Politics & Policy

The Irish Referendum: From Equal Protection to a Charter for Abortion

People celebrate the referendum vote in Dublin, Ireland, May 26, 2018. (Max Rossi/Reuters)
The proposed legal regime to follow last week’s vote paves the way to abortion on request, a revolutionary change.

Ireland is one of few European countries whose laws protect unborn children. As a result of last Friday’s referendum on abortion, that will soon change. The equal protection that Ireland’s laws afford to them is set to be replaced by permissive abortion legislation.

The Eighth Amendment to the Irish Constitution was passed in 1983, largely to block any judicial invention of a constitutional right to abortion, as in Roe v. Wade. The Amendment declared that the State acknowledged the right to life of the unborn and, with due regard to the equal right to life of the mother, guaranteed in its laws to respect and, as far as practicable, to defend and vindicate that right. Ireland stood out as a beacon of equal protection under law. But last Friday, the electorate voted 2–1 in favor of replacing that Amendment with a provision allowing the Irish Parliament to enact legislation to regulate abortion.

Before the vote, the government published its General Scheme of a Bill to Regulate Termination of Pregnancy. There was, and remains, much confusion about what that proposed bill would allow if enacted. What, then, are the grounds for abortion under the bill?

Abortion on request until the twelfth week of pregnancy
The bill would allow the termination of a pregnancy (“a medical procedure which is intended to end the life of the foetus”) that in the reasonable, good-faith opinion of a doctor had not exceeded 12 weeks. This would allow a single doctor to grant the request of a woman (“a female person of any age”) for abortion for any reason.

In short, abortion on request.

Abortion from the twelfth week to viability (24th week) because of a risk to life or health
The bill would also allow abortion if in the reasonable, good-faith opinion of two doctors there was “a risk to the life of, or of serious harm” to the physical or mental health of a pregnant woman; the unborn child was not viable (was not “capable of sustained survival” outside the womb, a capacity not thought to develop until the 24th week of pregnancy); and it was “appropriate” to terminate to avert that risk.

The bill requires merely belief in a risk to life or of serious harm to physical or mental health, not a serious risk. There is a risk (however slight) to life and of serious harm to health whenever we drive a car or cycle. There is a risk (however slight) to life and of serious harm to physical or mental health in every pregnancy. What, then, would prevent two doctors from granting any request for abortion between the twelfth and 24th week if they thought it “appropriate” to terminate in order to eliminate a risk (however slight) that a pregnant woman did not wish to run? (Even if the bill were amended to require the risk to be “serious,” that word is far from precise.)

Moreover, specifically in relation to a risk to mental health, two doctors could conclude that if a woman very much wanted an abortion, then denying her request would pose a risk (however slight) of serious harm to her mental health. Just as the overwhelming number of abortions in Britain under the Abortion Act 1967 are carried out because two doctors certify a risk to mental health, so two doctors in Ireland could certify a risk (however slight) of serious harm to mental health. (The prospect of their approval being questioned, let alone successfully challenged, would be very remote, as the experience in Britain has shown.)

‘Abortion legalized up to six months’?
Defenders of the Eighth claimed that the bill would “legalize abortion up to six months.” The Irish health minister responded that this claim was “disgraceful,” “entirely misleading,” and “a big lie.” He said the bill would allow abortion after twelve weeks only in “exceptional” and “strictly controlled” circumstances.

The claim that the bill would legalize abortion up to six months is accurate. The fact that the bill would not allow abortion on request between the twelfth and 24th week does not mean it would not legalize abortion during that period. The British Abortion Act 1967 does not permit abortion on request at any period of pregnancy, but to deny that the Act legalized abortion would be absurd. It is, indeed, the minister’s claim — that abortion would be allowed only in “exceptional” and “strictly controlled” circumstances — that stands on shaky ground.

Abortion from viability (24th week) until birth if immediately necessary to avert an immediate risk
The bill would allow the abortion of a viable child, until birth, if in the reasonable, good-faith opinion of a single doctor there was “an immediate risk” (however slight) to the life, or of serious harm to the physical or mental health, of the pregnant woman and it was “immediately necessary” to terminate to avert that risk.

Not only would the bill allow the abortion of babies with a disability likely to be lethal, it would also allow the abortion of babies with a non-lethal disability in a wide range of circumstances.

This is more elastic than many may realize. What, for example, would prevent a doctor from performing an abortion, up to birth, if he or she thought the woman would otherwise commit suicide, seriously self-harm, or have a mental breakdown?

And the bill would permit the viable child not just to be safely removed and survive but to be deliberately killed before being removed. In other words, even though the baby could be easily delivered by Caesarian section and, if unwanted by the mother, handed to loving, adoptive parents, the bill would allow him or her to be gratuitously destroyed.

If the baby has a condition likely to cause death
A second ground for abortion until birth would apply if two doctors certified their reasonable opinion that there was “a condition affecting the foetus that is likely to lead to the death of the foetus” either before or shortly after birth.

Defenders of the Eighth displayed posters of children with Down syndrome to make the point that in Britain most such babies are aborted. The Irish prime minister criticized them for attempting to “muddy the waters and create confusion,” saying that his government had “made it very clear in the proposed legislation that disability will not be grounds to end a pregnancy.”

However, not only would the bill allow the abortion of babies with a disability likely to be lethal, it would also allow the abortion of babies with a non-lethal disability (such as Down syndrome, or even cleft palate) in a wide range of circumstances. (Lest the reference to cleft palate be thought fanciful, doctors in England have performed late abortions for that reason.)

Aborting a baby with a mental or physical disability would be legal on request (like abortion for any other reason) before the twelfth week; between the twelfth week and viability (24th week) when carrying such a baby involved a risk (however slight) of serious harm to the woman’s mental health; and up to birth if it were necessary to avert an immediate risk (however slight) of suicide or of serious harm to the woman’s mental health.

People in Ireland and beyond should, then, be under no illusion as to just how revolutionary the legal change from the Eighth Amendment to the bill would be. And there will be nothing to prevent the government from making its proposed bill even more permissive.

If the bill is enacted, Ireland will follow Britain’s rapid descent down abortion’s slippery slope. The promoters of the Abortion Act 1967 said it was not their intention to permit abortion on request, yet that is precisely what the Act precipitated in practice. And even though that Act does not permit abortion for “social” reasons, countless abortions have been performed for such reasons, and with impunity. The latest development is a campaign (supported by the British Medical Association) for abortion to be treated like any medical procedure, removing the requirement for a second doctor’s approval. Where Britain has slid, Ireland will promptly follow, not least as the bill explicitly permits abortion on request until the twelfth week.

And Northern Ireland, the British province in which the Abortion Act does not apply, is now facing increasing pressure to relax its law in the wake of the vote by its southern neighbor.

In short, last week’s vote presages a fundamental shift in Irish law from equal protection to a charter for abortion. What a tragic chapter in the story of a nation that once saved Western civilization from barbarism.

John Keown DCL (Oxford) holds the Rose Kennedy Chair in the Kennedy Institute of Ethics at Georgetown University.

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