A vote on abortion is welcome, but not without risk

The potential pitfalls in Ireland's referendum bonanza
By Dr Fergal Davis

Irish polling stations are set to be busy over the next few years. Taoiseach (Prime Minister) Leo Varadkar has announced that six referendums and a plebiscite will be held in 2018 and 2019. Eighty years after the Irish people adopted Bunreacht na hÉireann (The Constitution of Ireland) in a national plebiscite we have a Citizens Assembly-inspired Varadkarian Constitutional Crusade?

Since 2016 a Citizens Assembly has been deliberating on a range of topics. Periodically reports have been laid before parliament. The process has thrown up a range of proposals for change and many of these proposals require Constitutional amendment. The referendums are partly a result of that process.

The referendums cover a wide range of issues including abortion, divorce and blasphemy. At present Article 41.2.1° of the Constitution “recognises that by her life within the home, woman gives to the state a support without which the common good cannot be achieved.” There is a proposal to amend this to make it less, outdated, misogynistic, and frankly embarrassing.

In addition, Irish voters will be asked to: reduce the voting age to 16; to create directly elected city mayors; and to allow the diaspora to vote in elections for the largely symbolic office of President. This final proposal is not just a sop to misty-eyed expats in Boston, Bondi and Blackburn – it would grant Irish citizens in Northern Ireland a say in the choice of head of state of the Irish Republic.

With so many referendums in such a short period the risk of fatigue is high. The issues may end up being bundled together in the public imagination: the social issue referendums and the voting referendums. The merits of the abortion debate may become entwined with blasphemy, divorce and the role of women in 21st century Ireland in a kind of Celtic Culture War.

So why is Ireland proceeding with so many referendums in such a short period of time?

Ireland’s constitution is based on popular not parliamentary sovereignty. The Preamble states:

“We, the people of Éire,
Humbly acknowledging all our obligations to our
Divine Lord, Jesus Christ, Who sustained our fathers
through centuries of trial,
Gratefully remembering their heroic and
unremitting struggle to regain the rightful
independence of our Nation,

Do hereby adopt, enact, and give to ourselves this

This constitutional poetry, from the land of saints and scholars, speaks volumes. The preamble is overtly Christian, though Ireland – unlike England and Scotland – does not have an established Church. Independence is a cherished value. Finally, the people “adopt, enact, and give to” themselves this constitution: this is a statement of popular sovereignty. That rhetorical commitment to popular sovereignty is given practical effect in Article 46 – the constitution can only be amended by referendum.

Changing the franchise in presidential elections (Article 12.2.2°); reducing the voting age to 16 (Article 16.1.2°); liberalising abortion laws (Article 40.3.3°); removing the ban on blasphemous publications (Article 40.6.1°); removing the notion of women as home-bound care-givers (Article 41.2.1°); redrafting the divorce regime (Article 41.3.2°); none of these things can be done without referendums.

Professor Fíona de Londras, a leading expert on the Irish Constitution now based in the UK, has coined the term “hyper-constitutionalising” to sum up the Irish approach. The constitution is layered with overly detailed provisions.

The constitution includes many typical provisions setting out the role of the head of state, the parliament, and the judiciary. It also contains a lot of outdated social commentary: for example, the provisions on blasphemy and the role of women. Over the past 40 years it has also been layered with overly detailed provisions on subjects such as divorce.

Varadkar’s referendums are a welcome attempt at updating the Constitution. But gender-neutralising the language around care-givers in Article 41.2.1° will not solve the problem of hyper-constitutionalisng. It might, in fact, exacerbate it.

Each proposed referendum has merit so the question becomes one of priorities. The blasphemy laws are outdated. However, the Defamation Act 2009 was designed to respect the Constitutional ban on blasphemy whilst making it virtually impossible to prosecute the offence. An Irish solution to an Irish problem? Perhaps. But, should a referendum on blasphemy be a priority if it puts more urgent reform at risk?

There is an urgent need to provide free, safe and legal abortion access in Ireland

The change to the franchise in presidential elections is not guaranteed the support of the Irish abroad. The amendment will break the link between the franchise for parliamentary and Presidential elections. Some worry that this make it more difficult for the Irish Diaspora to campaign for overseas votes in Dáil or Seanad (Senate) elections. Should this referendum be pursued at this stage or could it be deferred until the Diaspora are adequately consulted?

The proposal to directly elect city mayors does not appear to require a referendum at all. Article 28A of the Constitution recognises the role of local government but it does not seem to prevent directly electing the mayors. In a crowded landscape such a referendum (or plebiscite) is unnecessary?

And then there is abortion. The 8th Amendment to the Irish Constitution was inserted into the text following a referendum in October 1983. The result was Article 40.3.3°:

“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 as practicable, by its laws to defend and vindicate that right.”

This provision, and the interpretation of it, makes abortion illegal in virtually all circumstances.

A number of tragic cases – perhaps most notably the death of Savita Halappanavar – have highlighted the need for reform and there have been increasing calls to Repeal the 8th. Irish women seeking an abortion must travel outside of the state to receive that medical treatment: 3,265 women gave Irish addresses to UK abortion services in 2016. The lack of free, safe and legal abortion services in Ireland is a daily crisis.

Polls show that there is support for reform of Ireland’s abortion laws. Experts, however, favour repealing the 8th Amendment and placing the legal regime for abortion in legislation. The pro-reform vote risks being split between those favouring reform and repeal. The reform agenda risks perpetuating the mistakes of the past – inserting another overly restrictive, difficult to amend provision, into the constitution. That must be avoided.

There are a plethora of positive reform proposals on the table in Ireland – but there is an urgent need to provide free, safe and legal abortion access in Ireland. The 8th Amendment to the Irish Constitution can only be repealed by referendum. That is the referendum which must take priority. Repeal the 8th.