The voices of the people, expressed both formally and informally, lie at the centre of Ireland’s abortion law journey: from grassroots movements and protests, to moments of mass democratic participation in the form of constitutional referendums, to deliberative processes engaging ordinary citizens in the form of deliberative minipublics.
The law’s evolution is bookended by two watershed referendums, each of which had a profound impact on women’s rights and freedoms. In 1983, Ireland became the first country in the world to constitutionally enshrine a right to life for the unborn, the people voting by a two-thirds majority to insert a new Article 40.3.3° (the ‘Eighth Amendment’) into the Constitution. This provision operated as a near-blanket ban on abortion. In 2018, the people voted by the same majority to remove the Eighth Amendment and insert a new constitutional provision paving the way for a radical liberalization of the law.
Prior to 1983, Ireland’s constitution contained no explicit reference to the unborn, though abortion had been criminalised since 1861. An important impetus for the demand for a referendum to enshrine a right to life for the unborn was the decision of the US Supreme Court in Roe v Wade in 1973. Shortly afterwards, the Irish Supreme Court imputed a right of marital privacy into the personal rights guaranteed in the Constitution, striking down the legislation prohibiting contraception. Anxiety mounted that a future Irish Supreme Court could follow the example of its US counterpart and introduce into Irish jurisprudence a right to abortion, under the auspices of the right to privacy.
Against this backdrop, an organisation known as the Pro-Life Amendment Campaign agitated strongly for a constitutional amendment to explicitly guard unborn life. A Bill was introduced to amend the Constitution by inserting the following provision:
The State acknowledges the right to life of the unborn and, with due regard to the equal right to the 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 Attorney General expressed misgivings about the wording of the amendment on the basis that it would lead to confusion among the medical and legal communities. Nonetheless, the referendum passed.
Following the referendum, the legislature failed to enact legislation to set out the circumstances – if any – in which abortion would be permissible. By the late 1980s, it became clear that the provision had “teeth”, the Supreme Court granting injunctions preventing the distribution of information on abortion services abroad against pregnancy counselling services and students’ unions.
It fell to the Supreme Court in the notorious X case in 1992 to set out the test as to when abortion would be lawful. It held that “…if it is established as a matter of probability that there is a real and substantial risk to the life, as distinct from the health, of the mother, which can only be avoided by the termination of her pregnancy, such termination is permissible…” The Court’s interpretation set an extremely high bar for abortion access – only in the case of a risk to the life of the pregnant woman – and left open the possibility of abortion-seeking women being injuncted from travelling to avail of abortion services elsewhere.
A series of further constitutional referendums took place and the abortion issue was the subject of litigation before the Irish and European courts. In the meantime, women in their thousands travelled to Britain to obtain abortion services, or resorted to the importation of illegal abortion pills. A series of expert groups and parliamentary committees were convened over the years to examine reform options.
It was the death of a pregnant woman, Savita Halappanavar, in 2012, which was widely blamed on the chilling effect of the Eighth Amendment on doctors, that ignited the movement for change. Legislation was passed in 2013 which essentially set out the law as stated in the X case, providing that abortion could only take place where a risk to the pregnant woman’s life existed.
The largest party following Ireland’s 2016 general election was Fine Gael, which needed the support of certain independent candidates to form a government. To secure that support, it committed to holding a citizens’ assembly on abortion.
The Citizens’ Assembly consisted of 99 ordinary citizens intended to be representative of Irish society. It was chaired by a retired Supreme Court justice and was supported by a secretariat and an Expert Advisory Group. It engaged in learning and deliberation, and took submissions from experts, the public and interest groups, as well as women who had been impacted by the law. It recommended that the Eighth Amendment be replaced with a provision allowing parliament to legislate for the termination of pregnancy. It also recommended a new legislative framework, permitting abortion without restriction within 12 weeks’ gestation. The Assembly’s report, published in June 2017, was passed to a parliamentary committee, which broadly endorsed the Assembly’s recommendations. The government announced the holding of a referendum and the draft legislation it proposed introducing – including the radical 12-week recommendation – was published in advance.
The referendum was held in May 2018 and passed by a majority of 66.4%. New legislation was signed into law by the end of that year.
The 1983 referendum was so divisive it was compared to “the second partitioning of Ireland”. The process around the 2018 referendum stands in stark contrast, incorporating a novel democratic innovation in the form of a citizens’ assembly, which played a vital role in setting the agenda for reform. The process combined deliberative, representative and direct forms of democracy to produce a stunning result.
The US decision in Roe v Wade has been argued to have galvanized an anti-abortion movement that ultimately came to fruition with Dobbs and the subsequent clampdown on women’s reproductive rights in several US states. In contrast, while a review of Ireland’s 2018 legislation revealed some ongoing barriers to abortion access, the core question of access to abortion in principle has been largely settled in Ireland, at least for the foreseeable future.
This blog is the first in a 3 part series related to an event held on April 9, 2025 titled “Left Populist Movements and Women’s Reproductive Rights: A Comparative View of Recent Abortion Law Reforms“.
