Saturday 20 October 2018

Words of the law that left the door open to years of debate

The Eighth Amendment has never made clear exactly what 'unborn' life was being protected

Advice: Peter Sutherland
Advice: Peter Sutherland

Eoin O'Malley

In February 1983, then Taoiseach Garret FitzGerald asked his very young attorney general, Peter Sutherland, for advice on the proposed Eighth Amendment. Abortion was already outlawed in Ireland, and there was no political will to introduce it. This was a country where only married couples could access contraceptives, and then just with their doctor's permission.

Abortion was outlawed by the 1861 Offences Against the Person Act, which stipulated life imprisonment for illegally procuring an abortion. The section of that act related to abortion became irrelevant in the UK in 1967 by its Abortion Act that year. Nobody really thought that Ireland was going to follow Britain in legislating for abortion. That was as likely as Ireland putting a man on the moon.

But there were genuine fears that abortion might be introduced by the courts. In the US, the 1974 Supreme Court decision in Roe v Wade had the effect of making it much more difficult for states to restrict access to abortion. The Irish Supreme Court might have been unlikely to immediately follow suit, but since the 1960s it had been pretty active in inventing rights that had the effect of liberalising Irish laws in ways the Oireachtas would never have. The McGee judgment in 1973 effectively told the Oireachtas that because of the newly discovered right to marital privacy it could not outlaw contraceptives. Privacy had been an issue in Roe v Wade, so it was not completely crazy to think an Irish Court might later go down this route.

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