How the 8th amendment vote was lost and won

The troubled history of the eighth amendment to the Irish constitution raises many questions about imperfect, democratic methods used to achieve lasting constitutional change, some of which are surprisingly relevant to the EU withdrawal referendum.

The Irish constitution, (1), is written in clear, easily understood language and published in booklet form. It describes the institutions of the republic and the basic principles upon which its laws are founded. Children are introduced to the constitution and encouraged to study it, in school. There is no equivalent document in Britain. There are many sources, collectively referred to as "the Constitution" but they are not readily accessible to citizens as a single, comprehensible document. The constitution of Ireland has been the focus of vigorous debate since its first draft appeared in 1937. Any proposal to amend the constitution requires a referendum of all registered voters. A simple majority of those voting is required to approve an amending act.

The constitution was amended to protect the life of the “unborn”, in 1983. Anti-abortion activists campaigned to enshrine protection for the foetus, by affording it equal legal protection with the life of the mother. The campaign arose, in part, out of a perception among conservative activists and politicians that a liberalising mood was sweeping the county and hitherto sacrosanct principles were no longer safe. Charles Haughey, (2) the controversial leader of the opposition, used the amendment as a way to consolidate his conservative support while dividing the coalition government. Noisy politicians and civic commentators asserted that moral standards were in decline and they wished to enshrine conservative views in the constitution. Abortion was deemed a suitable issue for their attention because it was emotionally highly-charged and therefore less amenable to liberal debate than other aspects of the law. Senator Des Hanafin (3) of the opposition Fianna Fail party & William Binchy (4), catholic lawyer & academic, played prominent roles in the Pro-life campaign. Conservative campaigners asserted that termination of pregnancy would soon be made freely available unless the eighth amendment was passed. The amendment was intended as an obstacle to further liberalisation of the law. As we now know it had the effect of delaying reform but did not prevent it.

Senator Mary Robinson (5) was a prominent pro-choice campaigner. She won the argument in liberal Dublin but faced vocal opposition in provincial areas. She won many admirers for her articulate, principled stand and went on to become Ireland’s first woman President. The 8th amendment was partly a final stand for traditional views about the role of women, partly cynical political posturing but it was also an argument about opposing views of society with women featuring prominently in the debate.

The amendment provided for the following, words to be added in Article 40.3.3 of the constitution;
“The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and as far as practicable, by its laws to defend and vindicate that right.”

The term “unborn” was not defined and the time at which life emerges was unspecified. The amendment was the subject of heated, emotive arguments, with more passion than real evidence. The catholic church authorities were strongly in favour but most other churches and many civil society organisations were opposed. Many people objected to the vague wording and difficulty in assessing how the law would be applied. The government was split. The Taoiseach, Garret FitzGerald, campaigned against the amendment proposed by his own government, while many of his colleagues campaigned in favour.

Conservatives led the debate with a well organised, emotionally charged, campaign using graphic images of aborted foetuses and sad tales of women who regretted their experience of abortion. Pro- choice campaigners used abstract arguments about civil liberties and women’s rights. Conservatives succeeded in portraying the pro-choice lobby as elitist liberals, out of touch with ordinary people.

The amendment was passed with a 66.9% majority but a relatively low turnout of 53.7% The amendment was rejected in most of the Dublin metropolitan area but was approved in rural areas and in smaller cities and towns which voted heavily along traditional conservative lines.

A common misconception is that abortion was banned in Ireland arising from the eighth amendment. In fact abortion was curtailed but not forbidden. The law faced a highly-publicised test in the notorious X case in 1992 (6). The High Court issued an injunction forbidding a fourteen-year-old girl, who became pregnant as a result of rape, from travelling abroad for a termination. An appeal to the Supreme Court (7) resulted in the injunction being lifted and a judgment that, since there was evidence the girl had attempted suicide, abortion was permissible in this case under the provision for “the equal right to life of the mother”. This judgment was seen at the time as revolutionary and the Pro-Life Campaign accused the judges of “opening the floodgates to abortion”. In practice the Supreme Court X case judgment of 1992 did allow for abortion in limited circumstances but, in the absence of more specific legislation, activists and lawyers continued to argue as to what was and was not allowed and doctors struggled to make sense of very unclear legal parameters.

A particularly notorious case concerned Savita Halappanavar, whose troubled pregnancy led to a disputed diagnosis of still-birth in 2012, in Galway University Hospital (8). While doctors assessed her case and pondered what to do, Savita developed sepsis and died. A coroner’s inquest found Savita died by “medical misadventure”. Several enquiries followed which amplified a sense of shock and public outrage at her death. Savita’s sad case did more to illuminate the failings of the eighth amendment than years of political arguments. It was generally acknowledged that fundamental change was required but there was no agreement on the means to do it. The Protection of Life during pregnancy Act of 2013 was an attempt to set clear guidelines for medical practitioners but it raised as many questions as it answered. It was widely agreed that the eighth amendment to the constitution greatly complicated matters and needed to be reformed but few could agree on how it should be done.

Public opinion shifted decisively over the years. The panic over liberalism which seemed so real to many voters in 1983 seems ludicrous from the viewpoint of 2018. The catholic church fell into decline, arising from a long list of proven cases of sexual, physical and psychological abuse of children and young women. The church is now so diminished that it played almost no role in the referendum campaign of 2018, on the reasonable assumption that anything it said might inflame anger and inspire voters to support repeal in even greater numbers. The political landscape has also been transformed and the conservative opposition which was so dominant in 1983 is a seriously depleted force in 2018. Most importantly, the 8th amendment acquired a human face over the years and it was the face of Savita Halappanavar. Conservatives still produced disturbing images of aborted foetuses but they were answered by protesters holding the smiling image of Savita.

The issue of abortion exploded into public view from time to time as more controversial cases came to light. Politicians agreed there was a need to reform the law and amend the constitution but few had the will to engage in a deeply controversial debate. Court appeals based on human rights legislation required political action but populist politicians were unable to find a way to distil the complex issues raised by abortion into the fiendishly clear and simple terms required by the constitution.

The Irish government established a constitutional convention in 2012 to look into areas requiring reform and to make recommendations. This body, involving one third politicians and two thirds private citizens, did not consider abortion but it was proposed to set up a second convention in 2016. This was overtaken by electoral events and a new citizens’ assembly was established, to examine questions including challenges from an ageing population, abortion, procedures for referenda & climate change. This was a civilian assembly with no politicians involved and much more effective for it.

The citizens’ assembly was, as ever, highly controversial in itself. Who would select the members & how would they be chosen? A market research company was commissioned to find 99 citizens and 99 alternates, representative of the wider population by age, gender, location & social class. A Supreme Court judge, Mary Laffoy, was appointed as chairperson of the assembly.

The citizens’ assembly set to work, mostly at weekends at a seaside hotel, in Malahide. The members were paid expenses but no fees. They were given a budget and resources to call expert witnesses and to invite submissions from the public. The convention decided to deal with abortion first. An expert advisory panel was appointed consisting of a medical lawyer, two obstetricians and two constitutional lawyers. In excess of 13,000 submissions were received, mostly online, from members of the public and civil society bodies, including detailed personal histories. The assembly was well publicised and there was great public interest in its proceedings. There was a widespread sense that the assembly had been delegated to make decisions on behalf of the people, although that was not really true. The assembly was charged with discussing and analysing certain issues & making recommendations. There was, however, a general sense of relief that a difficult issue had been assigned to a representative body, free of political factionalism. The rest of the population and politicians, with the exception of a minority of ideologues, were largely happy to rely on its recommendations, and use them as cover to avoid making hard choices of their own.

The convention took longer than expected, heard evidence and explored the issue in exhaustive detail. The members finally voted on a series of resolutions and produced a report recommending that the eighth amendment should be removed and that the Dail (parliament) should be allowed to legislate detailed provisions for termination without restriction up to twelve weeks of gestation, under more restrictive terms up to twenty two weeks, and without time limit where the life of the mother was in danger or in cases of terminal foetal abnormality.

The convention's unexpectedly clear and reformist report was followed by predictable controversy. It was alleged the selection of members was flawed, the members were biased, the advisers were biased, there were too many urban members, some areas had no representation, the convention was rushed, the convention was too slow and so on. Political considerations required the assembly report should be considered by a Dail committee which called its own experts and went over much of the ground already covered by the convention. Further controversy attended this political committee as its deliberations began to take shape, in line with the citizens’ assembly; it was badly advised, too hurried, too slow, a waste of time, too radical, too conservative, re-inventing the work of the convention and so forth. After much debate the new Taoiseach, Leo Varadkar, who is himself a medical practitioner, committed to enacting amending legislation and a further referendum. The government augmented its case by publishing draft legislation for abortion, broadly in line with established practice in many continental European states and with the report of the citizens’ assembly.

Conventional political wisdom was highly sceptical, the new leader was taking on a challenge that defeated his predecessors for decades, it was too ambitious, too radical and too hasty and would surely fail. The task was further complicated by the government's fragile hold on power, sustained by a volatile coalition including rebellious independents and reliant on a much-criticised confidence agreement with the main opposition party, who were hostile to abortion, as they had been in 1983. It was considered brave, bordering on reckless, to proceed with legislation and a new referendum however that is precisely what Varadkar did.

The debate on the 36th amendment was noisy but calmer and more detailed than the heated bluster of the original 8th debate. The existence of a large body of evidence, like the Savita Halappanavar case, and the work of the citizens' assembly transformed the arguments from liberal principles to real life stories. The focus had moved from the abstract defence of the “unborn” to the rights and welfare of identifiable, vulnerable women. The government was mainly united and most other parties supported the amendment. The main opposition party opposed the amendment but their leader, Michael Martin campaigned in favour, a potentially career-ending move which was vindicated by the result.

Speculative arguments based on emotion were generally dismissed although they were attempted, by opponents of abortion, throughout the debate. Complex questions around the respective rights of the mother and foetus had been distilled, by years of argument and painful disclosure, to a binary choice. The question, put to a vote of the entire electorate on the 25th of May 2018, was that the text of subsection 40.3.3 of the constitution should be replaced with the following text;

“Provision may be made by law for the regulation of termination of pregnancy”

The new constitutional provision was, as intended, clear, sparse and easily understood. The proposal was approved by 66.4% of those who voted, with 64.1% participation. More votes were cast in favour of repeal in 2018 than the total of all votes cast in 1983. Repeal gave the Dail the power to enact laws to terminate pregnancy and removed the prior wording of Article 40.3.3.

Every constituency, but one, approved the vote by substantial majorities. The one dissenting constituency, Donegal, was almost evenly split. The urban versus rural divide of 1983 had vanished. The conclusions of the citizens’ assembly weren't as wildly eccentric as had been thought. In fact the assembly had a much clearer view of their fellow citizens ultimate choice than the, allegedly expert, professional politicians.

With hindsight it’s clear that professional politicians aren't necessarily best placed to deal with complex emotive issues. Party politics distorts individual judgment and clouds rational analysis. The citizens’ assembly was highly effective as a means of focussing deep, sustained attention on issues that are not amenable to rapid-fire, contentious & partisan debate. The citizens’ assembly has been strongly vindicated by the referendum on the 36th amendment. The assembly is due to continue its work, analysing other complex aspects of the law and governance.

It is also clear that the people are perfectly capable of making bad choices if they are presented with poorly considered proposals, lack full information or their attention is distracted by transient or secondary considerations. Irish public opinion was deeply divided on the question of conservatism vs reform in 1983. There was a perception that liberalism had gone too far and this had become a party political issue. Taoiseach Garret FitzGerald, a noted liberal, was out of step with much of his own party and with the political mood generally. The public debate was much concerned with an undefined tidal wave of liberal threats and less focussed on the rights and needs of nameless women. Voters in 2018 were in a much less politically charged state of mind. They had the benefit of a well-considered proposal with masses of supporting evidence and years of preceding debate to fall back upon.

The eighth amendment to the constitution lacked clarity in definition and its practical implications were obscure. Voters' perceptions were driven by the political mood rather than comprehensive factual evidence or a long term view. It was proposed by a divided government, with no clear legislative proposals. It was not subject to detailed rational analysis before polling, much less the fine scrutiny of the citizens’ assembly. The wording of the amendment left numerous questions unanswered and sooner or later those questions forced themselves into public view until they became unavoidable in the shape of human tragedies like that of Savita Halappanavar and her family.

The eighth is not the only example of a failed constitutional amendment having to be repealed. The United States adopted the 18th amendment in 1919 with the best of intentions and launched itself into the chaos of prohibition. The Volstead act did not require a popular referendum but it was driven by a powerful electoral sentiment, expressed in state and federal ballots. The “noble experiment” (9) failed immediately. Little thought had been given to the practical application of the new law. There were many contradictory and confusing provisions relating to state enforcement and religious and medicinal use. Alcohol continued to be available to those who could afford it. Criminal empires emerged to circumvent a badly-considered law opposed to long established human behaviour. The population at large gave their verdict on prohibition by continuing to imbibe and eventually the costly experiment was abandoned by the 21st amendment of the constitution in 1933, after Franklin D Roosevelt assumed office.

We can draw some general conclusions from these failed attempts at constitutional innovation. Politicians, who love to legislate because it makes them look active, are often the worst people to decide on the fine details of complex issues which defy easy categorisation in party political terms.
Politics is driven by fads in public opinion which can shift dramatically as the mood changes. Long-range decisions require long-range thinking. When decisions about the long curve of human behaviour or policy are made to satisfy short-term political needs, there is a high probability of failure.

Campaigners for the 8th amendment to the Irish constitution, like their American predecessors campaigning for prohibition, hoped to make an irrevocable change in human behaviour based on information commonly available, and the public mood, at the time. Campaigners believed, in both cases, that constitutional change would be permanent and immovable. In both cases the original decision was found to be defective in practice and was repealed. Emotion triumphed over rational arguments in the vote for the 8th amendment. Emotion was harnessed in support of rational arguments and hard evidence in reversing the original decision.

Women played prominent roles in both enactment and repeal movements in the USA & Ireland. Prohibition was as much about the emerging voice of female voters and revulsion at domestic violence as about alcohol. The eighth amendment was fought on liberalism vs conservatism as much as abortion. These background issues were not legislated upon but they were prominent in public debate and thinking at the time of the respective amendments. Professional politicians did little to bring light to the issues in the failed amendments but they were important players in enacting repeal. These two constitutional amendments can be described as experiments, testing the ability of constitutional strictures to control events in the real world. In both cases the amendment failed to take account of enduring realities, the need to provide for abortion and the ancient human preference for alcohol. Campaigners assumed that aspects of real life which they found disagreeable could be reformed by changing the basic law. They were wrong. There are long-standing and immutable aspects of reality which no law can change. Attempts to change fundamental realities by changing the law risks making the law irrelevant or ineffective, as happened with prohibition in the USA and abortion in Ireland. People continued to drink alcohol in the United States, and Irish women continued to have abortions by using their freedom to travel, or by other means.

So what role, if any, can politicians play in constitutional change? Politicians crafted flawed responses to popular obsessions at a particular moment in time, regarding abortion and prohibition, and spent decades clearing up the mess they helped to create. They facilitated repeal by articulating numerous hard cases, shaping the debate and helping to distil the arguments down to a binary choice, repeal or retain. Factional politicians are more effective at making incremental changes in the current state of things than instigating fundamental change, based on abstract assumptions, which requires broad, thoughtful consensus.

Politicians have a role to play in sifting through the mass of issues clamouring for attention, setting broad themes and drawing attention to hard cases, but they should stand back from the fine detail and allow expert judgment guided by well-informed citizens, with adequate support, at critical junctures. I believe the citizens’ assembly model can be used in many other cases, not as a standing organisation, as a temporary gathering called together for a specific purpose, anonymous, focussed and time limited.

We can also learn something about the nature of law. If the law is too specific to current conditions or political concerns at the time of enactment it risks becoming overly restrictive or irrelevant with the passage of time. The law can lay down general principles but if it is prescribed in terms that are unclear or too specific to momentary concerns, it is highly likely that some contingency will be overlooked or evolving circumstances will require eventual repeal.

If the law in general is a distillation of human behaviour, reduced to timeless, general principles, then the constitution should be a further distillation, reducing the law to its bare essentials in language every citizen can reasonably expect to understand, including those of modest intellectual ability. The eighth amendment to the constitution of Ireland failed this test in that it was vaguely worded and unclear yet specific enough at a particular time to cause great confusion and interrupt clinical and legal judgements for decades afterwards.

Finally, there are numerous similarities between the troubled history of the 8th amendment and the controversy now raging over Britain’s exit from the European Union.

The debate leading to the EU referendum of 23rd June 2016 in the United Kingdom was emotionally charged with a notable lack of empirical evidence or calm analysis of vital details. Expert opinion was ridiculed or simply dismissed without consideration, by senior government ministers. The government was divided with the Prime minister on one side and many of his senior colleagues on the other. There was vicious partisan abuse and scheming during the campaign with many highly contentious claims, some since proven to be outright lies. Much of the debate focussed on the supposed evil effects of immigration although the precise future shape of migration policy was, and still is, hotly disputed. The precise form of Britain’s future relationship with the EU was dismissed as a trivial concern by many leading promoters of exit. Some claimed Britain would be closely aligned with Europe, with virtually no change while others favoured total rupture. Voters went to the polling booths armed with little more than gut feeling & emotion. Their choice was very finely balanced with opposite outcomes across regions, genders and age groups.

The consequences of the EU withdrawal referendum of 2016 are unclear in the minds of many voters and politicians, two years after the poll. Cabinet ministers are deadlocked on the meaning of the popular vote which they instigated. Party politics and infighting obscured rather than illuminated the issues & made it harder to reach constructive conclusions. The government is trapped by the outcome of the vote and is unable to agree a unified position on the future relationship with the EU. Detailed arguments are being thrashed out in a heated atmosphere, rife with factional competition, about the complexities of the customs union and the single market. This ongoing controversy, at the highest levels of government, long after the referendum votes were counted, is a clear sign of an inadequate decision which will almost certainly have to be revisited.

Short term political conflicts are determining long-term constitutional arrangements which will affect the lives of citizens and businesses for generations. A binary choice, which cannot be delivered in the terms described during the referendum campaign, was offered without full deliberation and with limited access to impartial, factual evidence. The full complexity of the issues involved are beginning to be considered long after the votes were counted. This chaotic process has many echoes of the abortion debate in Ireland and prohibition in the United States.

If the questions around EU membership had been distilled down to a few clear options with all the relevant facts and figures presented long before the referendum vote I believe it is likely a clear and emphatic choice would have resulted, one way or the other. A wafer-thin majority has delivered a disputed result and the chorus of bad-tempered debate grows ever louder. Failure to reach a clear decision and make informed choices has placed the UK in a very dangerous position.

It is now too late to alter the outcome of the referendum vote in 2016. Britain must live with the consequences and make the best of it, most likely through a long transition period during which the minute detail of the future relationship with Europe will be resolved. It is quite likely there may have to be a second popular vote to resolve many unanswered questions from the referendum of June 2016.

The model of the citizens’ assembly could be used in Britain to consider key choices, like the customs union or the single market, outside the party political arena. In fact a citizens’ assembly was convened to consider Brexit in the UK, directed by Prof Anand Menon of Kings College, London, funded by the Economic and Social Research Council (10). This assembly did not attract anything like the attention of its Irish predecessor, most probably because it took place after the vote in June 2016, too late to play any role in shaping the referendum debate or the result.

The political chaos following the EU referendum in 2016 is not conducive to calm analysis. I believe that, once the heated political arguments have cooled, citizens’ assemblies in various regions could be assigned the task of considering aspects of the future relationship in detail, distilling a complex range of issues down to manageable binary decisions with final discretion on the bigger scheme of things reposing in parliament with the option of a further referendum

Ireland, having made a poorly conceived and divisive choice in a referendum, had three decades to ponder the question in more detail before revisiting the issue in 2018. I hope the United Kingdom can resolve a clear and decisive choice on Brexit more speedily and at less cost.

J.G.F. 28.05.2018

Notes:
1. Constitution of Ireland
(http://www.irishstatutebook.ie/eli/cons/en)
2. Charles Haughey
https://www.rte.ie/archives/profiles/charles-haughey/
3. Senator Des Hanafin
https://www.irishtimes.com/news/politics/former-fianna-fáil-senator-des-hanafin-has-died-aged-86-1.3129495
4. Prof William Binchy
http://www.thejournal.ie/william-binchy-mary-robinson-abortion-debate-1626529-Aug2014/
5. Senator Mary Robinson
https://en.wikipedia.org/wiki/Mary_Robinson
6.RTE report X case 1992
https://www.rte.ie/archives/2017/0213/852332-x-case-controversy/
7. Supreme court, X case 1992
www.supremecourt.ie/supremecourt/sclibrary3.nsf/pagecurrent/9FA0AA8E8D261FC48025765C0042F6B3?opendocument&l=en
8. RTE report on Savita Halappanavar’s death
https://www.rte.ie/news/special-reports/2013/0418/382308-timeline-savita-halappanavar/
9 The Noble experiment
https://www.alcoholproblemsandsolutions.org/noble-experiment-of-prohibition-in-the-u-s/
10. Citizens’ assembly UK
www.citizensassembly.co.uk


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