8th Amendment

oscarBravo

Loafing Oaf wrote: »

Why do you say that? Who exactly is proposing the kind of constitutional tweaking you fear? All of the TDs quoted in this article seem to be talking about straight repeal:
http://www.irishtimes.com/news/social-affairs/repeal-of-the-eighth-amendment-is-very-do-able-1.2225166

From that article:

“It’s something that I will be working very strongly for and very strongly toward and while it’s very well to say repeal the Eighth Amendment I believe we have to address this issue... in a manner that doesn’t deliver abortion on demand because I don’t believe that’s what the Irish people want...”

Straight repeal is unlikely to succeed, because you'll have the hand-wringers and Helen Lovejoys wailing about the "abortion industry" like we've seen on this thread. Very few people - including politicians - seem to share my distaste for legislating in the constitution, so it seems the most likely compromise.

S.O

traprunner wrote: »

If the government of the time go for a straight repeal then I suspect they would have all necessary legislation ready to go and in the public arena. It would make a repeal much simpler.

I don't think a straight up repeal of the 8th amendment will work, from an article someone else posted.

Dr Reilly made the comments after Minister of State Kathleen Lynch said repealing the Eighth Amendment is very “do-able” following the passing of the same-sex marriage referendum.

It’s something that I will be working very strongly for and very strongly
toward and while it’s very well to say repeal the Eighth Amendment I believe we have to address this issue... in a manner that doesn’t deliver abortion on
demand because I don’t believe that’s what the Irish people want,” he said.

http://www.irishtimes.com/news/social-affairs/repeal-of-the-eighth-amendment-is-very-do-able-1.2225166

I would tend to agree with O Reilly , it needs to be done in a way that doesn't lead to abortion on demand, my view on how is should be done + presented is legislation for abortion in grey areas of rape, if the foetus has no chance of survival outside the womb if it is incompatible with life, show the electorate how they would plan to legislate in such cases prior to a referendum , then have the referendum as replace the 8th amendment with a new amendment to ensure any future legislation doesn't lead to abortion on demand- part of the reason I say replace the 8th amendment with a new amendment in its place, is if the event of a future left government with parties of the left in coalition with left Independents to ensure they won,t able be able to legislate for abortion any further beyond the grey areas or bring in abortion on demand as their hands will be tied by a new amendment in the Irish constitution.

Loafing Oaf

oscarBravo wrote: »

From that article: Straight repeal is unlikely to succeed, because you'll have the hand-wringers and Helen Lovejoys wailing about the "abortion industry" like we've seen on this thread. Very few people - including politicians - seem to share my distaste for legislating in the constitution, so it seems the most likely compromise.

Okay the James Reilly quote is ambiguous as to what exactly he is proposing but it seems to me most likely he is talking about legislation accompanying the amendment to "address this issue... in a manner that doesn’t deliver abortion on demand". I have yet to see any politician come out and explicitly say "let's have a constitutional amendment that permits abortion in cases of FFA and rape/incest but nothing else". 'Repeal' is the catchphrase on everyone's lips, even those clearly only looking for limited liberalisation of the law...

Loafing Oaf

S.O wrote: »

then have the referendum as replace the 8th amendment with a new amendment to ensure any future legislation doesn't lead to abortion on demand.

But the point I'm trying to make is that neither he nor any other politician that I'm aware of is explicitly calling for that...Okay a lot of them are being deliberately vague about exactly what they favour, but if the kind of referendum you propose was a runner, you'd think someone would have mentioned it...

K-9

It seems like repeal is the new buzz word but unless I don't understand the term properly, it seems Reilly is more in favour of small changes to the existing law, unviable pregnancies and maybe rape/incest. Politically I can't see FG looking to legislate for much more and the article doesn't suggest otherwise.

What Lynch and Labour wants isn't really stated at all barring repeal, and realistically is unlikely to matter come the formation of the next coalition.

traprunner

S.O wrote: »

I don't think a straight up repeal of the 8th amendment will work, from an article someone else posted.




http://www.irishtimes.com/news/social-affairs/repeal-of-the-eighth-amendment-is-very-do-able-1.2225166

I would tend to agree with O Reilly , it needs to be done in a way that doesn't lead to abortion on demand, my view on how is should be done + presented is legislation for abortion in grey areas of rape, if the foetus has no chance of survival outside the womb if it is incompatible with life, show the electorate how they would plan to legislate in such cases prior to a referendum , then have the referendum as replace the 8th amendment with a new amendment to ensure any future legislation doesn't lead to abortion on demand- part of the reason I say replace the 8th amendment with a new amendment in its place, is if the event of a future left government with parties of the left in coalition with left Independents to ensure they won,t able be able to legislate for abortion any further beyond the grey areas or bring in abortion on demand as their hands will be tied by a new amendment in the Irish constitution.

I did say that the legislation should be ready to go.

conorh91

Deleted User wrote: »

I think its telling that back in the 1980s we were told that a constitutional amendment was absolutely necessary to protect the lives of the 'unborn' (just as weird a concept as the 'undead'), but now that there seems to be support for the removal of the amendments, we find that they weren't needed at all.......

I can't speak for anyone else on this point, but I didn't say that. I was responding to a point on the importance of the 8th amendment. The 8th amendment arguably increased the protection of the right to life of the unborn, but it most certainly did not create that right insofar as the unborn has always had a constitutional right to be born.

volchitsa wrote: »

Outside of this debate, I think this habit we've developed of legislating via the constitution needs to be broken. It leads to bad (and expensive) law. It seems to me the constitution should be a framework within which laws must be written, and not a list of all the laws in the country.

I've heard the same flawed argument promoted by Kevin Myers during the S.S.M. referendum. His argument was that the constitution shouldn't be stuffed with any detail, because it does nothing but enrich lawyers and take power from the people. Not so.

All constitutions fall to the courts to be interpreted.

The more vague the constitution, the greater the power of the courts to interpret and identify the scope of particular articles.

The more vague the constitution, the greater the uncertainty of the legislature regarding its power to create law that will withstand constitutional interpretation.

Therefore, the more vague the constitution, the greater the 'chilling effect' on lawmakers who try to propagate any kind of legislative reform on any topic.

In short, a smaller constitution assigns greater power to the courts, takes power from the legislature, and risks legislative inertia.

I don't support the idea of a ridiculously long constitution, but I have no problem with detailed amendments which concisely delineate the jurisdiction of the courts to intrude upon the democratic process.

Loafing Oaf

K-9 wrote: »

It seems like repeal is the new buzz word but unless I don't understand the term properly, it seems Reilly is more in favour of small changes to the existing law

But regardless of how limited the liberalisation any individual politician favours, it seems to me a consensus has been reached that this can only be done through straight repeal followed by legislation, and any further piecemeal tweaking of the constitution is a non-runner...

Black Menorca

Zubeneschamali wrote: »

Our abortion rate is about a quarter the UK rate, so about 4000.

IVF would be on the same scale, thousands of cycles of IVF per year, and thousands of frozen "babies" left over.

4,000 babies intentionally killed in Ireland? How do you figure that one?

oscarBravo

conorh91 wrote: »

I don't support the idea of a ridiculously long constitution, but I have no problem with detailed amendments which concisely delineate the jurisdiction of the courts to intrude upon the democratic process.

That's a concept I'd agree with in general principle, but 41.3.2.i is a perfect example of taking it too far. That's not text that belongs in any constitution anywhere; it belongs in legislation.

Similarly, if we start codifying in the constitution the precise medical circumstances in which abortion is legal, that would be another disaster.

conorh91

oscarBravo wrote: »

That's a concept I'd agree with in general principle, but 41.3.2.i is a perfect example of taking it too far. That's not text that belongs in any constitution anywhere; it belongs in legislation.

Why?

Firstly, I don't see what's so offensive about that level of detail.
Second, it is not merely a procedural provision: that entire section attempts to underpin a constitutional prohibition on 'divorce culture'.

Basic principles belong in the Constitution. Regardless of what one may think of this particular principle, it is undoubtedly a legitimate principle to oppose a liberal divorce regime. How else, I wonder, could this basic principle have been formulated in the constitution?

The constitution is stuffed with plenty of clunky provisions, such as that relating to the remuneration of judges. Although these are not exactly graceful specimens of constitutional draftsmanship, they do reflect and safeguard the basic principles of the People against the whims of Government.

Zubeneschamali

Black Menorca wrote: »

4,000 babies intentionally killed in Ireland? How do you figure that one?

Woman in Ireland is pregnant. Doesn't want to be. Gets abortion. Goes on with life in Ireland. There are about 4000 cases like that every year.

The only effect of our wonderful anti-abortion regime is that she has to take a short trip to the UK (or Holland or Spain...).

Pretending those aren't Irish abortions when both the woman and the "unborn" are Irish and living in Ireland under our marvelous 8th amendment is simple hypocrisy.

Zubeneschamali

conorh91 wrote: »

that entire section attempts to underpin a constitutional prohibition on 'divorce culture'.

That 5 year limit was put in as a sop to the 1996 anti-divorce brigade to get the thing passed. It would easily pass without it today.

Now we are stuck with the stupid limit until we have another referendum where we get an ear-bashing from the bishops, Iona Institute and John Feckin Waters, instead of being able to have the people we elect to change laws change the feckin law.

S.O

If the 8th amendment were to be replaced with a new constitutional amendment in its place, lets call it for arguments sake ( Amendment 49 ) ( Art 49 ) could may be worded something along the lines as ( Abortion shall only be legislated for- when pregnancy results from rape, to save the life of the mother, the foetus is incompatible with life )

What Im basically saying is ( Amendment 49 ) would need to be worded in a way to make sure any future government can,t legislate for access to abortion any further then grey areas.

Present the option on the ballot paper. Do you approve to replace the 8th amendment with Amendment 49. then leave people tick the yes or no box with an x in the privacy of the ballot box.

volchitsa

S.O wrote: »

If the 8th amendment were to be replaced with a new constitutional amendment in its place, lets call it for arguments sake ( Amendment 49 ) ( Art 49 ) could may be worded something along the lines as ( Abortion shall only be legislated for- when pregnancy results from rape, to save the life of the mother, the foetus is incompatible with life )

What Im basically saying is ( Amendment 49 ) would need to be worded in a way to make sure any future government can,t legislate for access to abortion any further then grey areas.

Present the option on the ballot paper. Do you approve to replace the 8th amendment with Amendment 49. then leave people tick the yes or no box with an x in the privacy of the ballot box.

That would pass, for sure, I think. Despite the frantic efforts of Iona and YD to portray it as a murderer's charter.

But I would worry that its only a matter of time till we find ourselves in the international spotlight for some other awful tragedy : maybe another woman with cancer whose life is not yet at risk, but who is risking a recurrence of her cancer due to her pregnancy, or a case like the woman in Arizona where the bishop excommunicated the nun who okayed an abortion - a young mother of several children, who developed pulmonary hypertension due to her latest pregnancy. IMUIC, her life wasn't yet in danger but the damage being done by the pregnancy was destroying her health and hastening her death.

So I don't know, I fear it's not a solution. Pregnancy is a complicated time, and health issues can morph into life-threatening issues without warning. Putting a limitation like that into the constitution seems reckless to me. IMO.

Loafing Oaf

S.O wrote: »

If the 8th amendment were to be replaced with a new constitutional amendment in its place, lets call it for arguments sake ( Amendment 49 ) ( Art 49 ) could may be worded something along the lines as ( Abortion shall only be legislated for- when pregnancy results from rape, to save the life of the mother, the foetus is incompatible with life )

What Im basically saying is ( Amendment 49 ) would need to be worded in a way to make sure any future government can,t legislate for access to abortion any further then grey areas.

Present the option on the ballot paper. Do you approve to replace the 8th amendment with Amendment 49. then leave people tick the yes or no box with an x in the privacy of the ballot box.

Do you not see that any such amendment is massively problematical no matter how it is worded and would almost inevitably lead to a further legal quagmire a few years down the road? For instance, who decides that a pregnancy is result of rape? Some sort of inquisitorial panel along the lines of the x-case legislation? Would the membership of that panel have to be set out in the amendment?

As I've said a few times now, our political establishment appears to have decided that straight repeal is the only game in town so IMO these sorts of issues will be addressed in legislation (if the referendum passes) rather than through constitutional amendment.

S.O

Loafing Oaf wrote: »

Do you not see that any such amendment is massively problematical no matter how it is worded and would almost inevitably lead to a further legal quagmire a few years down the road? For instance, who decides that a pregnancy is result of rape? Some sort of inquisitorial panel along the lines of the x-case legislation? Would the membership of that panel have to be set out in the amendment?

As I've said a few times now, our political establishment appears to have decided that straight repeal is the only game in town so IMO these sorts of issues will be addressed in legislation (if the referendum passes) rather than through constitutional amendment.

Not everyone is saying a straight repeal of the 8th amendment, Aodhán ó Ríordáin wrote on his website a few months back.

The cold reality is that the 8th amendment must go by means of referendum.
However, we are nowhere near winning such a proposal, especially if we can’t
produce in black and white what would be put in its place.

If we get a mandate for a referendum on the 8th we can drive it home. But the Irish people will never pass such a measure unless they know what will replace it

http://www.aodhanoriordain.ie/2015/02/10/why-i-voted-against-deputy-dalys-bill/

He is talking sense , unless there is an alternative proposal or suggestion as to what exactly would be put in place if the 8th amendment is to go, any referendum that would put forward without a replacement amendment won,t pass by referendum.

S.O

volchitsa wrote: »

That would pass, for sure, I think. Despite the frantic efforts of Iona and YD to portray it as a murderer's charter.

But I would worry that its only a matter of time till we find ourselves in the international spotlight for some other awful tragedy : maybe another woman with cancer whose life is not yet at risk, but who is risking a recurrence of her cancer due to her pregnancy, or a case like the woman in Arizona where the bishop excommunicated the nun who okayed an abortion - a young mother of several children, who developed pulmonary hypertension due to her latest pregnancy. IMUIC, her life wasn't yet in danger but the damage being done by the pregnancy was destroying her health and hastening her death.

So I don't know, I fear it's not a solution. Pregnancy is a complicated time, and health issues can morph into life-threatening issues without warning. Putting a limitation like that into the constitution seems reckless to me. IMO.

Pregnancy is a complicated time, and health issues can morph into
life-threatening issues without warning. Putting a limitation like that into the
constitution seems reckless to me

How health issues would be dealt with relating to pregnancy as I worded for an alternative new amendment , ( amendment 49 )

( When pregnancy results from rape, to save the life of the mother, the foetus is incompatible with life )

Any health issues to the health and life of the mother or health issues to the health and life of the foetus could come under , two parts of the wording I suggested.

to save the life of the mother, the foetus is incompatible with life )

Loafing Oaf

S.O wrote: »

Not everyone is saying a straight repeal of the 8th amendment, Aodhán ó Ríordáin wrote on his website a few months back.



http://www.aodhanoriordain.ie/2015/02/10/why-i-voted-against-deputy-dalys-bill/

He is talking sense , unless there is an alternative proposal or suggestion as to what exactly would be put in place if the 8th amendment is to go, any referendum that would put forward without a replacement amendment won,t pass by referendum.

Sorry I should have specified when I said 'straight repeal' I should have added 'with the legislation that would replace it set out in advance', which is what O'Riordain is almost certainly talking about there. I see no sign in that piece that he is entertaining replacing the 8th with another amendment, and I have not come across any another TD who is explicitly proposing that either.

volchitsa

S.O wrote: »

How health issues would be dealt with relating to pregnancy as I worded for an alternative new amendment , ( amendment 49 )

( When pregnancy results from rape, to save the life of the mother, the foetus is incompatible with life )

Any health issues to the health and life of the mother or health issues to the health and life of the foetus could come under , two parts of the wording I suggested.

So what happens if a woman's health is going to be irreparably damaged by her pregnancy, but she probably won't actually die - you'd be ok with that?

Poland, another catholic country, was condemned recently for refusing an abortion to a woman whose sight was being destroyed by her pregnancy. You don't die of going blind. Would you be fine with that sort of thing happening in Ireland? I think a lot of people wouldn't.

It's putting it in the constitution that I'm disagreeing with, btw, not with the fact of having a restrictive law. A law can be changed, if it becomes clear that people want some modifications. Without there having to be a tragedy followed by an amendment, followed by another tragedy and another amendment. And another and another - which is where we're at now.

It's not good, and it won't be while we try to micromanage the law with such a blunt instrument as a constitution.

S.O

volchitsa wrote: »

So what happens if a woman's health is going to be irreparably damaged by her pregnancy, but she probably won't actually die - you'd be ok with that?

Poland, another catholic country, was condemned recently for refusing an abortion to a woman whose sight was being destroyed by her pregnancy. You don't die of going blind. Would you be fine with that sort of thing happening in Ireland? I think a lot of people wouldn't.

It's putting it in the constitution that I'm disagreeing with, btw, not with the fact of having a restrictive law. A law can be changed, if it becomes clear that people want some modifications. Without there having to be a tragedy followed by an amendment, followed by another tragedy and another amendment. And another and another - which is where we're at now.

It's not good, and it won't be while we try to micromanage the law with such a blunt instrument as a constitution.

Could put in another subsection , where there is long term health risk to the mother.

volchitsa

S.O wrote: »

Could put in another subsection , where there is long term health risk to the mother.

Or you could, and I know this is really radical in Ireland, treat it as a medical issue between doctors and their patients? Most women with health complications want to continue their pregnancies, I don't know where this idea comes from that women are going to use the fact of having a bout of flu or something to suddenly decide they want an abortion?

dogcat

This probably makes no sense but if the 8th amendment is repaled with no new amendment wouldn't abortion technically not be illegal and able to be practised? Just a stupid question.

volchitsa

dogcat wrote: »

This probably makes no sense but if the 8th amendment is repaled with no new amendment wouldn't abortion technically not be illegal and able to be practised? Just a stupid question.

I'm not sure if you're suggesting that abortion would become legal or would remain illegal, but in any case having no specific amendment in the constitution doesn't immediately legalize abortion, it depends on what laws are in place. I mentioned Poland earlier, which has nothing in its constitution, afaiaa, but which severely restricts access to abortion.

With the proviso that I'm not a lawyer, my understanding is that the 19th century Offences against the person Act was replaced only in 2013, by the Protection of Life during pregnancy Act in 2013. So presumably there's nothing stopping the Dail from enacting a new law containing no reference to 40.3.3 which would restrict the conditions under which an abortion could be legally carried out to, for example, FFA and serious health issues for the woman.

Zubeneschamali

dogcat wrote: »

This probably makes no sense but if the 8th amendment is repaled with no new amendment wouldn't abortion technically not be illegal and able to be practised?

Abortion was illegal before the 8th amendment.

The 8th amendment actually made it legal (in certain circumstances, and by accident).

volchitsa

Zubeneschamali wrote: »

Abortion was illegal before the 8th amendment.

The 8th amendment actually made it legal (in certain circumstances, and by accident).

And when that potential flaw in the whole idea was pointed out by anti-amendment activists during the amendment campaign, Professors Binchy and Casey completely dismissed the idea that such a thing could happen, and accused those suggesting it of having a hidden pro-abortion agenda.

Which is why we shouldn't make the same mistake again - because it's entirely predictable.

I've described the mechanism by which it will happen : a sad situation made into an insoluble predicament by the new law will occur sooner or later. Probably a woman with a wanted pregnancy and an unforeseen major health issue which may not kill her but will utterly change her life and possibly harm her existing children's childhoods - and I know what I'm talking about here. So then, as with problems caused by 40.3.3, people will throw up the hands and say "that isn't what we expected to happen!" And off we go again, but it will probably be too late for that woman and her family.

Abortion for threats to health and not just life will be brought in, sooner or later, because women will no longer put up with them as being the will of God, or fate where before they generally would have accepted that these things happen - so putting a ban in the constitution will only guarantee that this subject will have to be revisited and probably sooner rather than later.

The only way to put this issue to bed for any length of time is to repeal 40.3.3 and legislate instead.

S.O

S.O wrote: »

When I say abortion on request, Im opposed to abortion being granted no questions asked, if someone wants to use abortion as form of contraception Im opposed or if someone wants to abortion on grounds of disability I would be opposed.

When I argue for the rape exception for abortion to be granted I do so on a conscience basis, I look at it from a viewpoint how can I as a male insist to a woman who has being raped and is pregnant afterwards that she has to go full term with the pregnancy ?

You seem to have scarce difficulty in dictating to womankind when woman must bear even a severely disabled child against her will. Why? Presumably because you form the opinion that the foetus has a general "right to life"?

So why do you reserve the right to abortion to a woman who was raped? Is it because her foetus has no right to life, or because there is some evidence that delivering a child conceived of rape is universally more distressing than delivering a severely disabled or deformed foetus which may melt away and die before his mother's eyes?

How can anyone possibly stand over such abstract, half-baked sweeping statements masquerading as logic? There is no consistency and no humanity to it at all, which is why you have a hard time explaining your position.

Black Menorca

Zubeneschamali wrote: »

Abortion was illegal before the 8th amendment.

The 8th amendment actually made it legal (in certain circumstances, and by accident).

The intentional taking of unborn life is a criminal offence in this country.

volchitsa

Black Menorca wrote: »

The intentional taking of unborn life is a criminal offence in this country.

AFAIAA the concept of intention is not part of our legislation on abortion. Do you have any reason it think it is?

Zubeneschamali

volchitsa wrote: »

AFAIAA the concept of intention is not part of our legislation on abortion. Do you have any reason it think it is?

It's part of the Catholic Church double-speak on the subject, but not the law.

The intentional taking of unborn human life is A-OK before implantation, and after it where the equal right to life of the mother is at risk.