The Irish Referendum on Abortion: ‘Mediating’ Activists’ Demands with Political Caution through a Citizens’ Assembly

Behind the planned referendum on the 8th Amendment is decades of activism, with the Citizens’ Assembly seeming to provide a mechanism to mediate activist demands with political caution. The Assembly made remarkable recommendations that went beyond the consensus in the political establishment. Nevertheless, the fact that the regular political institutions retain the ultimate authority to propose a constitutional referendum has allowed them to make the final proposals considerably more conservative than the Assembly’s recommendations – writes Professor Fiona de Londras.

Introduction

On 25 May 2018, the Irish people will vote on the proposed 36th Amendment to the Constitution. If passed, it will remove the near-total ban on abortion (the 8th Amendment) and replace it with a text making clear that ‘Provision may be made by law for the regulation of termination of pregnancy’.

Article 40.3.3 of the Irish Constitution (known as ‘the 8th Amendment’) protects ‘the right to life of the unborn…with due regard to the equal right to life of the mother’, and pledges to ‘respect and, as far as practicable…to defend and vindicate’ that right. This provision, inserted in 1983 as the 8th Amendment to the Constitution, has been met with resistance throughout its existence. This is hardly surprising. Legal bans on abortion do not stop abortion; they merely prevent lawful abortion. In Ireland, as elsewhere, women denied the ability to access safe and legal abortion have found other ways to bring pregnancy to an end. For many years, ‘travel’ (i.e. going to another jurisdiction to have a lawful abortion there) has been the primary solution for those who can afford it, although in recent years the purchase, importation and (illegal) self-administration of medication abortion pills has become more common. The Protection of Life During Pregnancy Act 2013, enacted to give effect to the 8th Amendment, is clearly inadequate to meet the needs of women in Ireland: it allows for abortion only where a pregnant woman’s life is at risk, the foetus is not viable, and at least two doctors are satisfied that abortion is the only way to avert the risk. As long as the current constitutional provision remains in place, there is little more that the Irish bicameral legislature (the Oireachtas) can do: more liberal abortion law would be struck down as unconstitutional. Constitutional change is therefore unavoidable.

Constitutional change in Ireland is possible only through referendum.

However, constitutional change in Ireland is possible only through referendum. Although no part of the constitution is entrenched, any amendment requires approval in a popular referendum, carried by a simple majority with no requirement as to minimum turn out. While this purports to secure a form of popular sovereignty and ownership of the constitutional text, there is no provision for a referendum to be called by popular initiative. Referendums can occur only when the Oireachtas passes legislation allowing them. The process is political, and difficult to navigate. The difficulty is exacerbated where—as with abortion—the topic in question is one on which there are polarized views, one that politicians consider to be toxic, and one that ‘the system’ would rather avoid.

That the 8th Amendment falls into that category is clear. Despite the fact that thousands of women leave Ireland every year to access abortion (usually in England and Wales), indicating a clear unmet reproductive healthcare need, there has never yet been a referendum to liberalize the abortion laws. Instead, there have been two failed attempts to remove a right to access abortion where one’s life is at risk from suicide (in 1992 and 2002). Furthermore, in 1992, a right to access information about abortion was inserted into the Constitution. So too was a new provision to ensure one could not be prevented from travelling to access abortion care abroad. As Máiréad Enright and I have written elsewhere, this indicates a structural, constitutional tolerance for abortion travel that is quite at odds with the continued efforts not only to maintain a law that makes abortion a last resort only, but further to restrict it.

There have been two failed attempts to remove a right to access abortion where one’s life is at risk from suicide.

How, then, did we move from a situation in which there was dogged resistance to constitutional change among ‘the Establishment’ to standing only a few weeks from a referendum to repeal the 8th Amendment, to be followed (the Government intends) by the introduction of a comprehensive, although conservative, new law on access to abortion?

The response, as ever, is complex. At its heart, though, is activism.

The importance of activism and the establishment of a Citizens’ Assembly

I have written elsewhere that ‘the position in which we now find ourselves is clearly and unequivocally the product of decades of activist agitation and its more recent transformation into a significant social movement’. This cannot be underestimated. In more recent years, in particular, this social movement has found pockets of political support, especially as a conventional ‘two party’ domination of Irish politics began to break down, smaller parties (such as Labour and People before Profit) negotiated a greater ability to contribute to parliamentary debate, powerful socialist and nationalist parties began to see reproductive justice as part of the process of developing a more just state and to adapt their previously highly conservative policies on reproductive health accordingly (e.g. Sinn Féin), and Independent (or non-party-aligned) politicians gained traction within the political sphere.

It is useful to dwell briefly on the latter in the context of this referendum in particular, largely because of the role that Independent members of parliament play in the Irish government at the moment.

All political parties apart from Fianna Fáil dealt with the 8th Amendment in their General Election 2016 manifestos.

All political parties apart from Fianna Fáil found themselves having to deal with the 8th Amendment in their General Election 2016 manifestos, even though it was not a central issue in the campaign per se, which was instead dominated by austerity and economic recovery. Nevertheless, the main parties promised everything from repeal and the introduction of lawful abortion in some or all circumstances (Labour, Sinn Féin, Anti-Austerity Alliance, People Before Profit, Green Party), to the establishment of some form of deliberative assembly to discuss potential constitutional and/or legislative change (Fine Gael, Social Democrats; such a proposal was also endorsed by Fianna Fail leader Micheál Martin in a radio interview, although not in the party’s manifesto). At that stage, there was some acknowledgement that change may be required, but the ‘common ground’ was conservative and limited largely to the prospect of legalising abortion in cases of rape, incest, and fatal foetal anomaly.

Following an indecisive election, a Fine Gael-led government was formed, with a small number Independent deputies joining Cabinet in ministerial roles, including long-time social justice advocate (and one of the high-profile leaders of the successful campaign for marriage equality that culminated in a successful constitutional referendum in May 2015) Katherine Zappone TD, who had campaigned on a platform that included the repeal of the 8th Amendment. The Programme for Partnership Government thus included a commitment to establish a ‘Citizens’ Assembly’ to discuss, inter alia, the future of the 8th Amendment.

The Programme for Partnership Government included a commitment to establish a ‘Citizens’ Assembly’.

Although having some commitment on the 8th Amendment in the Programme for Partnership Government was recognised as an achievement, the prospect of a Citizens Assembly met with much scepticism. Why, many thought, did we need a Citizens’ Assembly to consider this when we already had a parliament that could receive the facts, consider them, and propose a referendum? I was among those to express reservations, as were many key pro-choice politicians, but some—including Zappone—insisted on its potential utility.

When established, the Citizens’ Assembly comprised 99 people selected from the electoral register, chaired by Supreme Court judge Ms Justice Mary Laffoy. Unlike the Constitutional Convention that preceded the referendum on marriage equality in 2015, this assembly did not have political representation; it consisted entirely of randomly-selected citizen members. Following months of deliberation and evidence and over 13,000 submissions from the public, the Assembly made a series of remarkable recommendations for change that went well beyond what the political common ground at the time was. Indeed, so much so that one of the first political reactions appeared to have been to see how to ‘water down’ the Assembly’s recommendations. These recommendations included not only the repeal of the 8th Amendment and the empowerment of the Oireachtas to legislate for abortion, but also strikingly liberal recommendations as to the availability of lawful abortion care following repeal.

Diluting the Citizen’s Assembly process

Under the terms of reference for the establishment of the Citizens’ Assembly, its Report was to be delivered to the Oireachtas and considered by a parliamentary committee. Although not mandated by the Assembly’s terms of reference, the Oireachtas established a stand alone, ad hoc Joint Oireachtas Committee on the 8th Amendment to consider the Report of the Citizens’ Assembly. This Committee was not empowered to reconsider the principled question of constitutional change per se but simply to consider the recommendations of the Citizens’ Assembly. Over almost four months, the Committee heard from a range of experts in reproductive rights, abortion law (including comparative law), medicine, public health and constitutional and international human rights law and, ultimately, endorsed almost all of the Assembly’s recommendations proposing constitutional change (albeit in a technically different form to that recommended by the Assembly) and extensive, but less liberal, abortion law following such change.

If the referendum succeeds, a new law will provide that it will never be a crime for a woman to have an abortion.

When the report of the Committee was then received by Cabinet, the decision was taken to propose a referendum and, if it were successful, to propose to the Oireachtas a new law on access to abortion. The ‘general scheme’ of that law is already available. It proposes to make abortion lawfully available:

• Up to 12 weeks, on request, subject to a 3-day waiting period;
• After 12 weeks but only up until viability of the foetus (i.e. the time when a foetus can survive outside the womb): where two doctors certify that there is a risk to the life of the pregnant woman;
• After 12 weeks but only up until viability of the foetus: where two doctors certify that there is a risk of serious harm to the health of the pregnant woman;
• Where two doctors certify that there has been a diagnosis of ‘fatal foetal anomaly’ (no time limit);
• When needed in an emergency.

Furthermore, it will provide that it will never be a crime for a woman to have an abortion, although it will be unlawful for someone to carry out an abortion except in line with the new law. (For a summary of the proposed new law see here).

The process of a Citizens’ Assembly followed by a legislative committee diluted some of the activist demands for change.

There is no doubt that the Citizens’ Assembly process contributed significantly to getting the Irish political establishment to where much of the Irish public had been for some time: committed to a referendum, and committed to making a law that better meets the real life needs of women in Ireland.

There are of course ways in which the process of a Citizens’ Assembly followed by a legislative committee diluted some of the activist demands for change: the proposal that abortion be available on socio-economic grounds, which was supported by 72% of the Citizens’ Assembly, did not receive support from the Committee and is not proposed in the law that will follow if the referendum is successful. Other recommendations were diluted in the ‘journey’ from the Committee to Cabinet: for example, after 12 weeks abortion will be lawful where there is a serious risk to health, but not a risk to health per se. And yet more proposals emerged in Cabinet that had not come from either the Assembly or the Committee (e.g. a 3-day mandatory waiting period to access abortion during the protected period of the first 12 weeks of pregnancy).

The conservative forces of formal politics still succeeded in shaping the debate.

Thus, while the Assembly was a key part of bringing the reality of abortion in Ireland into the public and political domains in ways that had traction with ‘the Establishment’, the conservative forces of formal politics still succeeded in shaping the debate and in rejecting some of the recommendations of the Assembly. We can expect more of that if the referendum is successful: a key battlefield will be the proposal of a 12-week period of abortion on request which, although supported by 48% of the Assembly (with 44% supporting a 24-week period and 8% abortion on request without any gestational limit), is already proving a major sticking point in political discourse.

Popular deliberative forums: ‘Mediating’ activist demands with political caution?

The conservative revisions notwithstanding, however, the ‘experiment’ of using deliberative forums in Irish constitutional change has clearly been of some use. In 2014/15, the Constitutional Convention was important in bringing the political establishment to a referendum on marriage equality and in helping to inform public debate, especially by providing a forum for people to speak of their experiences of being excluded and marginalised by the law. To a great extent, the same is true in 2017/18 with reproductive rights (although there was only a very limited engagement with women’s first person narratives and experiences of the 8th Amendment during the Assembly process). But in neither case are these forums the drivers of change. Instead, it is activism that drives constitutional change, with these kinds of processes seeming to provide a mechanism of mediating activist demands with political caution, resulting in a referendum proposal.

The referendum may not be exactly what activists called for, but it seems to be more than what politics was willing to give without the intermediate deliberative process.

That referendum may not be exactly what activists called for (and, in the case of the 8th Amendment, it is not), but it seems to be more than what politics was willing to give without the intermediate deliberative process. Where, as here, that process did not discipline activist demands as expected, the political process can and has intervened to undertake that disciplining by making the final proposals considerably more conservative than the Assembly’s recommendations.

Constitutional change is always a complex process, filled with multiple actors and sometimes innovative processes and tactics. In Ireland, where the conceit of popular constitutional sovereignty can only be operationalised with the licence of the official political process, this complexity takes on sometimes confounding forms. However, in the Citizens’ Assembly—at least in this referendum—it has produced the key demand of more than three decades of activism: a referendum to remove the constitutional prohibition on abortion. Whether it will succeed or not is a matter, ultimately, for the people.

Fiona de Londras is Professor of Global Legal Studies at Birmingham Law School, University of Birmingham. With Enright she is the author of Repealing the 8th: Reforming Irish Abortion Law (Policy Press, 2018) and runs the website www.aboutthe8th.com to provide accurate responses to legal questions about the referendum and proposed new law.