8th Amendment

Published on April 19, 2018

The proposed amendment to the Constitution, the 36th Amendment, will make the following two changes to the Constitution if passed in the referendum:

The 8th Amendment of the Constitution provides:

“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.”

The proposed amendment to the Constitution, the 36th Amendment, will make the following two changes to the Constitution if passed in the referendum:

– delete the current Article 40.3.3° (which consists of the 8th, 13th and 14th Amendments); and
– insert the following sentence in the Constitution in place of Art. 40.3.3°: “Provision may be made by law for the regulation of termination of pregnancy.”

In M v. Minister for Justice and Equality (Supreme Court, 7th March 2018), the Supreme Court held that the unborn have no constitutional rights other than the right to life protected by the 8th Amendment. Therefore, if this referendum is passed the unborn will have no constitutional rights whatsoever. As a result, if the referendum is passed the Oireachtas will be able to enact any law they want on abortion and make any changes to that law at any time in the future if a majority of TDs so decide. They will even be able to bring in abortion on demand up to birth if at any time a majority of TDs support that. Only a simple majority of TDs would be required, because:

  •  under Article 15 of the Constitution, a simple majority in the Dáil is sufficient, except where the Constitution itself says that more than a simple majority is required, and the         36th Amendment does not require more than a simple majority;
  • if the Seanad doesn’t go along with the proposed law or with a proposed future change to that law, the Dáil can override the Seanad, by virtue of Article 23 of the Constitution.

Therefore it would not be necessary to have majority agreement in the Seanad. Anyway, Seanad disagreement would be unlikely.

For more information on the proposed changes http://www.save8.ie

The final Stand Up for Life rally will be held in Dublin on Saturday 12th May at 2pm in Dublin city centre.