The principle barrier to reform of Ireland’s abortion laws is Article 40.3.3 of the Irish Constitution (Bunreacht na hÉireann). Article 40.3.3, also known as the Eighth Amendment, was inserted into the Constitution after a referendum in 1983. It states:
“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.”
Many constitutions and laws in other countries include provisions that respect unborn human life. However, Article 40.3.3 goes considerably further and gives the “unborn” an equal right to life with a conscious, sentient, thinking, feeling woman.
Article 40.3.3 has a range of harmful impacts on pregnant women’s health. It prevents doctors from acting in the best interests of their patients. It harms pregnant women's physical and mental health, and their rights to dignity and bodily integrity, and in some cases, it endangers a woman's right to life.
Reasons to Repeal Article 40.3.3
1. Because of Article 40.3.3, Irish law denies access to abortion in all cases, except where a woman’s life, as distinct from her health, is at risk. Abortion is not available in Ireland in cases of risk to a woman’s health and wellbeing, or in cases of rape, incest or foetal anomaly.
2. Article 40.3.3 forces at least 10 women a day to leave Ireland to access medical treatment that is taken for granted in almost every other European state. At least 160,000 women and girls have taken this journey since 1983 because of an unplanned or unwanted pregnancy, or a pregnancy that has become a crisis.
3. Article 40.3.3 leaves women who cannot travel with no option but to obtain illegal, and potentially unsafe, medication online to self induce an abortion or to continue with the pregnancy against their wishes. When women access the abortion pill, or medication purporting to be an abortion pill, online, they do so without medical supervision. If complications arise, fear of prosecution can deter or delay women from seeking medical health, risking damage to their health. Denial of abortion, being forced to travel to another state for abortion, and being forced to continue with a pregnancy all cause harms to women’s physical and mental health.
4. Article 40.3.3 prevents doctors from acting in the best interests of their patients. In order to perform a lawful abortion, doctors must allow a woman’s condition to deteriorate until a risk to her health is unambiguously a risk to her life. Article 40.3.3 also affects the care and treatment of pregnant women more generally.
5. Article 40.3.3 has led to laws that are discriminatory, unworkable and stigmatising of women. The Protection of Life During Pregnancy Act 2013 includes onerous procedures for access to lawful abortion (i.e. where there is risk to life); these procedures are more onerous when the risk to life is risk of suicide. The Act criminalises abortion in all cases except risk to life, with a maximum possible sentence of 14 years imprisonment.
6. Article 40.3.3 discriminates against women. The denial and criminalisation of health services that only women need discriminates against women, in particular women in poverty or living on low income, asylum seeking and undocumented women who cannot travel freely to other states, women with disabilities, minors and other woman who, for whatever reason, cannot cover the costs of travelling or cannot travel.
7. Article 40.3.3 violates international human rights standards. Numerous international human rights monitoring bodies, human rights organisations, and the World Health Organisation condemn the criminalisation of abortion and have consistently criticised Ireland's restrictive abortion laws.
8. Article 40.3.3 does not reflect the will of the Irish people. Opinion polls consistently show support for abortion on broader grounds than risk to life. There has never been a referendum to broaden the grounds for abortion. Proposals in 1992 and 2002 to further restrict the grounds for abortion (by excluding suicide) were rejected.