While the United States enjoyed another long weekend filled with barbecues, beaches, baseball, and racing (the universal signs that summer is finally upon us), our friends across the Atlantic in the Republic of Ireland went to the polls to decide the fate of the country’s notorious Eighth Amendment.
On May 25th, the Irish came together for a public referendum and overwhelmingly decided to remove the Eighth Amendment to the Constitution of Ireland.
Americans think of the Eighth Amendment as the clause that protects citizens from excessive fines, bail, and, most importantly, “cruel and unusual punishment” at the hands of the government. Ireland’s Eighth Amendment, however, did no such thing and, in many cases, resulted in the direct opposite.
Since 1983, the Constitution of Ireland has barred any woman from seeking an abortion, with an extremely small amount of circumstances considered as exceptions. While abortion was already a prohibited practice, the Eighth Amendment guaranteed that the law could not be changed without first altering the Constitution, which is a far more complex and difficult process.
The text of the Amendment states:
“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.”
Put simply, both the unborn child and the mother had equal rights to life.
The practice of abortion has been outlawed in Ireland since the 19th century, a carryover from previous British rule, and has been enforced heavily by the state and socially by the Catholic Church. What was a simple, but dangerous, law aimed at enforcing Christian, and then Catholic, views on life became the crux of the view of women in the country. The law did not simply carry a widely implemented social stigma, but heavy penalties including a fine and up to fourteen years in prison. Incredibly, the original law was on the books until 2013 and carried a penalty of up to life imprisonment.
The arguments against prohibition feel tired and at this point, seemingly unnecessary for people to understand the negative consequences. Unfortunately, this is not the case. Ireland’s laws, backed by the Eighth Amendment, have led to repeated life and death scenarios for decades.
Doctors were left helpless as Dr. Savita Halappanavar was dying in front of them, victims of rape (who were diagnosed as being suicidal) were given no recourse, and women were forced into solitude to hide from the shame put on them by their communities. What was hailed as a law of compassionate protection of life offered very little to all involved.
The social stigma of an unwed mother and fatherless child, even in instances of rape, has led to significant prejudice and violence towards women. In matters of state, a woman’s presumed right to due process is essentially suspended at the hands of men.
Being a predominantly Catholic nation, the Church has long been an easy outsource for the Irish government for public necessities, such as schools, orphanages, and hospitals. The heavy involvement of the Catholic Church in matters of law gave rise to a long history of secrecy and coverups, shame, the essential kidnapping of children, and the discovery of a mass grave in County Galway.
The inexplicable decision of the Irish government to deny a woman her rights under all circumstances, coupled with the decision to allow a conservative religious institution to oversee matters of health and education, is directly correlated with such a horrid history and clouded the judgement of all involved. As Una Mullally of the Irish Times remarked, “Where was ‘No’ when babies were put in septic tanks?”
The arguments for the Amendment often feel like calls to rarely enforced Duty to Rescue laws, which maintain that if a person is able to act on behalf of another to protect or save a life, they are required by law to do so, even if this were to put themselves in danger. These laws exist in very few jurisdictions around the globe and are often ignored. How can one be blamed for not risking their life for another, even a stranger?
Some of these laws are more specific to landlords, property owners, teachers, and parents, whose role seems to make clear that they must act on the basis of morality, but even this has been called into question; even the Supreme Court decided that police officers do not necessarily have a duty to rescue.
But this is only the state attempting to solve an ethical question through legislation. It is easy to order someone to make the attempt, but the person who must actively risk their life may not find the decision to be so easy.
The reality is that the government is truly incapable of deciding what is moral and what is not. We, as individuals, must decide and act according to our beliefs. To face physical force for choosing to save oneself over another is remarkably inhuman and an ethical question posed to first year philosophy majors hardly makes the basis for sound law. If both individuals have a right to life, how can one be compelled to risk such a right?
The simple reality, regardless of one’s opinion towards abortion, is that the Eighth Amendment was terrible constitutional law. While it is clear that two individuals, separate from each other, possess equal rights to life and may protect themselves accordingly, it is not clear when looking at two persons who are physically and emotionally intertwined within each other. Regardless of scenario, weight will have to be given to the rights of either the unborn or the mother. In Ireland’s case, that weight has almost always gone against the mother. With such unclear results, it is unacceptable for this to be the standard legal precedent in all cases.
Despite heavy opposition, which included visitations by pro-life groups from America, the referendum to repeal the Eighth Amendment passed by nearly an identical margin to the original vote in 1983? It is important to remember that repealing the amendment only gives full restoration to the Irish government’s ability to create and change the law. It provides new grounds upon which to debate and bring this history to light. It will hopefully, at a minimum, provide for the privacy and security for a decision to be made by each individual, a decision that no one can claim is taken lightly.
* Rory Margraf is a writer whose work has been included at Freedom Today Network, Speak Freely, and the Foundation for Economic Education. He spends his free time studying Classical Liberalism and how to apply those tenets to his home in the United States, Northern Ireland, and abroad.
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