The Citizens Assembly took TDs by surprise last weekend. In truth, it took many of us by surprise. Although it had been clear for some time that most members felt the Eighth Amendment was unsustainable, the extent of the desire for change was striking.
The combined votes over the weekend clearly indicate that the assembly wanted to empower the Oireachtas to legislate for abortion without undue limitations in the Constitution, and that this legislation should be truly progressive. Having listened to a wide range of experts, from medics who treat pregnant people in Ireland and from Ireland who access abortion care in the UK, to a range of advocacy groups, to women who have and have not chosen to end their pregnancies, and to the stories told in the 12,000 submissions sent to them, this collection of people – none of whom were affiliated with any advocacy groups about abortion – reached firmly pro-choice conclusions.
Through their votes, assembly members clearly endorsed passing law that actually relates to the experiences and needs of women in Ireland. To do this, they astutely recommended both changing the Constitution (to make clear such law was permitted), and advised the Oireachtas as to what legislation following a successful referendum might provide.
It is no wonder that this took politicians by surprise. Previous polls had suggested a more limited pro-repeal position among the electorate, and the public sphere has been dominated by sharp debates for years. However, the assembly heard a wide range of information and perspectives, took its time, engaged in deliberation, and had a serious debate about reproductive autonomy of a kind that has rarely been possible in recent decades in Ireland. Having done that, it reached a range of pro-choice conclusions.
Since 1983, the Constitution has insulated politicians from having to make hard legislative decisions about abortion. As a result, while many politicians have expressed “broad” positions on the Eighth Amendment, most have not had to have detailed, demanding conversations with constituents about their views. The Oireachtas has never had to spell out which women will or will not be permitted to exercise their autonomy in this country; they have always been able to point to the limitations imposed on them by the Eighth Amendment.
The assembly’s recommendations demand that this security blanket be removed; that politicians be compelled to spell out which abortions are permitted, which are not, and why.
Nobody underestimates the challenge that this poses. Many people find it difficult to reach their own, personal, moral positions on abortion. Moving past those personal positions, as a legislator, to decide which unwanted pregnancies the State should compel women to bear is likely even more challenging. However, people elect politicians to make difficult decisions. The first step is to consider the assembly’s recommendations in the Oireachtas committee established for that purpose.
It has already been reported that some politicians consider the committee’s purpose to be to water down the assembly’s proposals. This is a curious way, indeed, to think about the role of a committee established to consider the views of an assembly the Oireachtas itself established, and it is hard to see it as anything other than contemptuous of the process and the assembly members.
So what is the committee for?
Of course, it is not slavishly bound by the recommendations of the assembly, but surely its purpose is to take the broad recommendations and consider how they might be given practical effect.
The committee might, of course, decide not to endorse some elements of the assembly’s proposals, but they should commit themselves to the decidedly pro-choice spirit of those proposals and demur from them only where international best practice suggests they are unworkable or would have undesirable unintended consequences, or where they are incompatible with international human rights law.
For example, the assembly proposed making abortion available in cases of rape, but international experience shows us that express “rape grounds” harm women who often have to prove they were raped, or report their rape to a prosecutor, causing delays and trauma. Many countries instead ensure that women who have unwanted pregnancies from rape can access abortion under other grounds, such as health, without exacerbating that trauma. It would not be unreasonable, then, for the committee to express concerns about the workability of this proposal in practice while making sure that those who have been raped can still access abortion if that is their desire.
The assembly clearly called for the State to fundamentally rethink its legal approach to abortion. Surely, the role of the committee, rather than frustrate that demand, is to inform the Oireachtas of the options for doing so.
Otherwise, one might reasonably ask whether the Citizens Assembly was simply a stalling tactic all along.
Fiona de Londras is the Professor of Global Legal Studies at the University of Birmingham and has done work with Lawyers for Choice.