‘No’ means we keep the Status Quo: A ‘yes’ vote is the only morally acceptable result in Ireland’s Abortion Referendum
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Posted on by May 24, 2018

Editor’s Note: Irish philosopher Sorcha Uí Chonnachtaigh is a long-time member of the Feminist Approaches to Bioethics Network, and writes for IJFAB Blog today on the upcoming urgent vote on whether to keep Ireland’s 8th amendment. As has long been noted, such total bans on abortion (which exist in other nations as well) primarily affect women without the means to travel to neighboring nations which allow abortion. Indeed, between 1980 and 2016, at least 170,216 women and girls traveled from Ireland to get abortions elsewhere. IJFAB blog authors have previously written on abortion in Ireland and on abortion laws in Tasmania, Spain, France, and more. What is the nature of the Irish law up for repeal tomorrow, and what are some reasons for thinking it should be repealed?

This image shows a giant orange heart spray-painted on a cinderblock wall, with colorful background from the previous layer of graffiti. In the heart in giant shiny red bubble letters are the words "REPEAL THE 8th." Around the heart is the phrase "Bodily autonomy for all..."

In 2016, artist Dara Kenny painted this mural on a wall in Arklow, Ireland, in support of the Repeal 8 campaign, which aims to get rid of the Eight Amendment of the Irish constitution and decriminalize abortion. (Dara Kenny/Facebook)

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Tomorrow, 25 May, at 7am, the polling stations in Ireland open for a historic referendum. For the first time since its insertion into the Constitution, the Irish electorate has the opportunity to repeal the 8th Amendment and, subsequently, permit abortion in cases beyond ‘real and substantial’ risk to the life of the pregnant person.
 
What is the 8th Amendment?

The 8th Amendment of the Irish Constitution, passed by referendum in 1983, did something relatively rare – it ascribed a right to life to the ‘unborn’ (human foetus) equal to that of the pregnant person:

 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.

A constitutional right to life places a significant obligation on the State. Furthermore, the 8th Amendment established a conflict between the rights of the foetus and the pregnant person because a foetal right to life must be vindicated within the body of the pregnant person. Abortion is only, therefore, permissible when a pregnant person’s life is at risk. This means that Ireland has one of the most restrictive abortion regimes in the developed world.

 
What happens when the foetus has a right to life equal to that of a pregnant person?
It is worth noting that it is not common for foetuses to have the same legal rights as post-birth human beings. Similarly, international human rights instruments ascribe human rights from birth, not before. Human rights arguments in favour of ascribing an absolute right to life to the foetus originate in (modern) Roman Catholic doctrine, which adopts human rights language without incorporating human rights principles.
 
The equalisation of the right to life for pregnant persons and foetuses necessarily sets the two in conflict and frequently prevents medical intervention in line with best practice. Pregnant people do not generally conceive of their interests being in conflict with their foetus (even those experiencing a crisis pregnancy) but as inherently entwined. In the 35 years since its introduction, the 8th Amendment has resulted (in whole or in part) in the following:
  •  compromised autonomy for pregnant people in the context of maternity care, particularly during child birth 
  •  the death of at least one pregnant woman
  •  fatally delayed treatment of pregnant women with cancer 
  •  delayed access to (even lawful) abortion for childrenpregnant as a result of rape 
  •  children and adults pregnant as a result of rape, women whose foetus has a fatal anomaly, and others who cannot face pregnancy and/or parenthood, travelling for abortion care (if they have the means)
  •  an unwanted Caesarean section in place of a theoretically lawful abortion
What is the referendum about?
Tomorrow’s referendum will ask people whether to repeal the 8th Amendment (by voting ‘yes’) or retain it (by voting ‘no’). A no vote will retain the status quo. Public debate has focused too much on the proposed abortion legislation (yet to be debated in parliament in the usual way), and not enough on the specifics of the referendum. Interviews with regular voters has revealed continuing confusion. The referendum and the legislation that could follow repeal of the 8th have been conflated such that it appears to be a referendum on the morality of abortion.
 
What the referendum proposes:
  • Repealing the 8th Amendment means removing the absolute right to life of the foetus from the Constitution and the extreme constraints on medical care and abortion for pregnant people in Ireland.
 What the referendum is not about:
  • The referendum is not asking people whether they personally believe abortion is morally acceptable.
  • The referendum is not asking people to insert abortion access into the Constitution.
  • The referendum will not strip the foetus of all value or legal protection.
  • The referendum is not asking people to introduce abortion to Ireland and retaining the 8th Amendment cannot keep abortion out of Ireland. It is too late for that; unregulated medical abortion pills are taken by an average of two women in Ireland every day. Abortion is a reality in the lived experience of those who travel abroad for terminations but live and work in Ireland.  
The left image shows half a woman's freckled face, with the word "Repeal" written in red marker on her cheek. The right image shows half a woman's face, but her eye is obscured by a logo button which she is holding with her hand. The logo has the word "love" above the word "both", and the two letter "o"s are stacked to make an 8.

To the left, we see an image from the movement to Repeal the 8th. To the right, from the movement to retain it. The contrast illustrates not only the messaging of each movement, but also the relative aesthetics and slickness of each campaign.

Is abortion a necessity or a convenience?
I would sincerely prefer that
  •  having a child didn’t negatively impact (where relevant) on a woman’s educational level, career advancement, and lifetime earning capacity
  •  condoms were affordable
  •  all forms of contraception were 100% effective
  •  no wanted foetus was ever diagnosed with a fatal anomaly
  •  no one ever developed a life-threatening condition during pregnancy
  •  child birth wasn’t -despite medical advancements- inherently dangerous
  •  no man ever raped a woman leading to a pregnancy
  •  no woman was ever in a controlling and abusive relationship
  •  rape wasn’t used as a weapon in conflicts, creating traumatised asylum-seekers who are sometimes pregnant
  •  asylum-seekers didn’t face years of limbo on direct provision
  •  pregnancy never led to long-term disability
In such a world, abortion may not be necessary. Until and unless we achieve these things, it is my view that abortion is necessary. There are some who disagree, who believe that our current reality results in unfortunate and difficult situations but that the foetus is innocent and that it is always wrong to take an innocent life. We have a situation in which different people hold conflicting but deeply-held views on this issue and a Constitution that recognises only one of them.
 
Is the 8th appropriate in the context of a liberal constitutional democracy?
In a diverse, constitutional democracy, the constitution sets out the structure of the State (and its agencies) and its relationship with its citizens. It is both inappropriate and unethical for one moral viewpoint to be privileged above others within the constitution. The 8th Amendment reflects a predominantly (if not exclusively) Catholic view on the status of the foetus, which is increasingly unrepresentative of the people from whom the Constitution derives its authority. The 8th Amendment is, thus, morally untenable; a majority must recognise this so that all moral views can be accommodated. 
Some of the content of this blog has also been posted at Sorcha’s university’s Medium blog in an effort to broaden the exposure of this argument.  

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