Thirty-sixth Amendment of the Constitution of Ireland
The Thirty-sixth Amendment of the Constitution of Ireland is an amendment to the Constitution of Ireland which permits the Oireachtas to legislate for abortion. The constitution had previously prohibited abortion, unless there was a serious risk to the life of the mother.
The proposal is often described as the Repeal of the Eighth Amendment, referring to the 1983 constitutional amendment which guaranteed the right to life of foetuses, making abortion illegal unless the pregnancy is life-threatening. The 2018 amendment replaces Article 40.3.3° of the Constitution, which was added in 1983 and amended in 1992.
The bill was introduced to the Oireachtas on 9 March 2018 by the Fine Gael minority coalition government, and completed its passage through both houses on 27 March 2018. It was put to a referendum on 25 May 2018, and was approved by 66.4% of voters. The amendment took effect when signed into law by President Michael D. Higgins on 18 September 2018.
Background
The British Offences Against the Person Act 1861, which made "unlawful procurement of a miscarriage" a crime, remained in force after Irish independence in 1922. The Eighth Amendment of the Constitution, adopted in 1983, which declares "the right to life of the unborn... equal right to life of the mother", was instigated by the Pro-Life Amendment Campaign for fear that the 1861 prohibition might be weakened by liberal legislators or activist judges. In 1992, the Supreme Court ruled in the X Case that abortion is permitted where pregnancy threatens a woman's life, including by risk of suicide. No regulatory framework within the limited scope of the X case judgement was passed until the Protection of Life During Pregnancy Act 2013, impelled by A, B and C v Ireland in the European Court of Human Rights and death of Savita Halappanavar in 2012 after miscarriage. The 2013 Act repealed the 1861 Act, and makes "destruction of unborn human life" a crime. In the three years 2014–2016, a total of 77 legal abortions were performed under the 2013 Act.Illegal surgical abortions in Ireland have been practically unknown since the UK's Abortion Act 1967 allowed Irish women to travel to Great Britain for a legal abortion. The 13th and 14th amendments to the constitution, passed in 1992 after the X Case, guarantee the right to information about foreign abortions and to travel abroad for an abortion. The number of women at UK abortion clinics giving Irish addresses peaked at 6,673 in 2001, and was 3,265 in 2016. The decline is partly due to unregulated use of abortion pills illegally delivered from online pharmacies.
While left-wing parties and feminists opposed the 1983 amendment, and have advocated its repeal, this was not supported by the two largest parties for most of the interim: Fianna Fáil, and Fine Gael. In the 2010s, while both parties' leadership opposed broad liberalisation, some accepted the argument for abortion in cases like fatal foetal abnormalities and pregnancy resulting from rape or incest, which are not permitted by the 1983 amendment. These became the focus of campaigning after the 2013 Act. The Abortion Rights Campaign, a pro-choice alliance formed in 2012, held an annual "March for Choice" in Dublin. Anti-abortion groups countered with a "Rally for Life". In the run-up to the 2016 general election, a number of parties committed to a referendum to repeal the Eighth Amendment and a group of feminist law academics published model legislation to show what a post-Eighth Amendment abortion law could look like.
A Fine Gael–led government under Taoiseach Enda Kenny took office after the 2016 election with a programme which promised a randomly selected Citizens' Assembly to report on possible changes to the Eighth Amendment, which would be considered by an Oireachtas committee, to whose report the government would respond officially in debates in both houses of the Oireachtas. Leo Varadkar replaced Enda Kenny as Taoiseach on 14 June 2017 and promised to hold a referendum on abortion in 2018. The Citizens' Assembly, chaired by Supreme Court judge Mary Laffoy, discussed the issue from November 2016 to April 2017 with invited experts and stakeholders, and voted to recommend repealing the existing text and replacing it with an explicit mandate for the Oireachtas to legislate on abortion. It also made recommendations for the consequent legislation, which were more liberal than media commentators had expected. The assembly's report was considered from September to December 2017 by a special Oireachtas committee of 21 members, which also discussed the issue with invited experts; its recommendations by majority vote were broadly similar to those of the assembly. However, it said that because of difficulties legislating for rape and incest, abortion should be legal up to 12 weeks' gestation without restriction; on the other hand, it did not favour socio-economic grounds for abortion after 12 weeks. In January 2018, Minister for Health Simon Harris opened the Dáil debate on the committee's report by listing the numbers from each county who travelled to Great Britain for an abortion in 2016. Fianna Fáil leader Micheál Martin declared that he had changed his view on the issue and gave his support for Repeal of the Eighth Amendment and for the committee's recommendations.
Further action was called into question by a July 2016 High Court ruling that a foetus was a child within the meaning of Article 42A of the Constitution, which guarantees children's rights. The Supreme Court agreed to expedite the government's appeal of the decision, and on 7 March 2018 overturned the High Court judgement, ruling that a foetus was not a child and had no rights other than the right to life mentioned in Article 40.3.3°.
Changes to the text
The Amendment replaced the text of Article 40.3.3°, which read:Note: The first clause was added by the Eighth Amendment approved by referendum in 1983. The second and third clauses were added by the Thirteenth Amendment and the Fourteenth Amendment respectively approved by referendum in 1992.
As the Amendment passed, the subsection was replaced with the following text:
Subsequent legislation
The Department of Health published a policy paper on "Regulation of Termination of Pregnancy" on 9 March 2018. This provided an outline of the policies for legislation which would repeal and replace the Protection of Life During Pregnancy Act 2013 if the Amendment of Constitution Bill was passed in a referendum. Under this scheme, abortion would be permissible in circumstances where:- there is a risk to the health of a woman, on assessment by two doctors, without a distinction between physical and mental health;
- there is a medical emergency, on assessment by one doctor;
- there is a foetal condition which is likely to lead to death before or shortly after birth, on the assessment of two doctors;
- up to 12 weeks of pregnancy without specific indication, with a time period after an initial assessment by a medical practitioner and the termination procedure.
- medical practitioners would have a right of conscientious objection;
- the termination of pregnancy in circumstances other than those under the proposal would be a criminal offence, but that a woman who procures or seeks to procure a termination of pregnancy for herself would not be guilty of an offence.
Even after the referendum had passed, "Abortion remain illegal in almost all circumstances until the Oireachtas passes legislation providing otherwise". Health Minister Simon Harris, speaking a few days before the referendum, said the Government hoped to introduce the bill in the Dáil in the autumn and to have passed it by the end of 2018.
Oireachtas debate
The Thirty-sixth Amendment of the Constitution Bill was introduced by Minister for Health Simon Harris. The debate on the Second Stage began on 9 March 2018. The Bill passed all stages in the Dáil on 21 March.The main vote on the bill was at second stage, with 110 in favour and 32 against. Of the 16 who did not vote at second stage, five voted in favour in subsequent votes. At committee stage, there were votes on Section 2 of the bill and the short title ; there was also a vote on the final stage. Fianna Fáil TDs had a free vote although Micheál Martin was reported to be upset at how many voted against the bill. Fine Gael also gave a free vote, including for ministers.
| Party / group | For | Against | Absent | Notes |
| Fine Gael | 42 | 2 | 6 | Seán Barrett and Peter Fitzpatrick voted against. |
| Fianna Fáil | 22 | 21 | 1 | Billy Kelleher did not vote |
| Sinn Féin | 21 | 1 | 1 | Carol Nolan voted against, losing the party whip for three months. She later resigned from the party. Peadar Tóibín did not vote; Gerry Adams voted in Tóibín's seat by mistake on second stage. |
| Labour Party | 7 | 0 | 0 | |
| Solidarity–People Before Profit | 6 | 0 | 0 | |
| Independents 4 Change Group | 7 | 0 | 0 | |
| Social Democrats–Green Party | 5 | 0 | 0 | |
| Rural Independents Group | 1 | 6 | 0 | Michael Harty voted in favour. |
| Unaligned Independents | 4 | 2 | 2 | |
| Total | 115 | 32 | 10 |
In the Seanad, the second stage was held on 27 March, with a 35–10 vote in favour. Remaining stages were the following day, with the bill passed 39–8 at committee stage and 40–10 at final stage. Eight of the thirteen Fianna Fáil senators voted against, as did two of nineteen from Fine Gael, and independent Rónán Mullen.
;Notes: