The Fate of the Eighth

Mia Kelly - JF Law and Politics | TCLR Junior Editorial Board

Political turmoil, social outcry, mass protests and calls for revolution are the issues that have dominated the early months of 2015. With tensions over water charges continuing to rise and an approaching  marriage referendum, the sense that change is in the air is undeniable. Unfortunately, the dominance of these issues has unwittingly swept aside others of equal importance, issues that were once at the forefront of this nations awareness but have now slowly started to slide further down the list of our priorities.

These Eighth Amendment was the topic that rightly monopolized our attention in 2014, a year during which our country once again showed its destructive and degrading treatment regarding women's reproductive rights. The year 2013 brought with it the tragedy of Savita Halappanavar's death,  and introduction of the Protection of Life During Pregnancy Act, but for those who thought that these events would bring new reform in the advancement of pregnant women's rights, 2014 brought nothing but bitter disappointment. The year consisted of continuing debates, following the Miss Y case, on the eighth amendment with hard lines being taken based on what Leo Varadkar described as “the Catholic versus anti-Catholic view of things rather than what’s right and what’s wrong”.

Upon reading the contentious Eighth Amendment, it can be deduced why it was seen as a valid option in 1983 Ireland and although it is the right to life of the unborn that is most often debated, it is the lesser contested equal right to life of the mother that has recently been raised in Irish courts. In 1983 when this amendment was raised, the flaws in the legislation were not anticipated which of course is a frequent observation that can be made looking at laws retrospectively. The fatal flaw that emerged was the conflict and competition that would arise between these two parties with 'equal rights'. Which is more important? What approach should be taken? The protection of a negative right that condemns interference or the defence of a positive right that demands it. This matter unfortunately was raised in December when a heartbreaking case reached the courts and gripped the attention of the nation.  The case of P.P. v HSE  was brought to the High Court, when a clinically dead pregnant women was kept on life support against her family's wishes as her doctors feared the legal implications that may occur due to the right to life of the unborn set down in Article 40.3.3 of the Constitution.  The High Courts decision on St. Stephen's Day allowed medical staff to turn of the life support and ended what the court described accurately as “a very traumatic number of days” for the woman's family. This case raised the very issue surrounding the supposed 'equality' of rights owed to the mother and unborn child. An unprecedented conflict arose between the right to life of the unborn and the right of the mother to dignity in death and bodily integrity.

In this instance the major deciding factor was the overwhelming medical evidence that showed that a viable live birth of the child was “virtually non-existent“ as the mother's body was rapidly deteriorating. Although the final decision made and its reasoning was quite clear cut for a finish, it poses the difficult questions about what may occur in similar cases in which the unborn's chances of survival are greater. Would the courts follow this ruling or would their interpretation of Article 40.3.3 take a different direction? Will the Eighth Amendment that was introduced to prevent abortion now govern this grey area of law surrounding the rights of pregnant women?

Ireland's well known reticence in addressing this issue has gone far past the point of being acceptable. This post is not intended to promote either side of the argument but is simply a call  for a proper debate to occur, for legislation to be introduced and for an update of the Eighth Amendment of our Constitution whether than means repeal, renewal or replacement. We are now one of very few countries in Europe who have failed to adapt and update our legislation regarding reproductive rights and the issue covers a far larger range of topics than just abortion. The problem that has been evolving in this state for many years can not continue to be kept in a neat little box in the corner of our minds, which is what has been done in this country by successive governments, politicians and the public alike. That box needs to be dusted off, opened and no longer be called 'abortion'. The problem must be recognised for what it is – a continuing reluctance on the behalf of the state to update legislation regarding human rights.

Minister Varadkar has warned against a referendum in the run up to the next general election, although at first this may seem like further avoidance on the part of the government surrounding this issue, upon further consideration I'd have to agree with him. A referendum on the Eighth Amendment needs to take place, of that there is no doubt and it needs to be kept at the top of this nation's priorities, but it needs to happen at a time that will limit empty promises and unattainable commitments by politicians, at a time where there is a sense of stability and order (at least for a short length of time) within our government and most importantly of all it needs to happen at a time when it can be given the full attention of the government, the media and the public. This issue is too important for us to allow it to be overshadowed by other societal problems but also too important to rush into, as much as we may want to.



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