Speech by Ivana Bacik on Eighth Amendment Committee Report

17 January 2018

I welcome the Minister to the House, and welcome this important and historic debate. First - I, and my party, Labour, fully support the report’s recommendations, in particular the recommendation that the Eighth Amendment, Article 40.3.3, should be repealed simpliciter. We also support the recommendations for legislation on abortion if repeal is achieved – to allow termination where the life or health, physical or mental, of the pregnant woman is at risk; or in cases of fatal foetal abnormality. And we support the recommendation for legal abortion with no restriction as to reason up to 12 weeks through a GP-led service delivered in a clinical context.

I want to commend the members of the Committee for their considered engagement with the immense body of evidence presented to them, and in particular Labour’s Jan O’Sullivan who proposed the key recommendation for repeal simpliciter. I would also like to commend the Citizens’ Assembly which similarly heard expert evidence before making similar recommendations on the need to provide access to reproductive healthcare women clearly need.

In the brief time available, I want to deal with a number of key issues arising out of the Committee’s report and to say something about the referendum. First, to say something about the context: the Amendment, passed in 1983, has cast its shadow over an entire generation of women in Ireland. I am under 50, and was too young to have voted 35 years ago; but have lived all my adult life under its chill. My daughters are now growing up under the same chill. In 1989 I was taken to court and threatened with prison under the Amendment for daring to give information to women in crisis pregnancy.

During all those years, we have seen the devastating effect of the Amendment in a series of tragic cases – the X case, Savita’s case and so many others, and in the continuing outflow of women to England. And for all those years we have also seen a marked reluctance by legislators to address the real health needs of women and girls; an abdication of responsibility. Because of the Eighth Amendment, the long-awaited legislation passed in 2013 to implement the X case and allow for abortion on grounds of risk to life could only provide for abortion where a woman’s life was at risk – not for any other ground. It has saved the lives of 77 women so far.

But because of the Eighth Amendment, we could not legislate to allow abortion in cases of rape, nor where a pregnancy poses a serious risk to a woman’s health; nor even in cases where a baby is incapable of being born alive. Yet these are all real life scenarios where increasingly people in Ireland wish to see abortion access for women.

So the Committee’s report marks a refreshing change; legislators finally recognising practical reality. They give three key reasons for recommending repeal:

  1. The impact of the Eighth Amendment in the provision of services to pregnant women, particularly relating to the timing of critical decision-making in saving a woman’s life;
  2. Continuing and ongoing breach of Ireland’s international human rights obligations as evidenced in a number of cases including that of Amanda Mellett (Mellett v. Ireland, 9th June 2016, UN Doc CCPR/C/116/D/2324/2013),
  3. The practical reality that thousands of women are accessing abortion each year either legally through travel to the UK and abroad, and illegally by taking the abortion pill.

On the first reason; the preponderance of medical evidence to the Committee was clearly in favour of repeal. The Committee heard expert evidence from 20 leading health experts and bodies, including two current and two former masters of Irish maternity hospitals; and two national medical professional bodies (Irish College of General Practitioners; Institute of Obstetricians and Gynaecologists). Doctors told of their frontline experiences – such as seeing a woman bleeding as she miscarried, but being unable to intervene legally until there were sure there was no foetal heartbeat because of the Eighth Amendment; the issue in the tragic case of Savita Halappanavar.

These experiences formed the backdrop for the medical consensus that the Eighth Amendment is the central barrier to the provision of best practice reproductive healthcare in Ireland and should be removed. They said that the current law with its stringent criminal sanctions is overly restrictive and prevents doctors from being able to provide the highest standard of healthcare to pregnant women.

The Committee also noted the practical reality that abortion is happening in Ireland anyway. The criminalisation of abortion has not stopped women having abortion, but has made abortions unsafe, mainly through unregulated abortion pills purchased online and taken without medical supervision. Yesterday at a follow-up briefing here in Leinster House we heard from Dr Catriona Henchion of the IFPA and Dr Cliona Murphy, chair-elect of the Institute of Obs & Gynaes.

They told us that illegal abortion is now becoming the norm in Ireland, with estimates that up to 3,000 women may take abortion pills each year in Ireland - 1,748 Irish residents contacted one abortion pill provider, Women on Waves, in 2016 – despite the fact that intentional destruction of unborn life remains a criminal offence in Ireland punishable by up to 14 years imprisonment. This figure is additional to the 3,265 women who had abortions in England and Wales in 2016, and who gave Irish addresses. So we know about 5,000 Irish women every year are having abortions –since 1983, over 160,000 women have made the journey for abortion abroad.

As the Committee noted, abortion is an Irish phenomenon – the Eighth Amendment has not prevented abortion, merely compounded the crisis of a woman’s crisis pregnancy by forcing her to travel or face the threat of criminal prosecution.

Indeed many Committee members have said they were persuaded of the need to change the law once they learnt of the true extent to which abortion is already carried on here. Others found persuasive the clear evidence from international experts that abortion rates decrease after access is legalised, as post-abortion contraception may be provided to those in need.

Having decided that the Eighth Amendment was unfit for purpose, the Committee went on to recommend repeal simpliciter. They did consider the option of replacing it with alternative text as the Citizens Assembly had suggested; but following legal advice they made a clear recommendation that repeal was preferable to replace.

The Assembly had suggested replacing with a text empowering the Oireachtas to legislate unconstrained by potential judicial supervision, but the Committee stated it would not recommend removal of this important supervisory jurisdiction of the courts and that a provision such as that recommended by the Assembly would have too profound an effect on the doctrine of separation of powers.

Back in October 2017, a group of eminent practising barristers had written a letter to the Irish Times setting out very clear arguments for repeal simpliciter. They pointed out that following repeal, abortion would remain illegal in Ireland under the Protection of Life During Pregnancy Act 2013, in all cases except where necessary to save the life of the woman.

While amending legislation passed by the Oireachtas following a repeal of the Eighth Amendment would be open to constitutional challenge, as all statutes are, the express removal of the constitutional text in Article 40.3.3 would lead the courts to hold that the Constitution no longer speaks to the question of abortion. Even if the courts were to take the (highly unlikely) view that certain rights of the unborn might be implied into the Constitution, deletion of the Amendment would require the courts to defer to the legislature to determine how such rights might be best balanced with those of the woman. Thus they strongly favoured the option of a straightforward referendum to repeal the Eighth Amendment and stated that to hold a referendum based upon a ‘replacement’ text would be highly dangerous. Their experience of the extensive litigation that followed from the Eighth Amendment showed that the insertion of any text into the Constitution carries a high risk of unforeseen consequences. It would be very difficult, they said, to draft a replacement text that could provide the legal clarity available from a simple repeal referendum.

I hope that clear legal argument will carry weight with the Attorney General and the Cabinet. The recommendations of the Committee are evidence-based, clearly reasoned and legally robust. I urge the Minister and government to support them.

Minister, I want to put the case strongly for a May date for the referendum – we need to ensure maximum turnout and June is the wrong month for third-level students, secondary students and many others. We have waited long enough for repeal.

Finally, repeal of the Eighth Amendment has been Labour Party policy for many years; a policy driven by our women’s section within the Party. Labour is the party of social change; we have long taken stances on social issues like contraception, and divorce; Labour ensured marriage equality was passed. Now there is a groundswell of public support for a referendum on the Eighth Amendment. Let’s achieve repeal and end the chill – for the sake of our daughters and their generation.