermore, neither would be consistent with comparative and international best practice. Even in countries where there is no constitutional protection of the foetus, the law recognises a state interest in the preservation of foetal life that allows for regulation of abortion provided any limits that are implemented (such as time limits or “grounds”) do not unduly or disproportionately interfere with the rights of pregnant women. That is consistent with a rights-based approach to the regulation of healthcare in general, and the availability of abortion in particular.

It so happens that it is also consistent with the model abortion law that was drafted and published by a group of 10 feminist lawyers (including me) in 2015 and in respect of which, among other things, we recommended that it might be wise to include a positively worded right in the Constitution to bodily integrity and the right to self-determination in medical matters, making clear that nothing in the Constitution would preclude access to abortion as regulated by law.

That model law and an accompanying short explanation are available for all to read online ("Abortion Law Reform in Ireland: A Model for Change").

What Prof Whyte’s article, our 2015 proposal, and this response really illustrate is that the question of how we go about reforming the Constitution on the matter of abortion is a complicated one.

What seems vital is that we do not let political expediency override the need for care and attention to be paid to the constitutional text. We did that in 1983, and we all know where that got us. – Yours, etc,


Birmingham Law School,

University of Birmingham

Edgbaston, Birmingham.

Sir, – I enjoy reading Fintan O'Toole's column, and found his most recent to be funny, disturbing and misleading, the latter deliberately so I suspect ("Anti-abortion 'zygopaths' make a mockery of equality", Opinion & Analysis, September 27th). He starts by creating a new word (zygopathic) and then proceeds to give a new definition to life, stating that it is "a process" and that humans are the "accumulation of millions . . . of moments . . . of physical development and growth". Furthermore, he seems to indicate (and in a sneering swipe at those who believe otherwise ) that the developing embryo is "just" a zygote until it suddenly becomes a human and then, and only then, starts its process of life.

Your columnist is an intelligent man and he surely knows that a zygote is a single cell for only a brief time, and then begins to develop and grow rapidly – or, in O'Toolespeak, begins its "life process". He knows that the zygote stage has been left far behind before one even knows a pregnancy has commenced. He knows how early in utero the developing embryo becomes a recognisable human form.

The content and tone of his second-last paragraph is pathetic. The term “savage impertinence” he then uses is equally applicable to the denial that a developing embryo has life, and is therefore effectively worthless.

I think it is time for Fintan O’Toole, and all those who believe like him, to start defining when life starts, and up to which stage in pregnancy they believe abortion should be freely available. I have yet to hear anyone admit that they want abortion on demand, but equally I have yet to hear anyone state clearly what limits they would apply.

By erroneously repeating that human life does not begin until the third trimester, those who favour abortion are gradually desensitising the public to the real tragedy that is abortion, a tragedy that applies equally to both parties. – Yours, etc,