How Abortion Became Legal in Ireland

As the U.S. Supreme Court overturns Roe v. Wade, ending the right to abortion upheld for decades, Niall O’Dowd looks at how abortion became legal in Ireland in this extract from his book A New Ireland: How Europe’s Most Conservative Country Became Its Most Liberal.

On May 25, 2018, the Irish voters spoke loudly and vociferously and they voted for abortion up to twelve weeks with no restrictions. 66 percent voted for, 34 percent against.

Even the most optimistic repeal advocates had not dared to dream of such a big win.

Then Taoiseach Leo Varadkar welcomed the result. 

“What we have seen today is the culmination of a quiet revolution [that has been taking place] for the past 10 or 20 years.”

“I’m really overwhelmed and proud,” Dominique McMullan, 31, told the Guardian while wiping away tears. “With the marriage equality referendum and this, we are leading the way—we are a new country. The old Ireland is gone.”

“I grew up in an Ireland that was so different. It’s not just another country it’s another planet,” Ailbhe Smyth, Repeal the 8th Amendment leadership member, said on the referendum result.

The 8th Amendment

The path to the abortion referendum date had not been all smooth.

The 8th Amendment to the Irish constitution, the one at the heart of the abortion issue, was passed on  7 September 1983 by a 67 to 33 percent majority.

It meant, in practical terms, that a woman had three choices if she had an unplanned pregnancy, even as a result of rape or incest: They could illegally import the abortion pill from overseas, travel to Britain for an abortion where it had been legal since 1967, or allow the pregnancy to continue and give birth to the baby against her will.

The other option, available in 25 of the 28 European Union countries, was a termination in her own country, by lawful and medically professional means. The passage of the 1983 referendum seemed to shut the door on that last option forever.

Abortion was already a criminal act in Ireland, but pro-life groups feared like in the Roe vs. Wade decision in the US, that somehow abortion could be legalized through the courts. It was a time when abortion laws in many countries were being liberalized.

The proponents of the 8th Amendment wished to insert a clause into the constitution where the rights of the unborn baby and the pregnant mother were the same. There would be no equivocation on that, threatened suicide, or any such condition would not change the ban against abortion, the only exception was when the life of the mother was in mortal danger. But if that were the case and a fetal heartbeat could be heard it was bound to create an existential question for the doctors concerned. Abort with a heartbeat present, the doctor could risk criminal prosecution.

That 8th amendment read “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.”

It was a poorly devised amendment, one bound to lead to massive complications as doctors and legislators tried to define in “referendum parlance” how life was to be saved in a hypothetical critical situation.

However, this “hypothetical” question became a real situation in 1991 with The Miss X case which showed how emotional amendments make bad common-sense laws.

Miss X, who at 14, was raped by a neighbor and went to England for an abortion. The Attorney General became aware of her case and informed her parents they were acting in a criminal manner under the 1983 Amendment which grants equal rights to the fetus if they allowed their daughter to abort the baby.

The young girl returned home, in a suicidal state of mind, and subsequently lost one ruling before the Irish Supreme Court eventually ruled in her favor. As it turned out, she miscarried.

The Miss Y case in 2014, was equally tragic, a foreign national, who was raped and became pregnant in a war zone, ended up in Ireland seeking asylum. She tried to go to England for an abortion but was refused entry. Even when she became suicidal, she was still forced to have the child who was then given up for adoption.

The 1983 amendment was clearly problematic and a later provision, allowing abortion in the case of suicidal tendencies, clearly did not work as the Miss Y case proved.

Between the time of the Miss X and Miss Y cases, a catastrophic event occurred that dramatically changed the views of the Irish people on abortion.The Savita Halapannavar case in 2012, would reveal the fatal flaw in the wording of the 8th Amendment.

The woman in question was born in India, the same country as Taoiseach Leo Varadkar’s father, and just like the Varadkar’s, her life story too made a massive impact on Ireland. Irish Times journalist Kitty Holland delved deeply into the case in the course of her research for a superb book on the topic. “Savita: The Tragedy That Shook a Nation.”

Savita Andanappa Yalagi was born in September 1981 in Bagalkot, a city of 112,000 some 300 miles from its provincial capital of Bangalore in northwest India. She was beloved as the only girl—she had two brothers.

“She was always funny, always smiling, and always the little ruler,” says her mother. “We knew she would be a ruler of the house the moment she was born.” She was also the precious little sister of her brothers, Santosh and Sanjeev, who were hugely protective of her. “They would do anything she asked.”

Andanappa, her father, traveled widely in his job as an electrical engineer with Karnataka Electricity Board. The family moved to Belgaum city, 120 miles or so away, where Savita’s father got a better job. She proved to be a brilliant student in the local school.

After graduating in dentistry in 2004, Savita did a year’s internship with a dentist in Belgaum and would have stayed in the city but for meeting her future husband, Praveen Halappanavar.

Praveen had been working in Galway for two years working at the Boston Scientific plant, which makes medical devices.

They married in 2008 and set up a home in a rented apartment and later in a house and settled into a vibrant ex-pat Indian social scene in Galway. 

Savita passed her Irish board exams and registered, as a fully-fledged dentist in Ireland, on July 11, 2012. That same month she discovered she was pregnant. Three months later in October, her first gynecological scan showed no complications.

The Halapanavars were celebrating with an early baby shower because her parents were visiting when Savita felt the sharp pain she had been feeling in her pelvis getting worse. At about 9 a.m., Praveen phoned the maternity ward at University Hospital Galway.

On Sunday, 21 October 2012 at 9:35 a.m., Savita and her husband Praveen attended the gynecological ward at University Hospital Galway, without an appointment. She presented with sharp back pain.

She was assured it was just back pain and sent home but told to come back if it got worse. She returned later that day in great pain.

The midwife believed she was miscarrying and doctors agreed.

Journal.ie reported that “even with the partial miscarriage there was still a fetal heartbeat and under Irish law, the doctors claimed they could do nothing given the equal life amendment to the constitution, passed in 1983.”

A midwife told Savita as she struggled in pain she couldn’t have an abortion as “This is a Catholic country.”

Just after midnight on Monday, 22 October, Savita began vomiting violently and had a spontaneous rupture of membranes—that is that the bag of membranes around the fetus had burst and the fluid had leaked out,” Journal.ie reported.

“By 8:20 a.m., she was experiencing bleeding but her pain had eased. At this time, the consultant discussed the risk of infection and sepsis with her, explaining the need to continuously check for a fetal heartbeat.”

The following day—Tuesday, 23 October—Savita and Praveen asked about using medication to induce the inevitable miscarriage. They did not want a protracted waiting time when the outcome was inevitable.

The doctor kept telling them that as long as there was a heartbeat they could not perform what they called an abortion.

For three days they refused Savina and Praveen’s request. Eventually, Savina contracted sepsis and plunged into a death spiral.

“The nurse came running. She just told me to be brave and she took me near Savita and said, ‘Will you be OK to be there during her last few minutes?’ I said ‘yes.’

“It was all in their hands and they just let her go. How can you let a young woman go to save a baby who will die anyway? Savita could have had more babies.

“What is the use in being angry? I’ve lost her. I am talking about this because it shouldn’t happen to anyone else. It has been very hard to understand how this can happen in the 21st century.”

The story was reported across the world and became a sensation. One headline stood out. On 16 November, the main story on the India Times website was “Ireland Murders Pregnant Indian Dentist.”

The inquiry into Savita’s death heard evidence from the hospital consultant: “Under Irish law, if there’s no evidence of risk to the life of the mother, our hands are tied so long as there’s a fetal heart.” The consultant stated that if the risk to the mother was to increase, termination would then have been possible, but that it would be based on actual risk and not a theoretical risk of infection. “We can’t predict who is going to get an infection.” The parsing and analysis were clear, Savita died because of a ludicrous law barring termination of a non-viable fetus.

The Drive to Repeal the 8th

There were no quick fixes. Abortion was still the third rail of Irish politics but the 8th Amendment was fatally flawed. A referendum to overturn the 8th took five years to organize as constitutional arguments raged as to working and legal consequences.

In 2016, following on from the success of the same-sex marriage referendum in 2015, then Taoiseach, Enda Kenny, set about creating the correct conditions for the passage of a vote to repeal the 8th Amendment.

The decision was a bold step for Kenny, a rural TD whose constituency in Mayo was far more conservative than most.

By midsummer 2016, amid the euphoria and celebration of the 100th anniversary of Easter 1916, Kenny placed his plan before his Cabinet colleagues. The Cabinet approved another meeting of the Constitutional Convention to hear the merits and demerits. Kenny correctly guessed a positive recommendation there would go a very long way in ensuring victory.

The deliberations were not being held in a vacuum. The Tuam Babies story had grabbed headlines all over the world and continued to do so. And the Church went quiet as the debate heated up.

The Tuam Babies

In 2012, thanks to a dedicated amateur historian in the town of Tuam some thirty miles from Galway City, Catherine Corless presented convincing evidence that babies and young children from the local orphanage had been buried in a mass grave. There was a steady flow of new and damaging stories almost every week up to 2018, almost all of which reflected very badly on the church and state. In 2017, The New York Times featured a lengthy piece on its front page entitled “The Lost Children of Tuam.”

It was the story that would not go away. 

This Associated Press story was carried worldwide in 2017.  “A mass grave containing the remains of babies and young children has been discovered at a former Catholic orphanage in Ireland, government-appointed investigators announced Friday in a finding that offered the first conclusive proof following a historian’s efforts to trace the fates of nearly 800 children who perished there.”

It put the church on the defensive again, as stoutly as it had been in covering up for Father Brendan Smyth. It made their interventions in issues such as abortion rights appear downright brazen given their own history of callous and criminal behavior against defenseless children and babies.

An insight into the brutal fate suffered by children consigned to orphanages like the Tuam one can be gleaned from the following statement made by a medical doctor.

“A great many people are always asking what is the good of keeping these children alive? I quite agree that it would be a great deal kinder to strangle these children at birth than to put them out to nurse.”

Doctor Ella Webb June 18, 1924, spoke about illegitimate children in care in Ireland at the time.

Elaine Byrne, a columnist with the Sunday Business Post in Ireland, discovered the quote as she researched how on earth up to 800 children had been allowed to die and then had their bodies stuffed into a septic tank by the Bon Secours Sisters in Tuam, County Galway.

Her answer is clear; it was condoned and covered up by the political, religious, and medical establishments at the time. They were like God’s little executioners when it came to children out of wedlock.

The sin of having sex outside marriage was all-encompassing. The progeny of such sex was the devil’s spawn.

Issues such as the “Tuam babies” and weekly stories of high-level cover-ups of pedophiles meant the church had lost all moral influence as they girded up for the battle over abortion. Even the good priests and bishops found themselves tarred. 

An unthinkable development, the legalization of abortion, was about to be voted on, but the church was too mired in its own scandals to properly mobilize.

The Yes side in the Abortion Debate had learned well from the Same-Sex Marriage Debate, which showed that personal stories could and would trump all the theological and moral appeals of the No side.

After the election, 39 percent of Yes voters stated that a conversation or knowledge about someone they knew personally who had an abortion had influenced their vote.

Notwithstanding such personal stories, Taoiseach Enda Kenny felt clarity was the key to the successful passage of the amendment.

“There needs to be a real discussion here, and people would want to know if you’re going to take that (The 8th Amendment) out of the Constitution, what are you going to replace it with?” he asked.

He and his successor Leo Varadkar felt the strategy had to be just right. Same-sex marriage between two consenting adults was an easier sell than introducing abortion into what recently had been the most conservative country in the Western hemisphere. The fact was that abortion was an incredibly difficult issue on both sides.

Kenny knew the intricacies and warned his cabinet at the first meeting on the topic that If a referendum were to be held right now, “it would not be passed.” 

But Kenny’s hunch was also that after Savita and Miss X and Miss Y the country was ahead of the political class if the right tactics and message were utilized. Support had to come from the ground up, which is why, in the first instance, the imprimatur of the Constitutional Convention was vital.

His instinct was right. The Constitutional Convention was convened. The Irish Times reported that “Ninety-nine men and women gathered over five weekends in Malahide, Co Dublin, and heard from 40 experts in medicine, law, and ethics and six women directly affected by the amendment.” (The 100th person was the chairman, a distinguished judge, Mary Laffoy.)

The delegates would acquire incredible knowledge and an “almost uniquely comprehensive understanding” of abortion, Laffoy stated.

Given that, the result of their deliberations was astonishing: an extraordinary 87.3 percent wanted the amendment removed from the Irish constitution and 64 percent wanted no restrictions on abortions in the first twelve weeks of pregnancy.

The outcome was far more liberal than anyone had expected. It also showed the inability of the Catholic Church and its acolytes, such as the Knights of Columbus, to muster its base in opposition on arguably the most important issue of all to them.

From the convention, the recommendations went to The Oireachtas Committee dealing with constitutional referendums.

They met and backed up the citizen’s Constitutional Convention vote.

The Times reported that: “Led by Fine Gael Senator Catherine Noone, it would eventually mirror the decision of those 99 citizens, with the majority of TDs and Senators voting in favor of unrestricted abortion up to 12 weeks, and for access to terminations in the case of fatal fetal abnormality or where the life or health of the mother was at risk.”

The committee concluded its work in December 2017. Leo Varadkar had replaced Kenny as Taoiseach in June of that year. The last great battle between secular and religious forces in Ireland was now set. Varadkar just needed to announce the date. It was game on.

Debate in the national parliament on the abortion referendum was fraught as conservative members attacked the proposed referendum bill. Health Minister Simon Harris led the debate for the government.

“I hope that as a country we can no longer tolerate a law which denies care and understanding to women who are our friends, our sisters, our mothers, our daughters, our wives.”

Hildegarde Naughton of Fine Gael, previously against removing the 8th, changed her mind after being educated about the abortion pill being allegedly effective for ten weeks.” Abortion pills are being taken in Ireland and if we do nothing, some women in the not-too-distant future will rupture their uteruses and die,” she said.

There was one sensational development. Micheál Martin, leader of the main opposition party Fianna Fail, announced he was in favor of abortion up to 12 weeks. His own party at their annual convention had voted 3-1 against repealing the amendment.

He stated: “While I have supported different proposals to clarify the law and to address the threat to the life of the mother I have been broadly in favor of the law as enabled by the 8th Amendment.”

His decision was also influenced by the easy availability of the abortion pill. “Equally it is clear that the reality of the abortion pill means we are no longer talking about a procedure which involves the broader medical system.” However,” he added, “I believe we each have a duty to be willing to question our own views, to be open to different perspectives, and to respond to new information…I will vote accordingly.”

This admission of support from the leader of the party founded by Eamonn de Valera, whose constitutional ban on abortion was being ripped asunder, was a huge boost for the Yes side. The unseen factor was the abortion pill importance. Irish women were using it and it was apparently effective up to 12 weeks. So why should the much safer type of abortion, with medical assistance, not be approved?

Leo Varadkar announced that the referendum would be held on May 25, 2018. Ireland “already has abortion, but it is unsafe,” he said. “Women from every county are risking their lives” by obtaining abortion tablets through “the post.”

The 1983 abortion referendum was one of the nastiest political campaigns in Irish history, but the 2018 campaign was conducted with far more restraint. Perhaps it was out of respect for the memory of Savita, whose face appeared on Yes posters throughout the last few weeks of the campaign. As Irish Times writer Harry McGee noted:

“The Savita case was never too far away from people’s minds during the eight weeks.”

“I hope the people of Ireland remember my daughter Savita on the day of the referendum, and that what happened to her won’t happen to any other family,” Andanappa Yalagi told the Guardian newspaper by phone from his home in Karnataka in southwest India.

He said his daughter’s death at the age of 31 had devastated the family. “It’s still very emotional after five years. I think about her every day. She didn’t get the medical treatment she needed because of the 8th amendment. They must change the law.”

Ivana Bacik, a Labour Party senator, and women’s rights activist, also pointed to Savita’s death as a major factor.

Writing in the Guardian she stated that the reaction to the Savita and Miss X case meant that “public opinion had thus shifted towards supporting repeal of the constitutional ban and for legal abortion to take place in Ireland.”

Maureen Dowd, the star columnist of The New York Times, was in Dublin to cover the story wrote:

“This country is in the midst of an excruciating existential battle over whether it should keep its adamantine abortion statute, giving an unborn baby equal rights with the mother. Under the 8th Amendment, abortions are illegal, even in cases of rape or incest. The only exception is when it is believed that the mother will die. Anyone caught buying pills online to induce a miscarriage faces up to 14 years in prison.”

Archbishop Eamon Martin, Primate of Ireland, issued a plea not to remove the 8th from the constitution.

“When you go inside the voting booth on 25 May, pause and think of two lives—the life of the mother and the life of her baby—two hearts beating; two lives which are both precious and deserving of compassion and protection,” Martin said. 

Martin also said abortion was not a Catholic issue, but one of human dignity steeped in “reason as well as in faith,” and is a value for “people of all faiths and none.”

The Pro-life Campaign issued its own statement headlined “Life Equality, Keep the 8th.”

“Each human being regardless of age, gender, disability, race, or status in society, possesses a profound, inherent, equal, and irreplaceable value and dignity. Abortion advocates want the unborn child to be an exception to this rule. To do this they resort to the ploy of denying the humanity of the unborn.

The sign of a truly civilized society, however, is one that welcomes everyone in life and protects everyone in its laws.

Equality includes Everyone.”

As noted, the church went quiet as the debate heated up. The topic of abortion should have been catnip to them, as the Jesuit magazine America noted:

“A notably muted voice during the debate… has been that of the Catholic Church in Ireland…its moral authority weakened by years of revelations about the sexual abuse of children by its clergy, the Irish Church many say, has taken a low-profile role on the vote.”

The lack of a vigorous church response certainly impacted the campaign. Yet the Church was like Banquo’s ghost at Macbeth’s coronation banquet: with the sins of the past still resonating in the public mind.

The abortion campaign was also heavily influenced by a scandal involving Irish women getting false clears from pap smears conducted by a company in Texas, which had been employed by the Irish health service, on the grounds of saving money. Many women would subsequently die because of these horrifying misreads.

Many Irish female voters perceived this as another example of neglect of women’s issues by the government.

On the Pro-life side, two arguments were being made: The first that a provision allowing abortion, in the case of a risk of a mother’s suicide, meant the abortion could happen up to six months; the second that the vast majority of Down Syndrome babies were being aborted in Britain. The Yes answer was there was no way to identify a Downs baby in the first twelve weeks—a claim the No side denied.

However, when it came to expert testimony on the overall issue, there was far more buy-in on the repeal side by doctors and surgeons. This became particularly important during the televised debates when complex issues around abortion were examined.

There were also the lessons learned from the same-sex marriage victory: personal stories worked, they worked especially on social media, and they worked when shared with close friends and families. Tales of incest, rape, pedophile attacks, and taking night boats and trains to London for abortions all came spilling out.

Following the vote, 40 percent who voted “Yes” said their vote had been influenced by personal contact with a woman or women who shared their stories with them.

As the voting day approached, the interest from the world media was beyond belief and the global press descended on Ireland.

Would Ireland once again defy its own history and rigid Catholic past to allow abortion?

As the Irish Times noted: “This extraordinary referendum campaign seeped into Irish public consciousness on doorsteps, in the streets, in the media, or on the airwaves… right up to polling day.”

The overall result was too close to call. The general sense was there would be a Dublin/rural split with the more conservative country voters disapproving. There was a large undecided vote.

The final opinion polls showed the gap closing with the repeal group ahead but there was widespread speculation of “shy” No voters not admitting they would vote against repeal.

Then came the moment of truth.  

Thirty-five years after its introduction, the 8th Amendment was repealed. ♦

“A New Ireland: How Europe’s Most Conservative Country Became its Most Liberal” was published in March 2020 and is available from Skyhorse Publishing.

 

Niall O’Dowd is the co-founder of Irish America Magazine as well as the founder of the Irish Voice Newspaper and Irishcentral.com. He was awarded an honorary doctorate by University College Dublin for his work on the Irish peace process which was a subject of the book “Daring Diplomacy” and a PBS Special “An Irish Voice.” He is also an adjunct professor at Columbia University journalism school. Niall’s latest book, George Washington and the Irish: Incredible Stories of the Irish Spies, Soldiers, and Workers Who Helped Free America is available for purchase from Amazon and Barnes and Noble.