Five changes, Five reasons to vote no

Alliance for a No Vote

Legal briefing on referendum

Ivana Bacik - February 2002


1.The existing law on abortion is as follows: Article 40.3.3 of the Constitution (the 1983 Eighth Amendment) provides that the unborn has an equal right to life with that of the pregnant woman (see below). But abortion is legal in Ireland following the Supreme Court decision in the X case (AG v. X [1992] IR 1), where there is a real and substantial risk to the life, as distinct from the health, of the pregnant woman. The risk of suicide is included as such a risk. Abortion is also a criminal offence under the 1861 Offences Against the Person Act, but a defence may apply where the continuation of a woman's pregnancy would render her a 'physical or mental wreck' (under the English case of R. v. Bourne [1939] 1KB 687).

2. The Proposed Referendum - the Twenty-Fifth Amendment of the Constitution (Protection of Human Life in Pregnancy) Bill, 2001 The 2001 Bill to be put to the people in referendum on 6th March is made up of two parts. The first part sets out the proposed changes to Article 40.3 of the Constitution. The second part contains the text of the Protection of Human Life in Pregnancy Act 2002. If the referendum is passed, and the proposed Act is subsequently also passed by both Houses of the Oireachtas within six months of the referendum, the proposed Act will have constitutional status.

If the referendum is passed, the existing provisions in Article 40.3.3 will remain in force: "3 The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect and, as far a practicable, by its laws to defend and vindicate that right. This subsection shall not limit freedom to travel between the State and another state. This subsection shall not limit freedom to obtain or make available, in the State, subject to such conditions as may be laid down by law, information relating to services lawfully available in another state. (travel & information added in 1992)"

These new provisions will be added to Article 40.3: A new subsection 4 will provide that the life of the unborn in the womb will be protected in accordance with the Protection of Human Life in Pregnancy Act 2002; A new subsection 5 will provide that any future proposal to amend or repeal the Protection of Human Life in Pregnancy Act (the proposed Act) will have to be approved by the people in a referendum.

Five Changes the Referendum would make - Five Reasons why it must be defeated

1. Suicide will be eliminated as a ground for legal abortion in Ireland Section 1 of the proposed Act defines 'abortion' as 'the intentional destruction by any means of unborn human life after implantation in the womb of a woman'. The only situation in which termination of pregnancy after implantation will not come within that definition is where the termination, in the reasonable opinion of a doctor, is necessary to prevent a real and substantial risk of loss of a woman's life, other than by self-destruction. In other words the risk of suicide will no longer be a ground for abortion. This will overrule the X case.

2. Doctors' ability to perform life-saving terminations will be restricted in 3 ways Current medical practice will change because 3 new restrictions will be placed on doctors who perform terminations to save women's lives where at physical risk:

3. The legality of the Morning After Pill will still be open to question The proposed Act does not apply to the unborn prior to implantation in the womb. The reason given for this exclusion was the desire to protect the legality of the morning after pill which operates after fertilisation and before implantation. But this simply means that the MAP is excluded from the ambit of the Act. It is not given any legal protection, and it will still be possible for anti-abortion groups to take civil action to prevent the sale of the MAP (or the IUD), or to seek further legislation to ban the MAP.

4. There will be no enforceable right to travel abroad for an abortion Section 4 of the proposed Act confirms the freedom to travel already added to Article 40.3.3 in 1992, but does not provide any right to travel, and does not give any state body or agency the power to assist a pregnant woman to travel abroad for an abortion. If the proposed new legislation is passed and the threat of suicide is ruled out as a ground on which abortion may lawfully be performed in Ireland, then the basis for the November 1997 'C' decision is removed. This means that a young girl or woman in C's position would not in future be able to get state authorisation to travel abroad. Further C case scenarios are likely to arise for any women who need state permission or assistance to travel abroad, such as asylum seekers, prisoners, wards of court or children in care.

5. A draconian new criminal law prohibition on abortion will be introduced Section 2 of the proposed Act contains a new criminal offence of attempting, aiding, abetting, counselling or procuring an abortion, replacing the 1861 criminal offence. Under the proposed Act any woman who aborts herself or tries to abort herself and anyone who helps her will have committed a crime. The proposed new offence is drafted more restrictively than the old offences and appears to eliminate the defence available for the old offence. The proposed new offence can only now be tried before a judge and a jury, and the new penalty provided for is a maximum 12-year prison sentence. Although this is less that the 1861 Act penalty (maximum life imprisonment), it will be easier to convict women of the new offence.

The process by which the referendum is being put is itself open to question under the Constitution. The proposed Act will itself have constitutional status, so any change will require another referendum. The Constitution is not an appropriate place to regulate abortion; this referendum will complicate the law on abortion further. It must be defeated.


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