Women’s Legal Landmarks Celebrating the History of Women and Law in the UK and Ireland Edited by Erika Rackley and Rosemary Auchmuty HART PUBLISHING Bloomsbury Publishing Plc Kemp House , Chawley Park, Cumnor Hill, Oxford , OX2 9PH , UK HART PUBLISHING, the Hart/Stag logo, BLOOMSBURY and the Diana logo are trademarks of Bloomsbury Publishing Plc First published in Great Britain 2019 Reprinted 2019 Copyright © The editors and contributors severally 2019 The editors and contributors have asserted their right under the Copyright, Designs and Patents Act 1988 to be identifi ed as Authors of this work. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. 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Title: Women’s legal landmarks : celebrating the history of women and law in the UK and Ireland / edited by Erika Rackley and Rosemary Auchmuty. Description: Oxford, UK ; Portland, Oregon : Hart Publishing, 2019. Identifi ers: LCCN 2018034445 (print) | LCCN 2018035208 (ebook) | ISBN 9781782259787 (Epub) | ISBN 9781782259770 (hardback : alk. paper) Subjects: LCSH: Women—Legal status, laws, etc.—Great Britain—History. | Women—Legal status, laws, etc.—Ireland—History. Classifi cation: LCC KD734 (ebook) | LCC KD734 .W664 2018 (print) | DDC 342.4108/78—dc23 LC record available at https://lccn.loc.gov/2018034445 ISBN: HB: 978-1-78225-977-0 ePDF: 978-1-78225-979-4 ePub: 978-1-78225-978-7 Typeset by Compuscript Ltd, Shannon Printed and bound in Great Britain by TJ International Ltd, Padstow, Cornwall To fi nd out more about our authors and books visit www.hartpublishing.co.uk . Here you will fi nd extracts, author information, details of forthcoming events and the option to sign up for our newsletters. 92 Th irty-sixth Amendment to the Irish Constitution, 2018 FIONA DE LONDRAS On 25 May 2018 Article 40.3.3 of the Irish Constitution was repealed by majority vote in a referendum. Th e provision, introduced in 1983 and known as ‘ the 8th Amendment ’ , imposed a near- absolute ban on abortion in Ireland as a result of its recognition of the ‘ right to life of the unborn … with due regard to the equal right to life of the mother ’. Subsequent amend- ments introduced in 1992 ameliorated some of the worst eff ects of the provision by allowing for a right to travel to access medical services that were legal abroad, and a right to infor- mation on such services, albeit on a very tightly regulated basis. On 29 January 2018 the Irish Government announced that a referendum would be held to repeal Article 40.3.3 and replace it with the 36th Amendment to the Constitution ( ‘ Provision may be made by law for the regulation of termination of pregnancies ’ ). In March 2018 the Oireachtas passed the Th irty-sixth Amendment to the Constitution Bill 2018, and the referendum took place on 25 May 2018. Once certifi ed by the President (when all legal challenges to the referendum have been concluded), this will be followed by the introduction of new legislation allowing for lawful abortion in Ireland. Th e proposed new law would allow abortion without restriction as to reason up to 12 weeks, where there is a risk to the pregnant person ’ s life or a risk of seri- ous harm to her health aft er 12 weeks and until foetal viability, and in cases of fatal foetal anomaly without gestational time limit. Th is will replace the Protection of Life During Pregnancy Act 2013 , which only allows abortion where there is a real and substantial risk to the life of the pregnant person. It will also repeal legislation that censors, prohibits, and regulates abortion information. 1 I. Context Abortion has been a crime throughout the entire existence of the Irish state. Until 2013 this was by means of the Off ences against the Person Act 1861. Criminalisation was reaffi rmed in section 22 of the Protection of Life During Pregnancy Act 2013. 1 Regulation of Information (Services Outside the State for Termination of Pregnancies) Act 1995, s 16; Censorship Act 1929, s 7; Censorship Act 1946. 652 Fiona de Londras In 1983 the 8th Amendment was put to the People following a concerted eff ort by the Pro-Life Amendment Campaign, which leveraged the dominance of the Catholic Church, the intense conservatism of politics, medicine and law, and a period of extreme political instability to extract a promise from the Government that a referendum would be held. So strong was their infl uence that the referendum went ahead even though the proposed wording was opposed by the then Attorney General, Peter Sutherland, who expressed concerns about its lack of clarity and its potential to place Ireland in breach of its interna- tional human rights obligations in the future. 2 A majority voted in favour of its installation in the Constitution. Th is provision had signifi cant political and legal impacts that greatly restricted the reproductive agency of women in Ireland. Contraception only became legal in 1979,3 and then only for bona fi de family planning purposes (in practice, only for married women whose husbands consented). Women who became pregnant when unmarried were still routinely confi ned to carceral institutions such as Magdalene Laundries and Mother and Baby Homes.4 In that socially repressive context, the 8th Amendment was both a backlash against the limited gains of women ’ s liberation movements and a pre-emptive strike against any further such gains. It meant, in political terms, that even if the Oireachtas wanted to make abortion legal in anything other than the most limited circumstances of near-certain death for the pregnant woman it could not; any such legislation would be challenged and struck down as unconstitutional. It also meant that successive Governments could (and did) abrogate responsibility for this essen- tial part of reproductive healthcare, not even providing bereavement counselling for people who travelled to end a pregnancy following a diagnosis of a fatal foetal anomaly until 2016 when the UN Human Rights Committee found that Irish law violated the right to be free from torture, inhuman and degrading treatment or punishment under the International Covenant on Civil and Political Rights. 5 Th e legal impacts were also signifi cant. In spite of claims to the contrary during the 1983 referendum campaign, court cases were brought to ensure that the 8th Amendment would isolate women in crisis pregnancy to the greatest extent possible. Th e Society for the Protection of Unborn Children successfully litigated to ensure that foetal rights could be vindicated at the suit of someone not directly involved in a case because of the public inter- est involved in protecting unborn life, and also succeeded in securing injunctions against the provision of any kind of information or assistance to women about abortion services elsewhere.6 Women ’ s health initiatives such as Open Door Counselling and the Well Woman Centre were prevented from supporting women in making appointments for abortion in the UK. 7 Student activists – including Ivana Bacik, who contributes to this volume – were 2 Peter Sutherland ’ s 1983 advice on the 8th Amendment, published in the Irish Times , 13 January 2018. 3 Health (Family Planning) Act 1979 . 4 Concluding Observations of the UN Committee against Torture, Recommendation to Ireland Regarding the Magdalene Laundries (2011) . 5 UN Human Rights Committee, Mellet v Ireland , Comm No 2324/2013, UN Doc CCPR/C/116/D/2324/2013 (17 November 2016). 6 Attorney General (ex rel Th e Society for the Protection of Unborn Children Ireland Ltd) v Open Door Counselling Limited and the Dublin Wellwoman Centre Ltd [ 1988 ] 1 IR 593 ; Case C-159/90, Th e Society for the Protection of Unborn Children Ireland Ltd v Grogan [ 1991 ] ECR I-4685 . 7 ibid. Th irty-sixth Amendment to the Irish Constitution, 2018 653 threatened with imprisonment for printing the contact details of abortion clinics in student union publications. Women and girls were stopped at ports if they were considered to be travelling for abortion. Legally, pregnancy was a trap from which a woman could not escape, or at least not without undertaking signifi cant illegal activity. Activist groups such as the Women ’ s Information Network and the Irish Women ’ s Abortion Support Group did what they could subversively to distribute information, providing material and moral support to women who travelled to England for abortion. However, basic amenities such as telephones were not yet available in every home (some- times not even every village), and many women were simply forced to continue with their pregnancies. Th e harrowing reality of the impact of the 8th Amendment was made clear to all in 1992 when the High Court enjoined a teenage girl, who had been the victim of rape and was suicidal, from travelling for an abortion.