By Tomás Heneghan
Every once in a generation we as a country face a burning social issue: Divorce, abortion, same-sex marriage. But for our generation, growing up during one of the greatest economic crashes in the history of the State, we are facing into two of these burning issues. We are the generation who made global history, legalising same-sex marriage by public vote. Are we also to be the generation who undo the constitutional mistakes of the past?
Politicians from all sides of our Oireachtas are now calling, in unison, for one more historic constitutional change: Repeal of the 8th Amendment.
The Amendment reads:
“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.”
To many this statement appears positive, life-affirming and clear as glass. As we have seen however over the past 30 years, it’s far from the image the sugared words of the amendment would paint. Where there should be clarity in medical decision-making by doctors, there is confusion and fear. This exists because of the simple fact that no matter how clear we attempt to make our 8th Amendment, it is impossible to continue in its shadow with certainty.
Why is this? Pregnancy and all that goes with it is medical. For no other medical issue is there a constitutional provision setting limitations and outrightly setting a ban. Medicine is, by its nature, always evolving and many medical issues are never certain. Bunreacht na hÉireann on the other hand is unchanging, stern and ambitious to the extent of being unrealistic in many cases. The two simply cannot mix and forcing them to do so has left this country and its citizens in a 30-year disaster zone of uncertainty, fear and damaging maternity care.
The Amendment, which is now on the chopping block for another referendum in the near future, is not merely an ‘anti-abortion’ provision. We saw this last December when a dead pregnant woman was being artificially kept alive to sustain the growing foetus inside her – she was being used as nothing more than a human incubator. We saw the same 30-year fear and uncertainty from medics and lawyers about the equal right to life of the foetus inside this deceased woman. Ultimately the courts sided with rationality and humanity but this does in no way clarify other similar situations.
We’ve also seen in recent times Bills to allow for termination of pregnancy in cases of fatal foetal abnormalities. These failed, primarily due to the uncertainty of what the 8th Amendment actually outlawed. Could the unborn have an equal right to life if it had no chance of life outside the womb? Who knows for certain? No one, because once again the provision is simply not clear. If such legislation was passed the courts would once again face the decision on attempting to clarifying the amendment further.
Ironically, it is the very same 8th Amendment which legalised abortion in Ireland in 1992. This should have been no great surprise. In 1983 when the Amendment was introduced, former lawyer, Alan Shatter TD denounced it, saying: “The irony is that I have no doubt…that if it in its present form becomes part of our Constitution it will essentially secure a constitutional judgment in the not too distant future requiring the House to enact legislation to permit women to have abortions…There is not a member of this House who can categorically state that if this matter were dealt with before our courts this year, next year, or in 20 years time, one of these interpretations to permit, and indeed constitutionally require, abortion would not be accepted.”
Students have always been a great part of social change in our society. From abortion to LGBT rights (something proven within the past year alone), students have led the charge for the great social changes our generation demands. Will students stand in the front line of the march for repeal of the 8th too?
UL’s law school is playing its part challenging the Amendment, with lecturers drafting legislation on the issue on more than one occasion in recent times. The Union of Students in Ireland has pledged itself to campaigning for repeal but UL stands outside this and so you, as students of UL, are left to decide what you want.
Do we fight to hold to or replace such a significant legal flaw as the 8th? Or do we fight to utterly repeal this flaw and allow our Oireachtas to deal with medical law through legislation as it should always have been? Will you stand up and say: “Our parents and grandparents made a mistake. We want to fix it.”
This is not a ‘pro-choice’ versus ‘pro-life’ issue, this is an issue of legal and medical clarity and rational responsibility in national law-making. Last May we made grá the law, will we now extend this grá to women as equal citizens too?