The Eighth Amendment of the Constitution Act 1983 was an amendment to the Constitution of Ireland which inserted a subsection recognising "the equal right to life of the pregnant woman and the unborn". Abortion had been subject to criminal penalty in Ireland since at least 1861; the amendment ensured that legislation or judicial interpretation would be restricted to allowing abortion in circumstances where the life of a pregnant woman was at risk. It was approved by referendum on 7 September 1983 and signed into law on 7 October 1983. In 2018, it was repealed by the thirty-sixth amendment.
The amendment was adopted during the Fine Gael–Labour Party coalition government led by Garret FitzGerald, but was drafted and first suggested by the previous Fianna Fáil government of Charles Haughey. The amendment was supported by Fianna Fáil and some of Fine Gael, and was opposed by the political left. Most of those opposed to the amendment insisted that they were not in favour of legalising abortion. The Catholic hierarchy and many lay Catholics supported the amendment, but it was opposed by the authorities of other mainstream churches. After a bitter referendum campaign, the amendment was passed by 67% voting in favour to 33% voting against.
In 2018, a referendum was passed, known as the Thirty-sixth Amendment of the Constitution of Ireland, which repealed the Eighth Amendment.
Changes to the text
The Amendment inserted a new sub-section after section 3 of Article 40. The resulting Article 40.3.3° read:
Background
As per sections 58 and 59 of the Offences against the Person Act 1861, abortion was already illegal in Ireland. However, anti-abortion campaigners feared the possibility of a judicial ruling in favour of allowing abortion. In McGee v. Attorney General (1973), the Supreme Court of Ireland had ruled against provisions of the Criminal Law Amendment Act 1935 prohibiting the sale and importation of contraception on the grounds that the reference in Article 41 to the "imprescriptable rights, antecedent and superior to all positive law" of the family conferred upon spouses a broad right to privacy in marital affairs.
The Pro-Life Amendment Campaign (PLAC) was founded in 1981 to campaign against a ruling in Ireland similar to the United States Supreme Court ruling in Roe v. Wade. Prior to the 1981 general election, PLAC lobbied the major Irish political parties – Fianna Fáil, Fine Gael and the Labour Party – to urge the introduction of a Bill to allow the amendment to the constitution to prevent the Irish Supreme Court so interpreting the constitution as giving a right to abortion. The leaders of the three parties – respectively Charles Haughey, Garret FitzGerald and Frank Cluskey – agreed although there was little consultation with any of their parties' ordinary members. All three parties were in government over the following eighteen months, but it was only in late 1982, just before the collapse of a Fianna Fáil minority government, that a proposed wording for the amendment was produced.
Oireachtas debate
The Eighth Amendment of the Constitution Bill 1982 was introduced on 2 November 1982 by Minister for Health Michael Woods. The bill introduced by the Fianna Fáil minority government proposed to add Article 40.3.3° to the Constitution, with the wording shown above.
On 4 November, the Fianna Fáil government led by Charles Haughey as Taoiseach lost a motion of confidence in the Dáil, leading to the November 1982 general election. After the election, a coalition government of Fine Gael and the Labour Party was formed, with Garret FitzGerald as Taoiseach. Minister for Health Barry Desmond declined to reintroduce the amendment; instead, it was Minister for Justice Michael Noonan who on 2 February moved to restore the Eighth Amendment to the Order Paper.
Attorney General Peter Sutherland advised that the wording as proposed was dangerously flawed. Speaking against the original wording during the Dáil debate Alan Shatter argued:
To remedy the perceived weaknesses in the original wording of the amendment bill, the government proposed an amendment to the bill during the committee stage with the following alternative wording:
This alternative wording was criticised by the opposition for not being "pro-life". Speaking against the alternative wording Michael Woods said: