The Democratic Case for Abortion in Ireland
Who is more trustworthy: the populace or the people they elect? The role of politicians in a representative democracy is to represent the political interests of their constituents— but they do not always do this. Sometimes they argue that they should represent what they consider to be the “common good,” rather than what the people want. Witness the reaction of some British Members of Parliament to the Brexit vote, in which they suggested it should be overturned: Here were representatives openly refusing to represent the majority’s wishes. Rather than respect democracy and take instruction from the public, politicians now make the argument that their conscience and what they think is right matter more than a majority decision.
A similar discomfort with democracy can be seen in relation to abortion in the Republic of Ireland. Despite continued public discussion about the issue, politicians seem unwilling even to engage in a substantive attempt at updating the Constitution of Ireland to reflect the views of contemporary citizens. Debates about abortion, which is banned in almost all cases in Ireland, have been among the most heated and controversial in this country’s history. In 1983, a referendum on abortion rights resulted in the Eighth Amendment to the Constitution, which guarantees the right to life of the unborn. The referendum generated intense activism from antiabortion groups, galvanized by Roe v. Wade and the legalization of abortion in the United States. Following a very emotional campaign, the antichoice side won by a landslide; 67 percent of Irish voters opted for the Eighth Amendment. The pro- and antichoice camps have remained at war ever since, and to many the Eighth Amendment feels like an unresolved issue. Times have changed quickly, and Ireland’s shifting relationship with religion and the rest of the world has opened up the public attitude towards abortion rights. Many think it is time to look again at the question of the Eighth Amendment.
Irish prochoice groups, to their credit, have for a long time demanded another referendum on the Eighth Amendment. They want to take this issue back to the people. The Abortion Rights Campaign (ARC) argues that a referendum is necessary “so that full reproductive health services, including abortion, can be made available in line with best medical practice, international human-rights norms and the will of the majority of people in Ireland.” ARC is right about the people’s will: Opinion polls consistently show that, though Irish people may not be united on the extent to which the Eighth should be altered, they agree that the law needs to be looked at afresh. There is a democratic feeling that change is necessary.
However, the political class seems less than keen on handing this question to the demos. “This is something that is so traumatic and sensitive and personal for some people and families,” said former Fine Gael Taoiseach Enda Kenny in 2016. He agrees with Fianna Fáil leader Micheál Martin that there should not be a referendum just yet. Irish politicians remain scared of antichoice activists, and are wildly out of touch with popular opinion. Much like the problem with Westminster elites in the United Kingdom, what happens in the Dáil chambers does not necessarily reflect the feeling of voters in Cork or even Wicklow.
In an attempt to placate those demanding a referendum, Kenny published the Programme for Partnership Government in May 2016. This 156-page document on how to make life “better for Irish people” called for the setting up of a Citizens’ Assembly “to discuss a range guarantees
of constitutional and societal issues,” including abortion. The assembly, made up of 99 participants selected from various demographics from across Ireland, was instructed to meet for five weekends to listen to evidence, scrutinize experts and produce an advisory report on abort ion rights. On April 23, 2017, the assembly voted. It decided the Eighth Amendment should be replaced rather than repealed, and that Ireland should allow abortion to be legal without restriction up to 12 weeks of pregnancy.
Unsurprisingly, many antichoice campaigners were unhappy. One such campaigner I spoke with denigrated the assembly, dismissing it as unworthy of being called deliberative or democratic. Essentially, this campaigner described the assembly as a gathering of people and experts who solely want to repeal the Eighth Amendment.
But this simply is not how the process was undertaken. Antichoice and pro choice witnesses were given a chance to be heard. On the fourth weekend of the assembly’s meetings, Cora Sherlock, deputy chairperson of the Pro Life Campaign, spoke to it alongside other antichoice groups. One witness told the assembly her daughter with Down syndrome is alive partly thanks to the Eighth Amendment.
However, it was not just antichoice groups that had misgivings about the assembly. “The overall feeling was that this was a way of postponing having to make a decision,” says Ailbhe Smyth, convener of the Coalition to Repeal the Eighth Amendment, who made the prochoice case to the assembly. Despite her misgivings, Smyth tells me, “We were determined to engage in a very full way [because] we knew it was going to provide a forum for discussion, and our perspective was that we’d get in there to engage with it democratically and make our views known.”
Smyth says the animated debate at the assembly was heartening. “By the end of the series of sessions, [the citizens] were engaged and determined and clearly felt that they had been well-informed and that it was their job to make up their own minds.” An antichoice campaigner I spoke with disagreed; she believed the process was too rushed, and that anything as complex as abortion needs much more time to be discussed with any degree of sincerity.
Watching filmed footage of the five weekends, it becomes clear that the process was quite deliberative and spirited. Citizens got up from their tables to question doctors, advocacy workers, lawyers and professors; they sometimes even shouted at the people before them. In short, the Assembly members took on their role head-on and made the experts sweat.
The assembly showed that, while politicians might be unwilling to trust the public on important issues like abortion, citizens are more than capable of taking such mat ters seriously. Professor David Farrell, an expert in constitutional reform processes at University College Dublin, explained to me the reasoning behind the assembly. He said that while “the only way you can change [the Eighth] is with a referendum,” adding that there are “no other means under our Constitution to change the Constitution itself,” the assembly was about opening up the discussion. It was about “allowing more people to become informed about the complexities,” he said.
Now that the debate has been ignited, or rather, made even more lively and public than it already was, the time feels right for a proper democratic vote. The more Irish politicians stall over the referendum, the more they reveal their own distrust of the electorate—and their fear that voters will say, “Change the Eighth.” The antichoice side is particularly worried about giving people ownership over the issue of abortion. While antichoice campaigners claim with certainty that the people of Ireland are “prolife,” they do not seem willing to put the question to a vote of the Irish people.
The truth is that the largely prochoice result of the Citizens Assembly has frightened both antichoice activists and much of the political class. They are worried that a referendum would lead to an overhauling of the Eighth Amendment, and they are right to worry: A poll for the Irish Times at the end of last year found that 75 percent of Irish people support repeal of the Eighth. This is a very positive moment for those of us who support women’s rights in Ireland. People are better informed and more reflective about the issue. There is a thirst for modernization of Ireland’s laws, and it is incumbent upon prochoice activists to galvanize this public sentiment. The next step must be a referendum so that Irish citizens can be encouraged to stand up for women’s freedom and autonomy in a real and lasting—and democratic—way.
Update: The prime minister of the Irish government, Leo Varadkar, confirmed in June that there will be a referendum on the Eighth Amendment sometime in 2018.