The Eighth Amendment – what would repeal mean?

Sir, – William Reville needs to check his definitions and his facts (September 30th). Labour published legislation last year that would provide for abortion to be legal in Ireland on medically certified grounds of risk to life, risk to health, rape and fatal foetal abnormality. Clearly, this Bill could only be introduced in the event of repeal of the Eighth Amendment. No other political party has yet published the legislation it would propose to introduce in the event of repeal. I would urge Dr Reville to read the Labour Bill, and also to read the English 1967 Abortion Act (which does not apply in the UK, as he asserts, since it has never been extended to Northern Ireland). The 1967 Act does not provide for "abortion on demand". Rather, it requires medical certification by two doctors of specific grounds for abortion. It should be added that this Act also effectively represents Irish abortion law because over 150,000 Irish women have had their pregnancies terminated under the English Act since the Eighth Amendment was passed. – Yours, etc,

Senator IVANA BACIK,

Seanad Éireann,

Leinster House, Dublin 2.

Sir, – I read with interest the contributions of my colleague, Prof. Ivana Bacik, and Prof. Fiona de Londras to the debate on the legal consequences of simply deleting the Eighth Amendment (September 29th). However, I stand over my original argument ("Abortion on demand the legal outcome of repeal of Eighth Amendment", Opinion & Analysis, September 28th).

Prof Bacik contends that in interpreting the people’s decision to delete Article 40.3.3 of the Constitution, the courts could have regard to draft legislation outlining time limits and grounds for abortion. I respectfully disagree. Unless the amended constitutional text contained some reference to any such draft legislation – in which case we are no longer talking about a simple repeal of the Eighth – I cannot see how such a Bill could be relied on to qualify what would otherwise be the clear decision of the people to withdraw constitutional protection from the unborn.

Prof de Londras points to countries where, even in the absence of constitutional protection for the foetus, the law recognises a state interest in the preservation of foetal life that allows for regulation of abortion. That proposition would certainly have applied to Ireland prior to the enactment of the Eighth Amendment, given that the people at that time had not made any decision in relation to constitutional policy on abortion. However in enacting the Eighth Amendment, the people determined constitutional policy on abortion, and if they decide simply to delete the Eighth Amendment, they will again be determining constitutional policy on abortion, albeit in a very different way. Faced with a decision by the people to remove constitutional protection from the unborn by simply repealing the Eighth Amendment, I cannot see how any legislator or judge could constitutionally deny a woman the right to terminate her pregnancy based on her undoubted constitutional rights to bodily integrity, privacy and autonomy. Restricting a right to abortion in such circumstances would have to entail extending some constitutional protection to the unborn in order to counterbalance the constitutional rights of the mother and that, it seems to me, would be at variance with a decision simply to repeal the Eighth Amendment. Nor could such legislation be justified as being in the interests of the common good, as the decision of the people to withdraw constitutional protection from the unborn would have to be taken as determining what the common good required in this situation. Again, in support of this argument, I point to the refusal of the Supreme Court in the Abortion Information Bill reference to qualify the outcome of the people’s vote on the 14th Amendment by reference to, in that case, natural law.– Yours, etc,

GERRY WHYTE,

School of Law,

Trinity College Dublin.

Sir, – I was startled to find from Fintan O'Toole's recent article that he has joined the ranks of the "creationists" ("Anti-abortion 'zygopaths' make a mockery of equality", Opinion & Analysis, September 27th). Rather than accept that human life begins at conception, he implies that at some stage along the development trajectory there is a transition from an undefined living organism to a human being. I am, of course, assuming that he agrees that immediately prior to birth the organism is human. It would be of great interest for us to know when he thinks this transition takes place, and whether there is a gradual or sudden change in the continuum, and any intimations he might have as to how this takes place. – Yours, etc,

JIM SHINE,

Dungarvan, Co Waterford.

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