Eighth Amendment of The Constitution of Ireland - Background

Background

In 1983, abortion was illegal in Ireland under the Offences against the Person Act 1861; the Eighth Amendment was introduced to prevent it being legalised at any time in the future. Opponents of abortion sought the amendment partly because of fears that the Irish Supreme Court might infer an implicit right to an abortion in the provisions of the constitution. The court had already ruled, in the 1973 case of McGee v. The Attorney General, that 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. It was feared that this right might be extended to include the right to an abortion. There was further concern that the Supreme Court might take its lead from developments in judicial review in other nations, such as the controversial ruling of the United States Supreme Court in the 1973 case of Roe v. Wade. In January 1973 The US Supreme Court decided in favour of abortion in Roe v. Wade on privacy grounds; the same grounds as was used by the Irish Supreme Court in December of the same year to strike down a statutory prohibition on the importation of contraceptives.

The campaign to introduce a constitutional ban on abortion so as to prevent an Irish Roe v. Wade was begun by a group of anti-abortion campaigners under the banner of the Pro-Life Amendment Campaign (PLAC). Prior to the 1981 general election, PLAC lobbied all the major Irish political parties at the time – 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.