Why Politicians Should Think Twice About Removing 8th Amendment
Despite what the polls (or editorials in the Irish Times) may say, there is no guarantee that a referendum to remove Article 40.3.3 would pass. History suggests that public opinion could prove quite volatile over the course of a referendum campaign. The country (and politicians) would have endured yet another bruising abortion debate but we would still be exactly where we started.
Even if a referendum to remove Article 40.3.3 did pass, that would not be the end of the matter, it would simply mean that abortion would become a matter for the Oireachtas – something most TDs would wish to avoid. They would immediately be faced with debating and voting on a new abortion bill (or perhaps several bills), the debate on which would cause serious tension within most of the main political parties.
There has, so far, been little detailed consideration of what sort of legislation might follow the removal of Article 40.3.3, apart from vague suggestions that it should allow abortion in cases of rape, or where the baby is seriously disabled. But most advocates of such a change say they still want the law to be “restrictive”. But no one has explained how a law that allows abortion in cases of rape can be in any meaningful way “restrictive”. Consider what such a law, and the debate leading up to it, might look like. If you want a “restrictive” law, you can't allow abortion simply on the basis that the woman says she was raped, since that would effectively allow for abortion on demand. On the other hand, any effective measures to verify the claim of rape will prove hugely controversial, provoking debates about how they are intrusive, and a further abuse of a woman who has already suffered the appalling crime of rape. Not many TDs will want to be thrown into that debate.
The whole thing would quickly get very messy and become most politicians’ worst nightmare.
There is no guarantee that an amendment to close the X Case loophole would pass, but it still remains the most promising option. Two of the key pro-life objections to the 2002 proposal no longer apply. The Supreme Court has since ruled that unimplanted embryos are not covered by 40.3.3 under RvR, the frozen embryos case, and the relevant sections of the 1861 Act have already been repealed. Provided the government is sensible and engages with the main pro-life groups in drafting the proposal, the support of the vast majority of pro-lifers could be relied upon, giving a strong chance of the amendment passing.