Abortion Law: Repeal of the Eighth Amendment in Ireland but a Pyrrhic Victory in Northern Ireland

Stephanie Palmer

University of Cambridge

The Republic of Ireland

There has been a seismic shift in access to legal abortion in Ireland.  Since 1983, Irish law has been restricted by Article 40.3.3 of the Constitution, inserted by the Eighth Amendment, which specifically acknowledges the right to life of the unborn child as equal to the life of the mother. As a consequence, abortion laws have been highly restrictive. The law has had a chilling effect on medical practitioners who have faced criminal prosecution and even prison sentences for breaches in the law.  Even where an abortion fell within the limited legal exception, (a real and substantial risk of loss of the woman’s life which can only be averted through an abortion) it remained difficult, if not impossible, to access abortion services. Many Irish women, some 3,000 to 4,000 a year, have made the stressful, lonely and expensive trip to the UK to have lawful and safe abortions.

In January 2018, the Taoiseach (Prime Minister), Leo Varadkar, announced a referendum on abortion. The electorate were asked whether or not they wanted to repeal or retain the Eighth Amendment. In May, the Irish electorate voted by 1,429,981 votes to 723,632 in favour of its abolition.  Prior to the vote, draft legislation had been published to provide for unrestricted access to terminations for up to twelve weeks and, for up to twenty-four weeks in exceptional circumstances. As the electorate voted in favour of repealing the Eighth, this legislation will come before the Oireachtas, Ireland’s Parliament, later this year.

When announcing the referendum in early 2018, Leo Varadkar made a remarkable statement in support of the repeal of the Eighth: “we’re asking people to trust women”, indicating a major social change in Ireland. No single issue can be identified as explaining the shift in policy but certain events contributed towards the transformation.

First, the Catholic Church has traditionally played a central role in Ireland but its authority has been undermined by successive scandals, including revelations of child abuse and the cruel treatment of women in Magdalene Laundries. Although the Church supported keeping the Amendment, it kept a relatively low profile in the referendum debates. 

Secondly, the shocking death of Savita Hallappanavar in 2012 received widespread publicity and was politically controversial. Hallappanavar, an Indian national, was suffering a miscarriage but her treatment was delayed due to medical practitioners’ fears of a criminal prosecution if they carried out an abortion too early.  Septicaemia set in and Halappanavar died. Pro-choice campaigners pointed out that Ireland had failed to clarify its domestic law on abortion in spite of the 2010 decision of the European Court of Human Rights in A, B and C v Ireland. Halappanavar's unnecessary death was a catalyst for change: there have even been calls to refer to the new legislation as ‘Savita’s Law’.

Thirdly, there was an acknowledgement that in spite of the Eighth Amendment, Irish women were still having abortions. Many women were travelling to the UK for terminations or obtaining abortifacients, illegal in Ireland, through the internet. 

Fourth, a change took place in the referendum debate itself. The silence that had traditionally surrounded the issue - along with the stigma of travelling to the United Kingdom to seek help - was broken. Many women on both sides of the debate were willing to publicize their stories and experiences of abortion for the first time.

Pressure from outside Ireland and international human rights organisations also contributed to the change. For example, in an Issue Paper in December 2017 the Council of Europe recommended the reform of highly restrictive abortion laws and that member states ensure all women’s access to safe and legal abortion care. In addition, there were two recent decisions of the U.N. Human Rights Committee (Mellet v Ireland and Whelan v. Ireland) that found Ireland’s abortion laws amounted to cruel, inhuman and degrading treatment (article 7), breached the right to privacy (article 17) and equality and non-discrimination (article 26) of the  International Covenant on Civil and Political Rights.  The Human Rights Committee recommended that Ireland should reform its law, including the Constitution, to ensure compliance with the Covenant and its international obligations.

Northern Ireland

In stark contrast, since the repeal of the Eighth Amendment in Ireland (which is not part of the UK), Northern Ireland will now be the only territory across the United Kingdom and Ireland where abortion is restricted in almost all circumstances. The Abortion Act 1967, which regulates medical termination of pregnancy in England, Scotland and Wales, does not extend to Northern Ireland.  It remains a criminal offence to receive or procure an abortion according to ss. 58-59 of the Offences Against the Person Act 1861 and s.25(1) of the Criminal Justice Act (Northern Ireland) 1945. There are limited exceptions: an abortion in good faith to preserve the life of the woman or where the continuing pregnancy would endanger the woman’s mental health – established following R. v Bourne [1939] 1 K.B. 687.   

Shortly after the Irish referendum decision, the UK Supreme Court (UKSC) delivered its judgment (In Re Northern Ireland Human Rights Commission’s Application for Judicial Review [2018] UKSC 27 ) on a human rights challenge to the criminal law regulating abortion in Northern Ireland. The Northern Ireland Human Rights Commission (the Commission) argued that the termination of pregnancy where the foetus had been diagnosed with fatal foetal abnormality or where the foetus arose as a result of rape or incest was incompatible with articles 3 (the prohibition of torture and of inhuman and degrading treatment), 8 (the right to respect private life) and 14 (prohibition of discrimination) of the European Convention on Human Rights (ECHR). The proceedings were brought in the name of the Commission, rather than those of individual victims.  That said, particular individuals and their experiences were relied upon by the Commission during the proceedings.

In a much anticipated, but disappointing decision, the UKSC, by majority (Lords Mance, Reed, Lloyd-Jones and Lady Black) found that the Commission did not have standing to bring this challenge: it had not identified any unlawful act nor an actual or potential victim of it. As the appeal was dismissed, the court had no jurisdiction to make a declaration of incompatibility pursuant to s.4(2) of the Human Rights Act.

In spite of this finding, the majority of the Supreme Court still concluded that the existing criminal law is incompatible with the ECHR. Thus the decision is a victory of sorts. A majority, (Lady Hale, Lords Mance, Kerr, and Wilson), found that the law was incompatible with Article 8 while Lady Black joined the majority in a situation of fatal foetal abnormality. Lord Mance considered the legal position as ‘untenable’ requiring ‘radical reconsideration’ and confidently stated that a victim challenging the existing legislation would obtain a declaration of incompatibility.

Lords Kerr and Wilson would have been prepared to make a declaration that the law was incompatible with article 3. In their opinion, the state owes individuals a protective obligation “as well as a positive duty to provide appropriate healthcare where the denial of that treatment would expose victims to ill-treatment contrary to article 3.” Nor were they prepared to accept that since a woman from Northern Ireland can travel to England or Scotland for a termination of a pregnancy, she can avoid inhuman or degrading treatment. In their opinion, the requirement of travel in itself, is sufficient to expose a woman to the risk of inhuman and degrading treatment.

Conclusion

The UK Supreme Court decision, together with the referendum south of the border, has heightened the pressure to change the law in Northern Ireland.  Legislation could alter the law (there is no constitutional requirement for a referendum). Criminal law is a devolved power, which means that responsibility lies with the parliament for Northern Ireland (the Northern Ireland Assembly), rather than the Westminster Parliament. However, following the breakdown of the power-sharing agreement between the Democratic Unionist Party (DUP) and Sinn Féin (which respectively represent the unionist and republican communities), Northern Ireland has been without an Assembly since January 2017. In the absence of a functioning Assembly, Westminster could legislate, and indeed there have been calls upon it to do so. However, a further complication lies with the DUP, a strong Northern Irish pro-life party, who vehemently oppose an extension of the Abortion Act 1967 to Northern Ireland, and on whom the Conservative minority Government in Westminster relies for support to maintain a functioning government.

Given the strong opposition of the DUP to abortion law reform, the present beleaguered Government in Westminster is unlikely to choose to push through controversial legislation. There will be change but perhaps not just yet. In the meantime, an individual ‘victim’ has announced that she will bring legal proceedings. This victim’s experience has already been described by Lord Mance as ‘distressing’.  Ironically the Commission’s case was designed to spare individuals the added stress of a challenge in court.

Stephanie Palmer is a senior lecturer at the University of Cambridge, a Fellow and Director of Studies at Girton College, and Assistant Director of the Centre for Public Law, Cambridge. 

Suggested citation: S Palmer, 'Abortion Law: Repeal of the Eighth Amendment in Ireland but a Pyrrhic Victory in Northern Ireland' IACL-AIDC Blog (8 August 2018) https://blog-iacl-aidc.org/blog/2018/8/7/abortion-law-repeal-of-the-eighth-amendment-in-ireland-but-a-pyrrhic-victory-in-northern-ireland