Through the Looking Glass of the 8th Amendment: A Historical Analysis of its Conception, Gestation and Birth

Ireland has a shameful history of its treatment of women. From the Magdalene laundries, to Mother and Baby homes, to the Tuam baby scandal and black markets for adopted babies, Ireland has done its best to sweep the lingering dirt of its past under the rug. Somehow, this image does not fit with the carefully curated picture of a modern, globalized Ireland, which grins its teeth at international conglomerates and ushers them in with arms wide open full of democratic values, rule of law, 12.5% corporation tax, skilled English speaking and more importantly, WHITE WESTERN workers, green fields, drinking culture and the all-important craic. Meanwhile, the last skeleton in the closet of this previous era, the flesh long rotted, the eye sockets gaping, – has begun to creak and shake off its old bones. It whispers of a closely guarded Irish secret of a sacrifice that was once made by Ireland – a sacrifice, some say, which was made of all its women for generations to come. A deal which was struck that once an Irish woman became pregnant, she would have to share her citizenship rights with the unborn inside of her. Her right to full bodily autonomy lost in an impossible balancing act between mother and foetus.  A constitutionally enshrined commitment that your wombs belong to us and therefore, you belong to us. No longer silent, encased in its tomb, it has emerged zombie-like and looming. And out of its mouth has poured the souls of all the women, past and present, who have died on the pyre for Catholic Ireland’s “profound moral values”. Values, which condemn abortion and proclaim to respect life but in reality, only respect the life of the unborn, the lives of the faceless women who are forced to travel for abortion or procure illegal abortions, inconsequential. The Catholic doublethink. These women spilled out on to the streets. Some say, they were yelling. Some say they were shrieking. Others said they were hysterical. No, their ears were not conditioned to detect the clear sound of anger but the tone of women’s anger. No matter. All agreed upon what they were saying – no more.

There is something rotten in the Republic of Ireland. The 8th Amendment, please take a bow.

The 8th Amendment was inserted into the Irish Constitution in 1983, following the outcome of the majority vote of Irish people in the referendum. The Amendment reads:

The states 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 as practicable, by its laws to defend and vindicate that right.

The Amendment equates the right to life of the unborn embryo or foetus with the right to life of the pregnant woman. It essentially completely outlawed and criminalized abortion in all circumstances, although exceptions were later made to provide for abortion if there was a ‘real and substantial’ risk to the right to life of the mother, be it a risk to health or by threat of suicide.

On 25 May 2018, almost thirty years since its enactment, the Irish people will again decide whether this Amendment should live or die. However, in our haste and almost disbelief to get to the voting polls and to have our say, we have forgotten how the 8th Amendment came to pass. It has become so woven into the complex fabric of Irish history that we no longer take a moment to really understand how the stars seemed to align on that faithful day, that made 67% of the 53.3% of Irish people who turned out to vote, believe that this amendment was vital, and most importantly, necessary to constitutionally enshrine away from the meddlesome hands of judicial interpretation. This paper aims to look again through the looking glass of the 8th Amendment and its historical context, from conception, to gestation, to live birth. It draws its title from C.S. Lewis, Alice in Wonderland Through the Looking Glass[1], in which Alice steps through a mirror into an imaginary world where everything looks similar but somehow backward at the same time. She is tugged and pulled in different directions by characters that demand her to do certain things and to act a certain way.

Harari has said that historians study the past not in order to repeat it but in order to be liberated from it.[2] For this to happen, one must return to the past and understand it to see that there is an alternative route. Hindsight, is, after all, a great thing if one can learn from it. It is hoped that this paper, by stepping back in time and breathing life into the history, characters, legislation, environment, events and stories of Ireland in the run-up to the 8th Amendment, will show that it was an orchestrated result of many influences since Independence. Namely, stemming from the economic and capitalist pursuit of a patriarchal State which sought to invisibilize and confine women within the home and a Catholic moral order which sought to police women and their sexuality and punish those who transgressed it. Each section commences with a quote from Silvia Federici, a Marxist-Feminist historian, which will set the framework of how Irish women were coerced into an economic and legal system of subjugation and oppression which extended even into their private sexual and reproductive lives. Attention is paid throughout to key legislation which impacted the status of women and State and Government bodies which influenced how women were perceived.

In the beginning of the book, Alice deals with her unruly kitten and “to punish it, she held it up to the Looking-glass that it might see how sulky it was” and tells the kitten that “if you’re not good directly…I’ll put you through into the Looking-glass House.” Although we live in a very different time and country, we are not so far removed from the almost fantastical world of our past. It is hoped that this paper will emphasise the insidious religious and state powers that were at work in 1983 that could very well still influence the outcome of the upcoming referendum. With the referendum looming, any person who can cast a vote is Alice, holding the women of Ireland by the scruff of her neck, threatening to send her back through the looking glass to a world of subjugation, oppression and torment.

Phase 1: Enclose the Women

We can thus connect the banning of prostitution and the expulsion of women from the organized workplace with the creation of the housewife and the reconstruction of the family as the locus for the production of labor power.

Women became the commons defining women in terms of mothers, wives, daughters, widows that hid their status as workers while giving men free access to women’s bodies, their labor and bodies and labor of their children.

Silvia Federici, Caliban and the Witches

As I have mentioned in the introduction, each section draws its title and subsequent quotation from Silvia Federici, who seeks to locate us within the economic and capitalist structure which has confined women to work in the home, then undermined the nature of this work whilst simultaneously placing high value on their reproductive functioning. Marxist Feminist historians like Federici argue that when we view women’s work in the home against the larger political backdrop, we begin to understand how the capitalist system has exploited and invisiblized women’s unpaid work to look after their ‘worker’ husbands and to produce children that will eventually grow up to be workers themselves. Women’s unpaid labour and reproductive functioning is therefore essential to the capitalist organisation of labour. It underpins the very functioning of capitalism. This has led the role of the housewife to be degenerated by the view that it does not contribute to the economy – yet the hypocrisy of this, as we will see in the coming sections, is exposed as her role in the home has been repeatedly institutionalized by the State, in the Constitution and in legislation. A deeply hierarchal and gendered structure of work is created with paid labour outside of the home performed by men is deemed to be of a higher status than the unpaid labour that is performed by women in the home.  This raises the question if women’s role in the home is of no value, why has Government sought to create an economic and legal framework where a woman cannot escape it?  This will be explored in the context of Ireland since Independence in the coming paragraphs.

When Ireland gained Independence, those who now ruled over a free Irish Republic set about trying to establish Ireland’s political, economic and national identity. The 1922 Irish Free State Constitution guaranteed equal rights and equal opportunities to all its citizens. However, women began to see this promise of equality eroded by Eamonn de Valera, a prominent leader of the struggle for Independence and then Prime Minister of the Republic, who overhauled the initial Constitution to vote into place the 1937 Constitution of Ireland. Political independence provided the opportunity and the means to promote a comprehensive moral order based on Catholic principles. During this period, Catholic social teachings, coupled with economic austerity and traditional attitudes began to shape political ideology and become enshrined into Irish law.[3] Catholic principles idealized the nuclear God-fearing family as the crux of the new State, which defined women solely in terms of her function as a wife and mother. Divorce was also expressly forbidden under the Constitution. Inglis has pointed out that “although women played a crucial role in the struggle for independence, once this was gained, the new Free State began to pass legislation that helped to confine women to the home.”[4] O Tuama has commented that de Valera “attempted to unravel their contribution to the revolution and indeed the centrality of women to the Celtic identity.”[5] Beaumont has also commented that “(t)here is little doubt that much of the legislation introduced during the early years of the Irish Free State reflected the ‘Catholic’ nature of Irish society”[6] – much of the legislation will be discussed in the coming sections.

Indeed, on Saint Patrick’s Day, 1943, de Valera spoke of the Ireland that he dreamed of which

“would be the home of the people who … satisfied with frugal comfort, devoted their leisure to the things of the spirit. A land whose countryside would be bright with cosy homesteads, whose fields and villages would be joyous with the sounds of industry, with the romping of sturdy children, the contests of athletic youths and the laughter of happy maidens.”[7]

De Valera’s priority was to ensure a strong national Catholic identity of moral superiority that was distinct from England and a strong capitalist economy that was struggling to find its feet following independence and the threat of World War Two. De Valera gave definitions to many things in the Irish Constitution, but the definition that had the most damning effect on the progression of Irish society was his re-classification of all women in terms of the role that they played in the home, essentially removing women completely from participation in the public sphere. Article 41.2 states:

The State recognises that by her life within the home, woman gives to the State a support without which the common good cannot be achieved.

The State shall, therefore, endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home.[8]

By limiting women to the domestic sphere, de Valera essentially reduced competition for employment in the workforce, ensuring that men could earn their living. This was not the first of measures designed by the Irish state to effectively push out women from the organized workforce and to promote their role as a mother. Within five years of the creation of the Irish Free State, Catholic social policy and nationalist rhetoric had succeeded in reducing the female workforce and confining them in the home to partake in ‘socially acceptable’ occupations such as home assistance and agriculture. This is despite continued protests and lobbying by women’s organisation, who contested the wording of several clauses in the de Valera’s draft Constitution as well as the subsequent legislation which continued to undermine women’s rights. In 1933 a Marriage Bar was introduced which prevented female teachers from working after their marriage. This was then extended to female civil servants in 1935. The 1936 Conditions of Employment Act gave the Minister for Industry and Commerce the power to control and restrict the number of women working in any given industry, in an attempt to further safeguard the long-established right of the male citizen to paid work. Women’s freedom was completely diminished and they were given one of two options; to fulfil their ‘natural’ role as a mother, or to join the religious orders. As Graham notes “both nuns and married mothers were idealised in Ireland, which can be a complex notion, considering the two ideals were at odds with one another.”[9] By the Constitution and subsequent legislation, de Valera had successfully managed to make Irish women the commons of Irish men, the sacrifice of a capitalist system and the forced vessels to produce the future Irish generation of workers. But legislation was not enough, social forces were much more effective at enforcing this system of oppression.

Phase 2: Expel the Witches

“(T)his war was waged primarily through the witch-hunt that literally demonized any form of birth control and non-procreative sexuality while charging women with sacrificing children to the devil.”

Silvia Federici, Caliban and the Witches

With women being successfully confined to the home, the next step was to ensure that they fulfilled their function in producing the future generation of the Irish worker. Under the Catholic social teachings, women were viewed as embodying the purity and chastity of the Irish people and therefore, only sexual conduct for the purpose of procreation was to be permitted. Under sections 58 and 59 of the Offences against the Person Act 1861, abortion was illegal. The Criminal Law Amendment Act of 1935 prohibited the importation, sale and distribution of contraceptives. Irish families were large, fertility levels remained high until 1970s and Ireland was considered an outlier in this respect as compared to their developed counterparts.[10] Of particular concern to the Catholic church and the Irish State was the issue of unmarried mothers and illegitimate children who were seen to fly in the face of the Catholic, moral, nuclear family that had been expressly enshrined in the Irish Constitution. These ‘fallen women’ were considered a threat to society at large and needed to be hidden away or removed entirely from the general population. The State began to enact further legislation that penalized the unmarried mother and her illegitimate child and tried to make it as difficult for her to keep the child as possible. Through the Illegitimate Children (Affiliation Orders) Act, 1930, the State attempted to shirk its responsibilities for the care of the illegitimate child and place the burden on the putative father. The State went even further in the Legitimacy Act 1931 which stated that the child would become legitimate if the parents subsequently married within 10 months of the child being born. This reflected the extreme Catholic ethos of the time.

In the 1930s to the 1950s, we see the opening of Mother and Baby Homes and Magdalene Asylums around the country, which were religious run institutions with grants from the State that took in unmarried mothers, allowed them to have their babies and then fostered or adopted out these children to what they considered respectable families. Nuns ran these institutions as they were deemed to be the perfect representation of chastity and virtue. The wheels were in motion of a system where women policed other women’s sexuality and punished them for their indiscretions. Women who had ‘fallen’ the first time, were deemed to be able to be rehabilitated, whereas women who had ‘fallen’ several times were often imprisoned in these asylums for life and forced to work in horrendous conditions without remuneration.

It is important to remember that there was no legislation implemented to force unmarried women into these institutions. Often it was the families or parish priests who delivered these women to these institutions for violation of the moral Catholic order. In many cases, the shame and stigma associated with being pregnant outside of wedlock meant that these women voluntarily admitted themselves as they would have nowhere else to go. The church was preoccupied with the visible manifestation of “sin” in terms of the pregnancy, but there were no comparable repercussions for the father, save for if he was brought to court and petitioned for child support. Similarly, women who had fallen pregnant due to rape or incest had no recourse and often had to suffer doubly from the injustice of the assault and the further shame and stigma of the pregnancy. This is again reflected in the passing of the 8th Amendment, which does not allow any exception for abortion for victims of rape and incest. The children of unwed mothers were deemed to be products of sin which was evidenced in the extremely high death rate of illegitimate children. A mass grave was recently discovered in the grounds of the Tuam Mother and Baby home, where the remains of 800 infants and children indicates the attitude towards these children at the time.[11] Indeed, my own mother was born in a Mother and Baby home after my grandmother fell pregnant outside of wedlock. My grandmother was driven to the home by the local parish priest. It was customary for the nuns to deny the woman any pain relief medicine during labour and to ask if the pain of childbirth had been worth their sexual misadventure. It is interesting to note that the preoccupation of the Catholic church shifted from the issue of illegitimate children to the protection of the unborn, regardless of its legitimate or illegitimate status in the run up to the referendum on the 8th Amendment. This shift in attitude is possibly because the Irish public did not have an appetite any longer for the persecution of illegitimate children and so the war needed to be waged on the common ‘evil’ of abortion of unborn children.

The Law Reform Commission issued a report in 1982 whereby it recommended that the government enact legislation which “should remove the concept of illegitimacy from the law and equalise the rights of children born outside marriage with those of children born within marriage.”[12] Much of the report focusses on how to rebut claims of paternity, which reflected a mentality of the men at the time that they needed to insulate themselves from false claims of women trying to trap them. The Seanad, or Senate, debates at the time are illuminating, with much debate focussing around the property rights of the father and the possibility of a child born outside of wedlock laying claim to inheritance. Indeed, as one senator mentioned “the abolition of the status of illegitimacy would mean that every father of a child born outside marriage however fleeting his relationship with the mother, or however little actual interest he took in the child, would automatically have the same parental rights over the child and the same succession rights to the child’s estate as a married parent has in relation to a child.”[13]

This “out of sight, out of mind” mentality was again reproduced after the passing of the 8th Amendment, when a subsequent referendum was held to vote on whether women would have the right to travel to seek abortions. This passed and so the attitude of removing women who had “fallen” and force them to travel to seek abortion healthcare again reinforces the shame and stigma of the woman’s action and made it clear; you can do it, but not in Ireland, we do not permit this kind of thing here.

Phase 3: Scaremonger

It appears in many ways that de Valera’s dream of Ireland had materialized. However, de Valera would have never expected the chilling effects that the subjugation of women would have on familial and sexual relations. In Donal Connery’s book The Irish, he painted the following portrait of the Irish wife as:

“a kingsize hot water bottle who also cooks his food and pays his bills and produces his heirs. He takes what should be the happy, leisurely lovemaking of marriage like a silent connubial supper of cold rice pudding. A rapid sex routine is effected as if his wife is some stray creature with whom he is sinning and hopes he may never see again. Though many Irish wives are preconditioned to such behaviour, having seen its like in their own fathers and uncles, they resent it deeply.”[14]

Inglis has noted that “it is not until the second half of the twentieth century that we begin to find traces of a new discourse, a new way of reading, writing, representing, and understanding sexuality that challenged existing Catholic discourse and conventions”[15] with the resistance focusing around women and the “rejection of the modest, chaste, virginal woman championed by the Catholic church and epitomized by the image of the Virgin Mary.”[16]

The arrival of the television to Ireland in the 1960s (and the relaxing of censorship rules) meant that different and more liberal cultures were flooding into the homes of Irish people and people had access to previously censored materials. Ireland was not immune to the sexual revolution of the 1970s and attitudes slowly began to shift. The Marriage Bar had been lifted upon Ireland’s accession into the European Economic Community in 1973, mainly because the Irish government’s hand was forced to drop its discrimination against Irish women for its own economic incentive, meaning that more women were entering the workplace. The number of married women in the labour force increased dramatically from 7.5 percent in the early 1970s to 41 percent by 1996.[17]

CHERISH, an organisation set up by unmarried mothers for unmarried mothers, was established in 1972 which showed the changing attitudes of the Irish people to the plight of the previously stigmatized unmarried mother. In 1973, the Social Welfare Act explicitly recognized the unmarried mother as an acting citizen and committed to providing her with benefits to support her child. Although contraceptives were still banned, they were illegally imported from England and used in Ireland with members of the Irish Women’s Liberation Movement publicly defying the law by bringing contractive into the state on the train from Belfast. However, despite these revolutions, the Irish people remained devoutly Catholic. In 1971 over 98 per cent said they were religious and at the 1981 census, just 1 per cent reported having no religion. Churchgoing remained high with over 90% of Catholics attending mass at least once a week in 1974 with this figure dropping slightly to 85% in 1990. The Church obstinately refused to change its stance on sex, marriage and most importantly – women’s natural role as a mother.

Phase 4: Make Women’s Wombs State Property

“(F)rom now on their wombs become public territory, controlled by men and the state, and procreation was directly placed at the service of capitalist accumulation.”

Silvia Federici, Caliban and the Witches

In 1967, the British Abortion Act introduced legalized abortion under certain circumstances in United Kingdom (excluding Northern Ireland). Irish women who could afford to do so began to take the ‘abortion trail’ and travel to Britain to procure abortions. Then in 1973, the landmark case of McGee v Attorney General and Revenue Commissioners[18] reached the Supreme Court. Mrs McGee was a 27-year-old married woman of four children. She had suffered from a stroke and temporary paralysis during one of her pregnancies and was told by her doctor that her life would be at risk should she become pregnant again. However, due to the contraception ban, Mrs McGee shipment of spermicide jelly that she had ordered by post from the UK was intercepted and seized by customs. Mrs McGee challenged this and the Supreme Court ruled in her favour, acknowledging that she had a constitutional right to marital privacy. Despite this ruling, the legislators were slow to enact it and came under huge threat from the Catholic church who vehemently condemned the use of contraceptives. It was 1979 before the Health (Family Planning) Act was passed and this limited contraceptives to those who were requesting them for ‘bona fide’ family planning – basically restricting contraception to married couples. Access was later extended to allow certain health and family planning bodies to provide contraceptives to those over 18 years age in 1985 before these restrictions were lifted completely in 1993, upon the outbreak of AIDS/HIV epidemic.

McGee was simultaneously a win and a loss for liberals.  Little did they know at the time that it would be one step forward to the liberalization of contraceptives and the possibility for women (albeit initially only married ones) to take back control of their reproductive choices. However, the Supreme Court decision in McGee ignited fear in the hearts of the Irish people. In the same year, the landmark case of Roe v Wade was decided in the US, in which the Supreme Court also recognized that the right to abortion was a privacy right of women. The precursor to this case, Griswold v Connecticut[19], was relied upon in the McGee case and a fear began to brew of “the danger of a progressive judiciary”[20]one that could potentially extend the McGee decision even further and introduce an abortion regime into Ireland that was against the will of the people. This is despite Justice Walsh specifically referring to abortion in his delivery of his decision, stating that “any action on the part of either the husband and wife or of the state to limit family sizes by endangering or destroying human life must necessarily not only be an offence against the common good but also against the guaranteed personal rights of the human life in question.” 10 years later, when the 8th Amendment was voted in, it was clear that McGee had actually been one step forward but 10 light years back in the progress of female reproductive rights.

The Pro-Life Amendment Campaign (PLAC), an umbrella group of 14 Catholic organisations, was founded in 1981 and began to mobilize. PLAC operated based on scaremongering and ignited hysteria about the possibility that abortion could be introduced in Ireland. It is worthy of note that abortion was still illegal at this time and contraceptives were all but illegal except if you were married. The plan was hatched that what Ireland needed was to insert a provision into the Irish Constitution away from the meddling interpretations of a progressive judiciary or the whims and fancies of transient governments. It may have been influential at the time that Ireland was going through an economic recession and the population had fallen for the first time since Independence. PLAC petitioned the government for a commitment to hold a referendum and took advantage of political instability to secure a promise. Eager to secure the Catholic vote, Charles Haughey, who had served as Prime Minister and was contesting elections again, as well as Garret Fitzgerald, both committed to holding a referendum on the issue. The wording of the Amendment is indicative of “the anxiety which changes in women’s role and self-concept ha(d) induced in Ireland. The assumption that the law needed to intervene in the relationship between woman and foetus – to protect the so-called ‘unborn child’ from its mother- is indicative of a deep distrust and fear of women.”[21] The huge participation of women in the pro-life movement, then and now, is also indicative of the divides that exist within feminism and the inability of women to confront the “internalized sexism” that Bell Hooks speaks about in her book, Feminism is for Everybody.[22] She says that “(t)he anti-choice movement is fundamentally anti-feminist.” Meaney also comments that the stronghold of patriarchy is to create divides within women and “recruits women damaged by patriarchal ideology to the cause of patriarchy itself and sets them campaigning and voting against their own interests.”[23] The internalized patriarchy of Irish women who had willingly and happily taken up the role of the good Catholic mother could not bear facing an alternative to her reality – that women could refuse motherhood and could prioritize her life over her reproductive functioning. Abortion was so inflammatory because it “directly challenged the notion that a woman’s reason for existence was to bear children. It called the nation’s attention to the female body as no other issue could have done. It was a direct challenge to the church.”[24]

There was strong opposition to the Amendment also. Pro – choice campaigners, though limited in the support they garnered, came to the forefront of Irish politics in the late 1970s and early 1980s. Two pro – choice groups which were particularly successful were the Dublin Well Woman Centre founded in 1978, and the Woman’s Right to Choose group, established in 1980.  The Attorney General at the time, Peter Sutherland was particularly concerned about the wording of the Amendment, calling it “ambiguous” and “unsatisfactory”, saying that it will “lead inevitably to confusion and uncertainty, not merely amongst the medical profession, to whom it has of course particular relevance, but also amongst lawyers and more specifically the judges who will have to interpret it.”[25] He suggested different wording which was rejected as not being pro-life enough. It was almost as if Peter Sutherland had a magic ball and had foretold the future, for each one of his concerns about the amendment has come true.

The insertion of the 8th Amendment meant that a pregnant woman was never to be considered as a full and equal citizen, but to have her rights subordinated to the unborn in her womb. As Meaney has noted, it was a “compromise on any general or ‘human’ constitutional rights which might give precedence to the woman’s rights as an individual over her function as a mother.”[26]

Phase 5 –Breaking the Silence

The fears of Peter Sutherland and other oppositional voices did indeed come true. The insertion of the amendment opened an absolute Pandora’s box of issues for the electorate and most of all, for pregnant women in Ireland. In matters concerning interpretations of the Constitution, the Supreme Court has the final say. Rather than having the intended effect that the pro-life supporters wanted, that is, to safely put the abortion issue away from the hands of the judiciary, the ambiguous wording of the Amendment landed it right on the judge’s table in 1992 in the form of the X case.[27] The X case concerned a 14-year-old girl, pregnant because of rape who was suicidal. She had been brought to England with her parents to seek an abortion. The Attorney General, upon hearing of her travel arrangements had sought an injunction to force her to return to Ireland. The girl had returned to Ireland without obtaining the abortion pending the judge’s decision. The judges ruled that there was a right to an abortion in Ireland when there is a ‘real and substantial’ risk to the mother’s life, either by a threat to her physical health or suicide.  A series of follow-up referendums had to clarify the position; a referendum on the right to travel, the right to information and the suicidality grounds of the X case were all passed.

Despite the judges introducing exceptional circumstances in which abortion can be permitted under the Amendment, it took the legislature 20 years to transcribe this into law, in the Protection of Life During Pregnancy Act 2013.[28] This came about because of pressure on the government following the European Court of Human Rights (ECHR) decision in A, B and C v Ireland[29] in which women took their cases to the court arguing that the lack of abortion care in Ireland violated their human rights, explicitly their rights not to be subjected to ‘cruel and degrading treatment’ by having to travel to England to procure abortions. The ECHR was put in a sticky situation as they could not be seen as overriding the Constitution of one of their member states, which was an expression of the will of the Irish people or, as they said reflected the “profound moral values concerning the nature of life which were reflected in the stance of the majority of the Irish people against abortion during the 1983 referendum.”[30] They skirted around the issue, opting to give Ireland a wide ‘margin of appreciation’ in terms of their abortion regime which they considered to be a divisive issue in the country and a reflection of the “profound moral values” of the country. However, they agreed that Ms C’s right to legal certainty had been violated since there was no clear legislation which espoused the circumstances under which a woman could apply to be considered for an abortion.  The 2013 Act was a strict rereading of the X case, which included in section 22 a prison sentence of up to 14 years for any woman who was found guilty of procuring an illegal abortion.

The pro-choice movement seemed to remain silent, or relatively silent until the tragic death of an Indian dentist, Savita Halappanavar, in an Irish hospital in 2012. Savita had been admitted upon complications during her pregnancy but, despite asking for an abortion that could have possibly saved her life, she had died from a septic miscarriage. The attending nurse during the inquest to her death had told the panel that she had told Savita that this was a “Catholic country” when her pleas for an abortion fell on deaf ears. It emerged during the inquest that doctors had delayed performing an abortion since a foetal heartbeat had still been beating.[31] Doctors reported that the legal lacuna of the 8th Amendment meant that they were not allowed to operate unless there was a ‘real and substantial’ risk to the woman’s life or if the heartbeat had stopped. People were outraged by her death. It is considered a galvanizing moment in the growing support of the pro-choice movement.

Meanwhile, details of the Ms Y case[32] emerged of a pregnant asylum seeker who alleged that she was pregnant due to rape had requested that she have an abortion. She was suicidal and had gone on hunger strike. Despite her arguably fulfilling the requirements for an abortion under the 8th Amendment, an application was made to the High Court which permitted her to be force fed until the baby could be delivered by caesarean section. Similarly, in another horrific case called the Ms P case, an application was heard by the High Court whether a woman who had been pronounced brain dead but who was 5 weeks’ pregnant could be kept alive as a cadaveric incubator so that the child may be born alive. This was against her family’s wishes. The court eventually ruled that the pregnancy was not yet far enough developed to warrant incubation but did not rule out the possibility of doing so in a case where the pregnancy is of later viability. This reflects the obligation of the State to step in and “protect the life of the unborn” even if it means adopting perverse methods of doing so.

In a case that shocked Irish society as heralding from the era of the Magdalene laundry incarceration, an Irish teenager was incarcerated in a mental institution when she requested an abortion under suicidal grounds.[33]

It is important to note that these are the public cases, but there are many more that go unheard in the private sphere. It is estimated that 12 women leave Ireland’s shores daily to procure abortions abroad, with many more taking abortifacient drugs that they order online.

Ireland was facing mounting pressure from international bodies that were condemning Ireland’s restrictive abortion regime. In 2013, the United Nations Human Rights Committee found against Ireland in its treatment of Ms Amanda Mellett who had been forced to travel to England when she was denied an abortion in Ireland upon a fatal foetal diagnosis.[34] She was from low socio-economic circumstances and had incurred significant financial and emotional costs. Ireland was mandated to pay her compensation as well as reporting to the body in 6 months’ time of the measures that they were taking to ensure that the same circumstance would not arise again. As the government was coming under increased pressure from the Irish people it committed to holding a Citizen’s Assembly, a committee of 99 randomly selected citizens chaired by Supreme Court judge, Justice Laffoy charged with the task of investigating the 8th Amendment and making non-binding legal recommendations to Government. The Committee heard expert evidence and testimonials from a range of health, legal and human rights professionals. A strong majority voted in favour of liberalizing Ireland’s abortion laws. Their findings were then reviewed by a government committee, which recommended a referendum to repeal the 8th Amendment and allow the government to legislate for abortion. The current draft legislation proposes that abortion will be permitted on request by a woman up until 12 weeks’ gestation and under specific health grounds beyond that.[35]

Phase 6 – Dream or Reality?

It seems since the enactment of the Amendment, that Ireland has been living in a nightmare of its own making. Senator Mary Robinson summed it up well during the Oireachtas debates in 1983 on the 8th Amendment when she said:

“This is a terrible indictment of us. We have every reason to be ashamed of the way in which we have not addressed ourselves to the real problems. Not only have we not been concerned at all about the degree of suffering, disadvantage, guilt, helplessness and discrimination against women which are reflected in all of this but we have not looked or even wanted to look at the reasons why this may be so.”[36]

Ireland finally appears to have taken its head out of the sand and begun to face the suffering, shame and stigma that the 8th Amendment has inflicted on Irish women and to at least acknowledge if not begin to understand the complex web of reasons why a woman may seek an abortion.

In the final chapter of the Through the Looking Glass, Alice checkmates the Red King in a game of chess, finally returning her to her own world. She wakes up and wonders aloud if her dreams were her own or those of the Red King. It is hoped that on voting day, that the people of Ireland will checkmate the sleeping King of patriarchy, so that we may enter a new reality where our bodies, our decisions and our destinies are finally ours to control.

KON 8.jpg

I dedicate this piece to my recently deceased grandmother, Philomena, who brought my mother into the world in a Mother and Baby Home, which I speak about briefly in this piece. I also dedicate the piece to Savita Halappanavar, who lost her life due to the 8th Amendment in an Irish hospital. May her soul rest in peace now that the 8th Amendment has been repealed.

[1]Carroll, Lewis, Hugh Haughton, and Lewis Carroll. Alice’s Adventures in Wonderland ; And, Through the Looking-Glass and What Alice Found There. New York: Penguin Classics, 2009.

[2] Harari, Y. N. (2016). Homo Deus: A brief history of tomorrow. Random House, p. 68.

[3] Beaumont, Caitriona. “Women, citizenship and Catholicism in the Irish free state, 1922-1948.” Women’s History Review 6.4 (1997): 563-585.

[4]Inglis, Tom, Origins and legacies of Irish prudery: Sexuality and social control in modern Ireland, Irish American Cultural Institute, 2005, available at  http://irserver.ucd.ie/bitstream/handle/10197/5112/Origins%20of%20Irish%20Prudery%20(2).pdf?sequence=4/ijls.ie/wp-content/uploads/2013/07/IJLS_Vol_2_Issue_2_Article_3_OTuama.pdf last accessed 29 April 2018.

[5]Ó Tuama, S., ‘Revisiting the Irish Constitution and De Valera’s Grand Vision’ Irish Journal of Legal Studies, 2 (2) 54-87, 2011.

[6] Beaumont, Caitriona. “Women, citizenship and Catholicism in the Irish free state, 1922-1948.” Women’s History Review 6.4 (1997): 563-585.

[7]De Valera, E. On Language and the Irish Nation, speech on Raidió Éireann, 17 May 1943, available at http://spinnet.humanities.uva.nl/images/2014-04/devalera1943.pdf last accessed 29 April 2018.

[8]The Irish Constitution, available at https://www.constituteproject.org/constitution/Ireland_2012.pdf last accessed 19 April 2018.

[9]Graham, Ann-Marie. Unmarried mothers: the legislative context in Ireland, 1921. Diss. National University of Ireland Maynooth, 2012.

[10] Lunn, Pete, and Tony Fahey. Households and family structures in Ireland: A detailed statistical analysis of census 2006. Economic and Social Research Institute and the Family Support Agency, 2011.

[11]O’ Dowd, Niamh, Tuam Babies: “It would be… kinder to strangle these children at birth” said doctor, Irish Central, August 2017, available at https://www.irishcentral.com/news/tuam-babies-it-would-be-kinder-to-strangle-these-illegitimate-children-at-birth last accessed 29 April 2018.

[12]The Law Reform Commission, Report on Illegitimacy Ireland (LRC 4 – 1982) available at http://www.lawreform.ie/_fileupload/Reports/rIllegitimacy.htm last accessed 20 May 2018.

[13]Seanad Eireann Debate, Wednesday 23 May 1984 available at  http://oireachtasdebates.oireachtas.ie/debates%20authoring/DebatesWebPack.nsf/takes/seanad1984052300009 last accessed 20 May 2018.

[14]O Connery, Donal, The Irish, Simon and Schuster, 1970.

[15] See footnote no. 2.

[16]Ibid.

[17]O’Connor, Pat. Emerging voices: Women in contemporary Irish society. Institute of Public Administration, 1998.

[18] [1974] IR 284

[19]381 U.S. 479 (1965)

[20]Linnehan, Hugh, Podcast How the 8th Was Born, The Irish Times, 2018 available at https://soundcloud.com/irishtimes-politics/how-the-8th-was-born last accessed 29 April 2018.

[21]Meaney, Geraldine, Sex and Nation Women in Irish Culture and Politics, Attic Press, 1991, available at http://researchrepository.ucd.ie/bitstream/handle/10197/5535/MeaneySeXandNationPamphlet.pdf?sequence=1 last accessed 29 April 2018.

[22] Hooks, Bell, 1952-. Feminism Is for Everybody : Passionate Politics. Cambridge, MA :South End Press, 2000.

[23] See footnote 21.

[24] Ibid.

[25]The Irish Times, Peter Sutherland’s 1983 advice on the Eighth Amendment, 13 January 2018, available at

https://www.irishtimes.com/news/social-affairs/peter-sutherland-s-1983-advice-on-the-eighth-amendment-1.3353263 last accessed 29 April 2018.

[26] See footnote No. 20.

[27] Attorney General v X [1992] IESC 1, [1992] 1 IR 1

[28] Protection of Life During Pregnancy Act 2013, 35/2013, Irish Statute Book, available at http://www.irishstatutebook.ie/eli/2013/act/35/enacted/en/pdf last accessed 29 April 2018.

[29] European Court of Human Rights, (Application no. 25579/05), available at https://www.dfa.ie/media/dfa/alldfawebsitemedia/ourrolesandpolicies/internationallaw/echr-a-b-and-c-vs-ireland-2010.pdf last accessed 29 April 2018.

[30]Ibid, p. 62.

[31] Health Service Executive, Investigation of Incident 50278 from time of patient’s self referral to hospital on the 21st of October 2012 to the patient’s death on the 28th of October, 2012, June 2013, available at http://cdn.thejournal.ie/media/2013/06/savita-halappanavar-hse-report.pdf last accessed 29 April 2018.

[32] Amnesty International, Ms Y Case: Denied a Lawful Abortion in Ireland, 21 March 2016, available at https://www.amnesty.ie/ms-ys-case/ last accessed 29 April 2018.

[33]Holland, Kity, Girl sectioned after psychiatrist ruled out abortion, The Irish Times, 12 July 2017, available at https://www.irishtimes.com/news/social-affairs/girl-sectioned-after-psychiatrist-ruled-out-abortion-1.3116111 last accessed 29 April 2018.

[34] Enright, Mairead, Amanda Jane Mellet V. Ireland – The Key Points, Human Rights in Ireland, 9 June 2016 available at

http://humanrights.ie/uncategorized/amanda-jane-mellet-v-ireland-the-key-points/ last accessed 29 April 2018.

[35] Bardon, Sarah, Government Sets out 21 Clauses to regulate Abortion, The Irish Times, 9 March 2018, available at https://www.irishtimes.com/news/social-affairs/government-sets-out-21-clauses-to-regulate-abortion-1.3420425 last accessed 29 April 2018.

[36]Robinson, Mary, Oireachtas Debates, available at http://oireachtasdebates.oireachtas.ie/debates%20authoring/DebatesWebPack.nsf/takes/seanad1983050400007#N11 last accessed 29 April 2018.

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