The ballot paper asks us: do you approve of the proposal to amend the Constitution contained in the 36th Amendment of the Constitution Bill?
The 36th Amendment is unlike anything ever put to us before. It takes the right to life away from every unborn baby, in every circumstance, at every stage of development. We know this because the Supreme Court has said that unborn children have no constitutional rights before birth outside the Eighth Amendment (M v. Minister for Justice, 7th March 2018 ). If a yes vote occurs it will remove the 8th Amendment and replace it with a provision that allows them no constitutional protection at all. This means the Oireachtas can introduce the government’s wide-ranging abortion law and can make that law even more extreme at any time in the future.
This is not a balanced proposal. How could it be? There is not one unborn baby whose life could not be legally taken under it, because abortion is legal under this proposal for any reason right up to 12 weeks. Before reaching 12 weeks, an unborn baby already has internal organs, a beating heart, a little mouth and nose, eyes and ears. She or he has arms and legs, knees and elbows, hands and feet and tiny fingers and toes. Although her mother does not yet feel her movements, she is already jumping about and can suck her thumb. What more does she have to do to convince this government that it should not be made legal to end her life, for any reason at all?
It does not even stop there. Although experience in Britain and other jurisdictions shows how easily and quickly health grounds for abortion can become abortion on demand in practice, this government’s Bill provides for abortion right up to viability (six months ) for mental health reasons. Lawyers including three former High Court Judges have said that those reasons are “so similar to the legislation in Great Britain that there is no rational basis for thinking that they would operate differently in this jurisdiction”. So there it is: the British model of abortion up to six months and, in the first 12 weeks, a law that devalues the unborn child even more than the British Abortion Act does. There is no reason to think it will even end there if the referendum passes, because again the 36th Amendment leaves the unborn with no constitutional protection in any case.
So to answer the question on the ballot paper: do you approve of the 36th Amendment? The only way to approve of it is to approve of all of the above. For anyone who does not, the answer to the question on the ballot paper is No.
There is a far better way. We know there are better answers because those answers already exist, and our laws can continue to protect both women and babies. Yes campaigners say that the Eighth Amendment endangers women, but in a recent letter five former chairmen of the Institute of Obstetricians and Gynaecologists wrote:
“Ireland is a very safe country in which to be pregnant. The Eighth Amendment does not prevent Irish women receiving care of the highest possible standard…. What this referendum is not about, and what it has never been about, is maternal healthcare.”
We are told that a yes vote would not result in more abortions. Our abortion rate, including women who travel for abortion or obtain abortion pills online, is low. It is only a fraction of the rate in countries like Britain, France and Spain, and they are not even among the worst examples. Moreover, we need only look to statistics from our nearest neighbour England to see that their abortion rate climbed rapidly and dramatically after legalisation. So why pretend that won’t happen here, until it does?
It is sad to see noble words like care, compassion and trust used to get you to vote for a law that so grievously betrays the most defenceless. This is not about trust. Everyone should be trusted to make their own decisions, but we know that a person’s own decisions do not include decisions that lead to the death of another. We know that being trustworthy of course does not mean being entitled to decide that someone else’s life is to be taken, and that real compassion means protecting both.
Behind the rhetoric, this is a proposal to allow the smallest, most vulnerable human beings to be lawfully killed for any reason. That is the most callous kind of discrimination the law can perpetrate, and it is proposed to perpetrate it against those who need adults’ tender care and protection. Unborn children have done nothing to deserve this onslaught against their only constitutional right. Please vote No to it.
Geoffrey Sumner is a barrister based in Galway and one of the lawyers who signed a statement in April advocating a No vote in the referendum.