Origins of the Eighth Amendment

Following a referendum in 1983, Ireland became the first country in the world to give constitutional protection to the fetus, thereby copper-fastening the Irish state’s long-standing ban on abortion. The Eighth Amendment equated the life of a pregnant woman with that of a fetus, making abortion illegal in all circumstances except where there was a “real and substantial risk” to the mother’s life (the nature of this “real and substantial risk” was never actually defined or codified in law).

The Irish antiabortion movement that orchestrated this constitutional referendum was just one front in a broader attempt by the Right to undermine and contain the growing secularization and liberalization of Irish society in the 1970s and ’80s. It had attempted to mobilize around several different issues, but it was only around abortion, specifically fetal rights, that it succeeded in gaining any traction. Drawing on the iconography and ideology of the 1970s US antiabortion movement, the Right successfully utilized the dominant Catholic ethos of the Irish state and society and convinced politicians to hold a “pro-life” referendum to enshrine fetal rights in the Constitution.

Feminists and other activists opposed to the “pro-life” referendum were deeply divided on the strategic question of how to respond to this attack from the Right. Moderates argued that Ireland was too conservative for a pro-choice campaign and that the only way to defeat the referendum was to focus on the legal and technical problems that a constitutional ban would create. Those favoring a more pro-choice perspective argued that the reality of abortion should be foregrounded: abortion might be illegal in Ireland, but at least seven thousand Irish women were traveling to Britain every year to access an abortion.

However, the majority of activists considered the pro-choice position too “radical,” and the moderate position quickly came to dominate the campaign against the Eighth Amendment. As a result, women’s experiences of pregnancy and abortion were not just absent but actively omitted in public discussions.

Certainly, the political climate in the Ireland of the 1980s was intensely hostile to abortion from the beginning, and the political terrain of the referendum campaign was determined by the antiabortion right. In those circumstances, a pro-abortion argument was unlikely to break through and win the referendum. But as some argued at the time, if the antiabortion argument had been faced honestly and openly addressed, pro-choice campaigners might not have won, yet they might have succeeded in creating space for a pro-abortion position to be advanced and developed in Ireland and, crucially, for the voices and experiences of Irish women to become part of the debate.

The victory of the pro-amendment campaign by a two-thirds-to-one-third majority meant that it was now impossible for abortion to be made legal in Ireland without another referendum. Furthermore, the nature of the campaign set back and demoralized the pro-abortion movement for decades, making it harder for activists to argue for a position that they had previously denied or minimized.

The X Case

Struggles over abortion have always reflected the wider dynamics at play in any society. By the end of the 1980s, Irish conservative forces found themselves unable to hold back the tide of secularization and liberalization. The collapse of Catholic hegemony, long in the making, was accelerated by horrifying revelations of clerical sexual abuse, forced adoptions, and the incarceration of pregnant women in Magdalene Laundries and “mother and baby homes.” It was in this context that the case of “Miss X” entered the public domain in 1992, shattering the antiabortion consensus that had dominated Irish society.

In 1992, the Irish state initiated a High Court injunction against a fourteen-year-old rape victim — known only as Miss X — and her parents, preventing them from leaving the country to access an abortion in Britain. When news of the injunction broke, thousands of people spontaneously protested around the country, demanding not only that Miss X be allowed to travel for an abortion but that she be allowed to access that abortion in Ireland.

Faced with thousands of angry protesters on the streets, the government paid for the parents of Miss X to appeal the injunction to the Supreme Court. With no sign of the protests dissipating and with threats of strike action in the air, the court ruled that Ireland’s “pro-life” constitutional amendment did in fact allow abortion in these circumstances, because the young girl was suicidal.

Certainly, it is possible to isolate any set of words with the Constitution and lend them a specific, if surprising, set of meanings. However, it is highly doubtful that this somewhat unusual ruling was a result of abstract legal logic alone. Instead, it appears to have been as much the result of pressures exerted on the court by the sheer scale of mass mobilization.

The X case was a turning point in the struggle for abortion rights in Ireland and a powerful reminder that our rights are not gifts bestowed from on high by progressive or enlightened individuals. It also illustrated the fact that when faced with all the complexities of a real-life case and not an abstract debate around fetal rights, the antiabortion consensus collapses.

The 1992 controversy irrecoverably changed public opinion on abortion. But political cowardice and inaction by mainstream politicians meant that women in Ireland would continue to be dragged through the courts to access fundamental health care while others would die waiting for a lifesaving abortions.

A New Wave of Struggle

Between 1980 and 2018, at least 180,000 women and girls traveled from Ireland to access abortion services in another country. Abortion was accessible for people living in Ireland if you had the means and the ability to travel, but it was a different story for poor, migrant, and marginalized women, in particular women of color. While abortion rights activism was evident in Ireland, it usually involved small numbers of dedicated activists, organizing in the face of political indifference and public apathy.

But a new phase in Irish pro-choice activism began in 2012, laying the foundations for one of the largest political mobilizations in the history of the state: the referendum to repeal the Eighth Amendment. In spring 2012, on the twentieth anniversary of the X case judgement, small numbers of pro-choice activists began to reorganize themselves, determined to make meaningful progress on abortion rights after decades of inaction and ineffectual legal strategies that put the emphasis on lawsuits, legal reform, and appeals to the European courts.

Engaging in a variety of tactics, activists intensified their work, developing networks of support for women traveling abroad for abortion and working with the Abortion Support Network. They developed links with online abortion providers like Women on Web and WomenHelp.org and developed creative ways to ensure that abortion pills could navigate customs controls and get into the hands of those who needed them.

The first ever “March for Choice” took place in September 2012 and successfully mobilized thousands of activists around the country. These protests were particularly significant as this was the first time that significant numbers of people mobilized in support of an explicitly pro-choice agenda. While most Irish activists considered themselves to be pro-choice, they had usually stopped short of mobilizing around this explicit demand, fearing it would alienate Irish society, which was understood to be ultraconservative on the issue.

This approach was profoundly challenged by a tragic event in autumn 2012. Unlike the 1992 X case, it became impossible to contain. In October 2012, Savita Halappanavar, an Indian woman living in Ireland, presented to hospital miscarrying at seventeen weeks. Doctors felt that due to the presence of a fetal heartbeat they could not treat her, citing the Eighth Amendment. This proved fatal, and she died of three days later of septicemia.

The death of Halappanavar provoked a wave of national and international horror at Ireland’s punitive abortion regime. Thousands gathered in silent vigil outside the Irish parliament, the Dáil, immediately after the story broke. Days later, tens of thousands marched in Dublin, with simultaneous demonstrations across the country, chanting “Never Again.”

The Irish political establishment, which had managed to successfully maintain the conspiracy of silence around abortion since the 1992 X case, found itself under enormous pressure to at least appear to act. Still fearful of a vocal antiabortion lobby, political parties supported the introduction of legislation to permit doctors to perform lifesaving abortions while simultaneously copper-fastening the criminalization of abortion with doctors and women who had illegal abortions facing criminal penalties of up to fourteen years in prison.

The Repeal Campaign

The death of Halappanavar galvanized the pro-choice movement into an intense campaign to pressure the government into calling a referendum to repeal the Eighth Amendment. Activists began mobilizing through protests, art, street theater, and various forms of direct action. Mindful of the discords that had plagued the pro-choice movement in the 1980s, activists began to develop broad-based coalitions of groups and organizations, all of whom had different positions on abortion but were willing to come together in support of Repeal, as the campaign became known.

The movement was further emboldened when in 2015 Ireland became the first country in the world to legalize same-sex marriage by a popular vote. For many abortion activists, this pointed to a dramatic change in Irish culture and society. The positive, joyful tone of “Yes Equality” was seen as a model for a future Repeal campaign where abortion could be framed as a positive good for women and society more generally.

In 2016, a group called “Strike for Repeal” organized around a global demand for women to strike on International Women’s Day. Their actions inspired thousands of young people across the country to walk out of schools and universities, shutting down Dublin’s city center for several hours.

As a direct result of this intense campaigning by pro-choice activists, a referendum on Repeal continued to feature intensely on the political landscape, reaching a point where it became politically damaging for politicians to pander to the antiabortion right or, most significantly, to appear to have a cautious and indifferent approach to abortion. Once the referendum was announced, activists united together under an umbrella-type campaign, Together for Yes (TfY), which became the official campaign for Repeal.

What was most significant about TfY was that unlike previous abortion campaigns in Ireland, activists began from the perspective that people were movable on abortion. Activists saw their role as convincing voters, some of whom might be personally against the idea of abortion, to support removing the constitutional ban and allow women to make these decisions for themselves. Repeal, they argued, was not about a person’s personal views on abortion; rather, it was about the type of society that we wanted to live in.

Victory

There were some limitations to the “official” TfY campaign. Too often its spokespeople were professionals, like doctors and lawyers, and it focused too much on the so-called “hard” cases, rarely foregrounding “the right to choose” as a demand.

This meant that in the aftermath of the referendum, despite the scale of the victory, the movement struggled to effectively oppose newly proposed abortion legislation that was highly restrictive. Access to abortion was strictly regulated, especially after twelve weeks of pregnancy, and it continued to be a criminal offense for doctors to provide abortions outside the strict circumstances provided for in the new law.

While this cautious strategy was born out of the difficult and painful struggle for abortion rights in Ireland, it was frequently and effectively challenged by the movement’s own grassroots activists, who gave Repeal its energy and dynamism through their conviction that change is possible. From the day the referendum was announced, thousands of activists on the ground — the majority of whom were women who had never been politically active before but felt that this campaign was too important to simply watch from the sidelines — began canvassing, knocking on doors, and talking to people one-to-one about abortion. This was the mainstay of Repeal.

When the votes were counted in May 2018, the campaign had reversed the result of 1983. This time, there was a two-thirds majority in support of the right to abortion.

In the immediate aftermath of the referendum, journalists and political commentators heralded the result as nothing short of revolutionary. They interpreted it as part of the growing liberalizing and “maturing” of Irish society. The role of grassroots activism was quickly and firmly marginalized by such analysis as mainstream politicians and pundits scrambled to “own” the campaign, proclaiming that they been in favor of abortion all along.

These were usually the same individuals who had criticized the Repeal campaign as a failure due to its apparent lack of political leadership. The problem with this type of analysis is that it understands politics as something that happens in corridors of power and influence. It is oblivious to any form of democratic “leadership” that does not involve a charismatic leader, ignoring the women and men, young and old, who were blossoming into leadership roles in every town and community on the island.

A Necessary Choice

If there is one key lesson to be taken from the struggle for abortion in Ireland, it is that it is possible to win enthusiastic, majority support for abortion rights through popular campaigning and mobilizations. In Ireland, it was only when the movement shifted its tactics away from the supposedly pragmatic emphasis on legal strategies and political and international lobbying — all of which were designed not to alienate voters — that it began to make progress. By doing so, it convinced people not simply to tolerate abortion but to embrace it as a necessary choice for an equal and inclusive society.

This approach proved highly effective in the more recent struggles for abortion rights in Argentina and Colombia. A strategy of this kind also played an important role in the recent decisive defeat of the right-wing initiative to strip abortion rights from the Kansas state constitution. Furthermore, mobilizing and winning the majority to the idea of abortion rights offers people a sense of ownership over the struggles and the subsequent rights won. It reminds us that rights belong to us and are not gifts that can be bestowed or stolen by judges and politicians at will.

It is also politically the most effective way to insulate abortion rights them from future attacks. In Ireland today, even the antiabortion movement concedes that attempting to restrict abortion access would be difficult to achieve, given both the scale and the nature of the Repeal victory.

Even more significantly, Repeal has emboldened a new generation of activists who understand the power of grassroots mobilization and who are learning that Repeal was just one victory, albeit a a deeply significant one, in the larger battle for reproductive justice. They understand abortion not just as a set of individual rights but as part of a larger struggle for gender, sexual, health, and economic justice for all.