Professors debate Ireland’s eighth amendment at LawSoc event

Mairead Enright said that “there is a black hole waiting for us to fill after the repeal of the eighth amendment” which could either be “filled with conservatism” or trust in women.”

NEWSTrinity College Dublin Students’ Union, in association with the Law Society, held a debate on Monday evening: “Repealing the Eighth Amendment: The Legal Consequences”.

The speakers included pro-choice activists Mairead Enright and Professor Fiona de Londras, as well as pro-life campaigner and law expert Professor William Binchy and focused on the legal interpretations of the eighth amendment to the Irish Constitution, which asserts “the right to life of the unborn”, and the potential fallout from its repeal. However, all speakers also drew upon ethical reasoning when making their arguments.

Mairead Enright, a lecturer in law at the University of Kent and long-term critic of Ireland’s abortion policy, opened the debate arguing in favour of repealing the eighth amendment. Enright worked on drafting the model Access to Abortion Bill 2015, intended it as a blueprint of a post-eighth amendment abortion policy.

She highlighted the numbers of Irish women who travel abroad to access abortion services, arguing: “[Ireland’s legal] regime does not prevent the loss of unborn life, it displaces it to other countries.” Enright said she favoured a legal framework based on the “express recognition of the right to bodily integrity” and warned that that the eighth amendment has “left us with a very stunted legal conception of women as persons.” She said that “there is a black hole waiting for us to fill after the repeal of the eighth amendment” which could either be “filled with conservatism” or trust in women.

Professor William Binchy, a family law expert and pro-life activist, made the case against repealing the eighth amendment. He was himself was involved in the 1983 referendum campaign to insert the constitutional article protecting “the right to life of the unborn.”

Binchy opened his remarks by describing any debate about abortion restricted purely to the legal sphere as a “waste” if there was no reference to morality and ethics, arguing that the repeal of the eighth amendment would be a process essentially “designed to bring about the termination of lives.”  

Professor Binchy defended the eighth amendment from criticisms surrounding its failure to address issues such as the right to travel for an abortion, saying that such legal complications were inevitable and that the eighth amendment succeeds in preventing the legalization of abortion. He compared the termination of the life of a “very small human being with little brain power” to the death of a person with dementia or limited brain function.

Binchy stressed the importance of maintaining a moral interest even “within the range of private zones”, drawing an analogy with abuse that had occurred “behind closed walls” in Irish institutions in the past.

Professor Fiona de Londras, Chair of Global Legal Studies at the University of Birmingham and who also provided her expertise in the drafting of the Access to Abortion Bill 2015, continued the case in favour of repeal. Professor de Londras focused on “what a legal regime might look like should the eighth amendment be repealed.” She said that although the abolition of all legal restrictions around abortion, modelled on Canada, was “attractive” to many it was in practice unworkable.

Ireland would be likely to follow international practice in having a sliding scale whereby restrictions increase on abortion the further the pregnancy progresses, she claimed. “We must not reproduce the unhelpful, vague, practically meaningless language that we currently have.”

 She criticized the proposals of the Labour Party for focusing on “nebulous terms which have an existence only in the life of the Irish constitution” and said we should avoid “the unhelpful, vague, practically meaningless language” that surrounds the abortion debate.

Professor de Londras urged that we should not enshrine into law a “totemic right to access abortion which is then not capable of being exercised”. Arguing against “the apparent consensus” that there should be legal provisions specifically focused on the access to abortion in cases of rape, saying that such a framework would be unworkable.

She instead argued for a provision that would allow for access to abortion on “many types of health grounds.” She said any post-8th Amendment legislative framework must be designed to ensure that any woman who wants and qualifies for an abortion be able to access one “Irrespective of location, nationality, age and means”. De Londras argued that in a liberal democracy where people are capable of making moral decisions for themselves, there must be a “workable, fair, accessible legal system through which to do it.”

Professor Gerry Whyte, associate law professor, in tune with the previous speakers included in his contribution a moral argument against abortion which grounded his views on repealing the eighth amendment. White said that it would be “naïve in the extreme to think that if we repeal the eighth amendment that there would be an implied right to life of the unborn”, and that the eighth amendment is necessary to ensure such a right is upheld in law.

He stated that he could not “differentiate between life at that very early stage and life at later stages.” Whyte concluded, on the basis that he could find no “qualitative difference” between the life of a foetus and a human being at any stage of life, that he had reservations about the morality of repealing the eighth amendment.

The Students’ Union, under the direction of President Lynn Ruane, earlier this year established a campaign to ‘Repeal the Eighth.’ A student referendum in February 2014 saw an overwhelming majority of 73% vote for the SU to adopt a pro-choice position and campaign in favour of repealing the eighth amendment. Tonight’s debate was the latest in a series of events and actions organised by the students’ union during the academic year.

Speaking to Trinity News after the event, Ruane said the SU’s campaign had so far been primarily focused on education and “allowing students to hear the information and come to their own conclusions.” Now in the run-up to the election, she said, the SU planned to step up its active campaigning efforts and lobby TDs on the issue. Ruane’s primary concern, she said, is to ensure that the SU campaign continues beyond the end of her term as president in June.

Rory O'Neill

Rory O'Neill is a former Managing Editor of Trinity News, and a History graduate.