Thirty-sixth Amendment of the Constitution of Ireland

The Thirty-sixth Amendment of the Constitution of Ireland (previously bill no. 29 of 2018) 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 once signed into law by President Michael D. Higgins on 18 September 2018.
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 [to the] 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, 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 (2010) 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 The 2013 Act repealed the 1861 Act, and makes "destruction of unborn human life" a crime.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, holds an annual "March for Choice" in Dublin. Anti-abortion groups have 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 (Labour, Green Party, Social Democrats, Sinn Féin, and Workers' Party) 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°.
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:
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:
The Policy Paper also proposed that:
On 26 March 2018, Tánaiste Simon Coveney announced he would support legislation on the lines of the policy paper, but suggested that this should be entrenched by requiring a two-thirds supermajority in the Dáil for any later amendment. This was aimed at voters prepared to accept the policy-paper regulations, but wary of subsequent liberalisation. Coveney's proposal was dismissed as unconstitutional. On 27 March 2018, the cabinet agreed the general scheme of the proposed "Regulation of Termination of Pregnancy Bill 2018", which health minister Simon Harris summarised that evening in the Seanad. The scheme was published online the following day.
Even after the referendum had passed, "Abortion [would] 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.
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 (98–18) and the short title (96–20); there was also a vote on the final stage (97–25). 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.
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.
On 9 March 2018, Minister for Housing, Planning, and Local Government Eoghan Murphy established the statutory Referendum Commission to oversee the referendum campaign, with High Court judge Isobel Kennedy as chair.
Both Fine Gael and Fianna Fáil had allowed their TDs a free vote on the issue in the Dáil. However, although Fine Gael "cannot adopt an official party position because members have been afforded a freedom of conscience vote on issues to do with the referendum", on 21 April, Taoiseach and Fine Gael leader Leo Varadkar launched a Fine Gael "Vote Yes" campaign for Yes-supporting party members, along with party colleagues, including Minister for Health Simon Harris and Fine Gael referendum coordinator, Josepha Madigan.
On 8 May 2018, due to controversy over the origin, number, content, and targeting of adverts on social media, Facebook announced that it would block advertisements placed by foreign entities, most of whom are in the United States, and limit them to adverts placed by Irish organisations. On 9 May, Google announced that it was blocking all adverts on the referendum from its advertising platform and YouTube, citing concerns around the integrity of elections.
On 9 May, the fund-raising web pages of Together for Yes, Amnesty Ireland, and Termination for Medical Reasons were subjected to a denial-of-service attack.
On 20 May, the parents of Savita Halappanavar called for a Yes vote, her father saying, "I hope the people of Ireland will vote yes for abortion, for the ladies of Ireland and the people of Ireland. My daughter, she lost her life because of this abortion law, because of the diagnosis, and she could not have an abortion. She died." After the Yes vote won, Halappanavar's father thanked the people of Ireland.
On 23 May, CNN reported that American-based anti-abortion groups, such as "Let Them Live", have flown to Ireland, in order to sway voters to vote No to the amendment. They entered Ireland by lying to Irish border control about their reason for coming to Ireland, claiming they were only in Ireland to document the event and nothing more.
On 24 May, The New York Times reported that thousands of Irish citizens living around the world were travelling back to Ireland to vote in the referendum – postal or absentee voting is not generally allowed. These voters coalesced online under the social media hashtag "#HomeToVote" and in-person during their transport. The journeys resembled a similar movement in advance of the 2015 Irish constitutional referendums that resulted in the approval of the Thirty-fourth Amendment of the Constitution of Ireland concerning same-sex marriage. In some cases, the travelling voters may have been in breach of Irish law, which removes the right to vote in a referendum from most non-residents, as only those who have lived away for less than 18 months were legally entitled to take part in the referendum. The use of the #HomeToVote hashtag was part of a larger campaign effort from activists who utilised social media, particularly Twitter, to connect and communicate with citizens. Together for Yes used social media to highlight the lived experiences of women endangered by the abortion ban, placing what was viewed as a private issue into the public to "mobilise emotions" online, in the hope that they would vote "Yes".
A number of political parties, religious bodies and other organisations took a freedom of conscience vote or position, calling on individual members to decide for themselves.
When voters were asked how they voted, exit polls showed the following results:
When respondents were asked if they would support the amendment, opinion polls showed the following results:
During the course of the referendum campaign some surveys asked if respondents supported the proposed legislation allowing termination for any reason for the first 12 weeks of pregnancy. The following results were recorded:
Polls opened at 07:00 IST (UTC+1) and closed at 22:00 IST on 25 May 2018. Twelve offshore islands voted the day before, to allow for possible delays delivering ballot boxes to the count centres. Counting began at 09:00 on 26 May. All Irish citizens entered on the electoral register were eligible to vote. A total of 3,229,672 people were on the annual electoral register (as of 15 February 2018) and an additional 118,389 electors were added to the supplementary register by the closing date of 8 May 2018, an unusually high number of late registrations. Dáil constituencies were used to organise the voting, with the returning officer for each appointed by the city or county council, and results sent to the national returning officer in Dublin. Although a close result had been expected by observers, an exit poll conducted by The Irish Times predicted a 68% Yes result, while one conducted by RTÉ predicted a similar Yes result of 69.4%. The day after the vote, Save the 8th campaign conceded defeat.
The turnout of voters, at 2,159,655, was the highest thus far in any Irish constitutional referendum. This beat the previous record, which had been held by the 2015 marriage equality referendum, by 209,930 votes.
All four regions voted Yes, ranging from 57.5% Yes for Connacht-Ulster to 75.5% for Dublin.
According to exit polls by The Irish Times and by RTÉ, every age group voted Yes, except those aged 65 and over, with the highest Yes vote being from the youngest age groups. The details were:
According to the exit polls, both genders voted Yes, with women doing so somewhat more heavily than men. The details were:
According to the exit polls, both urban and rural voters voted Yes, with urban voters doing so more heavily than rural ones. The details were:
Taoiseach Leo Varadkar said: "I think what we've seen today really is the culmination of a quiet revolution that's taken place in Ireland for the past 10 or 20 years. This has been a great exercise in democracy, and the people have spoken. The people have said we want a modern constitution for a modern country, that we trust women, and we respect them to make the right decision, the right choices about their own health care."
Tánaiste Simon Coveney said: "For me, the margin of victory is important, but equally important is that there is no Dublin versus the rest or no urban/rural divide – in virtually every part of the country, people have voted in big numbers to allow the government and the Oireachtas to change Ireland for the better."
Orla O'Connor, director of the National Women's Council and co-director of Together for Yes, thanked "Yes" voters, saying: "This is phenomenal. This was a grass-roots, people campaign, and I think what today will show is that this is a people's referendum. Presuming that these exit polls are correct, the public haven't just spoken, this is a resounding roar from Irish people about the horrors of the Eighth and how women should no longer be treated as second-class citizens in our society."
Cora Sherlock, of the LoveBoth campaign, said: "This is a very sad day for Ireland, that people have voted for abortion. We need to remember what they have won. All that is being offered is abortion. There has been no talking about why Irish woman travel, what options could have been put on the table."
Declan Ganley tweeted: "I've been thinking about conscientious objection. I will not pay for the killing of Ireland's unborn children, I cannot be a party to it. So, there will need to be a way to exempt conscientious objectors taxes from paying for them in any way, shape, or form."
Catholic Bishop Kevin Doran said: "While the Catholic Church is a family, and nobody ever gets struck off, what I'd say to a Catholic who voted Yes is this: If you voted Yes, knowing and intending that abortion would be the outcome, then you should consider coming to Confession." This statement caused controversy, leading to former President of Ireland Mary McAleese weighing in to say that baptised voters showed that freedom of conscience trumped the Church's view of mortal sin.
UK Prime Minister Theresa May contacted Taoiseach Leo Varadkar, and posted to Twitter, saying: "The Irish Referendum yesterday was an impressive show of democracy which delivered a clear and unambiguous result. I congratulate the Irish people on their decision and all of #Together4Yes on their successful campaign." However, she later reiterated her position that abortion is considered a devolved matter in Northern Ireland, and, accordingly, that the UK government would not intervene. This followed a statement from Arlene Foster, leader of the Northern Ireland's anti-abortion DUP, whose votes were needed to give May's Conservative government its parliamentary majority, that the issue should be decided by the Northern Ireland Assembly.
Senior Conservatives, such as Commons Health Committee chairperson Sarah Wollaston and education minister Anne Milton, backed calls for a free vote on the issue, while Labour MP Stella Creasy said she would table an amendment on the matter to the Domestic Violence Bill and said that over 150 parliamentarians had expressed support for the change, and Labour's shadow Attorney General Shami Chakrabarti called the issue a test for May's feminism. May's spokesperson refused to say whether Conservative MPs would be given a free vote in such a "hypothetical" situation, but said that there had been free votes on the abortion issue in the past.
The result re-opened the debate about the legality of abortion in Northern Ireland. In all constituent countries of the United Kingdom but Northern Ireland, abortion is legal in many circumstances under the Abortion Act 1967. Abortion in Northern Ireland has historically been considered a devolved matter, to be decided by the Northern Ireland Assembly.
In Belfast, a rally took place advocating for the liberalisation of abortion laws in Northern Ireland, where there were calls for the UK government to step in. UK intervention to liberalise abortion laws in Northern Ireland is opposed by the Democratic Unionist Party, then largest party in Northern Ireland and which supported the then-minority Conservative government in the UK.
The Provisional Referendum Certificate was signed by Barry Ryan, the Referendum Returning Officer, on 28 May 2018, and published in Iris Oifigiúil on 29 May. Challenges against the validity of the referendum must be brought within seven days of publication.
Three petitions challenging the result were made within the deadline, by Joanna Jordan, Charles Byrne, and Ciarán Tracey. These alleged variously that the Referendum Commission information booklet was biased and that the electoral register was unreliable, with unexplained deletion of older voters' details and failure to delete those of emigrants who were thus able to travel back to vote despite being ineligible. Jordan's unsuccessful petition against the children's rights amendment delayed its enactment from 2012 until 2015. Enactment of the 2015 marriage equality amendment was similarly delayed for three months.
The applications seeking leave to bring judicial review proceedings were heard in the High Court from 26 to 29 June. Tracey withdrew and leave was refused for another man, Diarmaid McConville, to take over his application. On 20 July, Justice Peter Kelly ruled against the other two applicants, saying they had failed to provide prima facie evidence of anything likely to have changed the result of the vote, but left them a week to challenge this in the Court of Appeal. Costs were awarded against both applicants. Byrne did not appeal, while Jordan's appeal was heard on 17 August.
Separately, on 31 July, the Court of Appeal rejected McConville's appeal against the refusal to allow him to take over Tracey's petition application, but gave him time to apply to the Supreme Court, which on 16 August denied him leave to appeal. On 27 August, the Court of Appeal dismissed Jordan's challenge, with Justice George Birmingham stating that "Jordan's assertions were so entirely devoid of substance that we can only conclude they were made with reckless and irresponsible abandon". Before the 31 August deadline, Jordan applied to the Supreme Court for leave to appeal; the court decided on 7 September to refuse to hear the appeal, thus allowing the amendment to be signed into law by President Higgins on 18 September 2018.
Even though the referendum had been carried, abortion remained "illegal in almost all circumstances until the Oireachtas passes legislation providing otherwise", which the Government originally hoped to introduce into the Dáil in the autumn, and to have passed by the end of 2018. After the referendum, there were calls for the process to be sped up, and health minister Simon Harris said that the bill would be introduced before the summer recess and become law by the autumn. The Irish Times reported on 6 June that the Dáil second stage would begin on 11 July, possibly extending the Dáil term, and that remaining Oireachtas stages would be in September and October. The introduction of legislation was held up until after the processing of the petitions against the referendum result.
Media had speculated before the vote that a narrow Yes majority would encourage No-supporting legislators to obstruct or weaken the legislative provisions compared to the draft published in March. Conversely, media said afterwards that the large majority made such moves unlikely; in particular, Fianna Fáil opponents would not "stand in the way" of the "will of the people".
An updated general scheme of the Health (Regulation of Termination of Pregnancy) Bill 2018 was published by the Department of Health on 10 July. The final text was agreed by the cabinet at a meeting on 27 September and published the same day. Its second reading in the Dáil was introduced by minister Simon Harris on 4 October.
On 5 December, the Health (Regulation of Termination of Pregnancy) Bill passed final stages in the Dáil, where it was approved by 90 votes to 15 (with 12 abstentions). On 13 December, Seanad Éireann approved the bill by 27 votes to 5. On 20 December 2018, President Michael D. Higgins signed the bill into law, officially legalising abortion in Ireland for the first time for non-life-threatening reasons.
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