Subscriber OnlyOpinion

Una Mullally: Oireachtas must act urgently on abortion mandate

There is a difference between complex constitutional issues and issues that don’t belong in the Constitution

Despite – or perhaps because of – the best efforts of all those involved, from the organisers to the citizen members themselves, what the Citizens' Assembly showed at the weekend is that abortion has no place in the Irish Constitution, and nor is the Constitution the effective or appropriate place for women's healthcare to be controlled. The Citizens' Assembly voted to completely remove the Eighth Amendment and replace it with a statement mandating the Oireachtas to legislate.

The lead-up to citizen members voting on recommendations on the Eighth Amendment (Article 40.3.3), exemplified the confusion of having a constitution exert power over the reproductive choices and rights (or lack thereof) of women in Ireland.

Their points from the floor, clarifications they asked for, and questions they posed, showed an impressive level of expertise and critical thinking

This is the difference between complex constitutional issues, and issues that don’t belong in the Constitution. There were prolonged requests for clarification on issues, on the very fundamentals of issues, revised wordings on ballots, serious questions asked about language and voting options on ballots, and so on.

What a job the citizen members had, and their points from the floor, clarifications they asked for, and questions they posed, showed an impressive level of expertise and critical thinking. They are a credit to this ongoing, crucial debate. But once again this discussion on reproductive rights begs the question as to why our legislators saw fit to kick this issue into touch, seeking a mandate from anyone but themselves, instead of taking in hand an aspect of constitutional change the Irish people clearly want leadership on.


In the end, the citizens recommended that Article 40.3.3 – “The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right” – be replaced with “a constitutional provision that explicitly authorises the Oireachtas to legislate to address termination of pregnancy, any rights of the unborn, and any rights of the pregnant woman”.

Landslide result

Eighty seven per cent initially voted that Article 40.3.3 should not be retained in full, a landslide result, which brought the members on to the next stage, where 56 per cent voted “Article 40.3.3 should be replaced or amended.” Fifty seven per cent then voted the Oireachtas be mandated to legislate on abortion, the rights of the unborn, and the rights of pregnant women.

Proposals to amend or replace the Eighth Amendment have always been contested by pro-choice campaigners, as the insinuation with that approach is that there has to be something in the constitution to police women’s bodies and healthcare. Yet what the Citizens’ Assembly is actually recommending, based on what they voted for, is an amendment that is the equivalent of an internet’s 404 error, when you search for a page that isn’t there and are told to look elsewhere – that elsewhere, being the Oireachtas legislation.

That proposed amendment could also potentially protect the Oireachtas from challenges in the courts were they to legislate further on abortion. In a way, what they recommended is a version of repealing the Eighth Amendment and then some.

This is also a messy debate. There are no "good" or "bad" abortions

On Sunday, the citizens were asked to offer their views on laws surrounding access to abortion. This led to another debate around issues regarding the physical and mental health of a pregnant woman being separated, and further wording added to the voting ballot, including socio-economic reasons. This is also a messy debate. There are no “good” or “bad” abortions. If one agrees with abortion in certain circumstances, then one’s issue isn’t with abortion, but the circumstances of conception, or the health of a foetus or the person who is pregnant. Choice and bodily autonomy are the fundamentals. Gestational restrictions create both emotional and arbitrary debates, and should be led by obstetric expertise. Regarding those restrictions, technically, the Protection of Life During Pregnancy Act already allows for terminations regardless of gestational age, if there is a risk of loss of life to the mother from physical illness or in an emergency or from suicide. Regarding the wording of “pregnant woman”, a person who is legally a man could also be pregnant, since the Gender Recognition Act has addressed the gender rights of transgender people.

No restriction

The key result of that vote was that there should be no restriction to accessing abortion whatever the reason. Sixty four per cent voted that this should be the case, with votes spread across up to 12 weeks gestation only (48 per cent of the vote), up to 22 weeks gestation only (44 per cent), and with no restriction as to gestational age (8 per cent). This indicates the Citizens’ Assembly believes it’s a woman’s right to choose.

Concerns that repealing the Eighth Amendment would lead to uncertainty could be applied to any uncertainty instigated by constitutional change. Legislation should and presumably will be in place before a referendum, so that people know what they’re voting for. That is crucial, because it helps prevent misinformation being spread during a campaign, although it does not stop it. Most recently, there was a complex legislative backdrop to the marriage equality referendum, which included the Marriage Bill 2015 pending enactment, the Children and Family Relationships Act, and clarity brought to what would happen to civil partnership laws. This legislation being in place allowed the electorate to understand what they were voting for when a referendum came around, despite misleading information from the No campaign.

So, where to now? We can’t keep playing out this debate. The recommendation is that it is up to the Oireachtas to legislate on abortion, and that a referendum would be changing the Constitution to remove Article 40.3.3 and replace it with an instructive and explicit direction for the Oireachtas to get moving. Every day, women are still criminalised in Irish law, and are still exiled on planes and boats to access healthcare in foreign countries. The Oireachtas must act, urgently.