The Citizens’ Assembly and the Disciplining of Activist Demands

Fiona de Londras

University of Birmingham

Given how contentious abortion tends to be as a matter of both political and legal discourse, it may be tempting to seek out a ‘silver bullet’ from the Irish experience; to find what, if anything, made our experience of abortion law reform so distinctive and, from the perspective of those in favor of liberalization, so successful. The temptation to pinpoint the Citizens’ Assembly (CA) as that silver bullet is no doubt strong. However, I want to argue here that any such enterprise must be approached critically and with care, and to suggest that the importance of the Assembly tells us more about politics’ failure to respond to activist demands for justice from women and pregnant people than it does about the quality and value of a process such as the CA.

As ever, the story of abortion law reform in Ireland is not simple or straightforward. It is certainly not possible to present a linear progression from CA to successful referendum as if that were the totality of this (ongoing) story of law reform. However, suggestions of such linearity are already emerging, just as they did with the Constitutional Convention that preceded the 2015 referendum on marriage equality, premised largely on the claim that these assemblies increase the information and knowledge voters had and thus had an impact on voter behavior (see, eg, Jane Suiter in the LSE Blog; Elkink et.al. in Irish Political Studies). Importantly: scholars propounding this view do not suggest that these assemblies were determinative of the outcome, but they do situate them as important to voter behavior.

What I want to suggest is that while these assemblies may have some impact on voter behavior, in the case of the referendum on the 8th Amendment (which had blocked the liberalization of abortion regulation in Ireland) the CA’s impact was greatest on politicians.

It was, in other words, politicians rather than voters who needed more information and more persuasion to accede to the decades-long call for reform, and the Assembly produced the kind of information that they considered persuasive.

The fact that most voters had made their mind up in favour of repeal well before the Assembly (75% said they ‘always knew how [they] would vote’), and were motivated by a belief in a woman’s right to choose rather than technical arguments about law design, is indicated by the RTE/Behaviour & Attitudes exit poll. Of course that exit poll has limitations, as all polls do, and my argument does not rest upon it. But it does prompt the question of what the Assembly was really for if there was at least some popular will to change well in advance of its establishment (as Amnesty’s 2016 poll had also suggested).

Bearing this in mind, it is useful to take a look at the political process that led to the referendum.

First the Programme for Partnership Government committed to a CA, but largely because Katherine Zappone TD, on whom Fine Gael was reliant to form a government, insisted upon it. It reported in June 2017. Then a Joint Oireachtas (parliamentary) Committee on the 8th Amendment (JOC) was established to consider the outcome of the Assembly, once again at the insistence of Zappone (the terms of reference for the CA did not require a special Committee and there were rumours this would simply go to the Health Committee for consideration). Then parliamentary debates on the Assembly’s report and that of the JOC were held. Then Cabinet approved the proposal for a referendum. In the spring legislation triggering the referendum was passed. And then the referendum took place.

Seen in this way, the Assembly may well appear to be a primary protagonist. Its recommendations were far reaching and wide ranging, and the Assembly members went beyond the strict question of whether constitutional change was needed to consider and make proposals for wholesale law reform and reform to public policy approaches to sexuality, contraception and consent. The report certainly surprised politicians; indeed, its proposals were so wide ranging and considered so liberal that some were shocked by them, and seemed determined to ‘water them down’.

Indeed, it was watered down. The JOC report recommended repeal and substantial legal and policy changes, but it retreated from Assembly recommendations that abortion be permitted on socioeconomic grounds or in cases of non-fatal foetal anomaly, for example. The Committee was particularly influenced, it would appear, by the members’ seemingly-new knowledge of medical abortion and the extent to which pregnant people in Ireland were accessing it by buying abortion pills online. Illegal self-administered abortion—which is safe with medical supervision and up to 10 or so weeks of pregnancy—was perceived by the Committee as particularly troubling, even dangerous, and it was in the Assembly that we might say political knowledge about medical abortion and the patterns of illegal resort thereto was created. This is notwithstanding the fact that activists and advocates had been both talking about and acting to support access to medical abortion in Ireland for years.

Following the JOC report the Cabinet proposed even more restrictive access to abortion: in the general scheme of a Bill that it approved for publication during the referendum one can find, for example, a 3-day waiting period was included where abortion was sought within the 12-week ‘protected period’, for example, and criminalization was maintained (albeit not for pregnant people). These remain in the finalized Bill now making its way through the Oireachtas (parliament). Indeed, that Bill is in many ways extremely restrictive, especially when it comes to criminal offences and sanctions (see our position paper on the general scheme that preceded the formal Bill here).

So, while the CA may well have had an important impact on politicians’ knowledge of abortion, and set in train a set of political reactions that led to the referendum, this cannot be received uncritically as a reflection of the importance or the desirability of such forums in areas of contentious policy making.

The fact is that what this really tells us about is which voices, and which processes of disciplining those voices, official politics will listen and react to.

This reflection is separate but related to the critical reflections on who was and was not heard in the Assembly that my colleague Máiréad Enright will present later in this Symposium. My point here is that we must reckon with the fact that it was reified, formalized voices that were ‘allowed’ to have political impact in this debate, and that the Assembly was the forum for their disciplining.

Activist voices, activities and affirmation of the harms imposed by the 8th Amendment were not enough to generate sufficient political will to take what was perceived as the ‘risk’ of having a referendum to repeal the 8th.  These activist voices had risen to a roar by the time the Assembly was established, but they had been around since the referendum that inserted the 8th Amendment in 1983.

The truth is that the Citizens’ Assembly told anyone who cared to listen nothing new; it simply told the harmful and damaging story of the 8th Amendment in a voice that had been disciplined, one in which the noise of pain, isolation and marginalization had largely been omitted.

All of this indicates, to me at least, that when we consider the importance of the Citizens’ Assembly in the journey to repeal of the 8th Amendment we must be careful not to overegg the custard. The Assembly was a political necessity, and it did serve a political purpose. It created the conditions for change in which a political system that was not generally willing to accept that women and pregnant people were sufficiently expert in the harms of the 8th Amendment for their demands for change to ground a referendum campaign. Instead, that system needed formal reports, numerous parliamentary processes, and the simple good fortune of sticky parliamentary arithmetic at the time of forming the government for a referendum to come about.

In a constitutional system where it is politics, and not the people, who initiate referenda, I concede that this is significant. But it is also problematic, and it certainly suggests that valorization of the Assembly as critical to repeal of the 8th needs to be contextualized and approached with critical caution.

The Citizens’ Assembly was important in the journey towards repeal of the 8th Amendment, but whether that reflects the success of the Assembly or the failure of politics is quite a different matter.

Fiona de Londras is an Irish academic and the Professor of Global Legal Studies at the University of Birmingham. She was a key campaigner for the repeal of the 8th Amendment to the Constitution and is co-author (with Dr Máiréad Enright) of the book Repealing the 8th: Reforming Irish Abortion Law (Policy Press, 2018).

Suggested Citation: Fiona de Londras, ‘The Citizens’ Assembly and the Disciplining of Activist Demands’ (26 November 2018) https://blog-iacl-aidc.org/debate-the-citizens-assembly-in-ireland/2018/11/26/the-citizens-assembly-and-the-disciplining-of-activist-demands