The 8th Amendment: Tracking the progress of the referendum result from repeal to high court appeals
By Caoimhe Gethings | Sep 24 2018
The Supreme Court has cleared the path for legislation on abortion to be brought in. By refusing to hear the appeal of applicant Ms. Joanna Jordan regarding the 8th Amendment referendum in May, the Government is now free to draw up the rules that will govern the termination of pregnancies in this country. This decision allows the repeal of the amendment governing the protection of the right to life of the unborn to become more than a referendum result and is a further step on the road to securing safe access to abortion for women in this country. Despite what appeared to be a final resolution to the abortion debate in the referendum this May, Ms. Jordan sought to challenge the result. The Referendum Act allows citizens to bring petitions seeking leave to challenge referendum results and Ms. Jordan’s primary claim was that there were a large number of potential No voters that were left unable to vote due to “de-registering”. The court also heard that “thousands of young Irish citizens (…) were paid to return to vote” and should have been questioned about their time living abroad at the polling stations. Following Mr. Justice Peter Kelly’s judgement against her, Ms. Jordan sought to appeal the result. In addition to refusing her appeal, the Court of Appeal went as far as to say that her repeated challenges amounted to a frustration of the democratic process. The court went on to state that her evidence put forward relating to voting irregularities was “flimsy”, abandoning the usual legal jargon in favour of firmness. Ms. Jordan’s challenge was not the only one that made its way through the High Court. Mr. Justice Kelly heard challenges from a Mr. Charles Byrne and a Mr. Ciaran Tracey in addition to Ms. Jordan in the weeks following the referendum result. Mr. Byrne claimed that the Referendum Commission failed to properly inform citizens of the nature and impact of the proposed amendment, as is their responsibility. Mr. Treacy also challenged the Commission’s provision of information but noted in particular the effect of failing to mention the 2006 decision of the European Court of Human Rights. Mr. Treacy claimed that D v Ireland, which dealt with abortion in cases of fatal foetal abnormalities in this country, was vital in adequately informing the electorate about the referendum. Mr. Byrne and Mr. Treacy both challenged the statements made by politicians advocating a ‘Yes’ vote which they felt had swayed the result unfairly. The Supreme Court was clear in their determination regarding statements made by politicians in their dismissal of Ms. Jordan’s appeal. Chief justice Frank Clarke, Mr. Justice Donal O’Donnell and Mr. Justice Peter Charleton ruled that not only was there nothing in the Constitution to prevent members of Government from engaging in a referendum debate, they were entitled to engage in its process. An important feature in their decision was the restatement of the referendum’s role in the democratic process, which echoed the sentiments of the Court of Appeal. Regarding Ms. Jordan’s allegations involving voter irregularities, the court felt that the issue required no further examination and was satisfied with the decision of the High Court. Despite initial Government statements that such challenges would not delay work on giving effect to the referendum result, the Irish people wait for legislation to make access to abortion a reality three months on. Following the euphoria that 1,429,981 Yes-voters felt on the announcement of the result in Dublin castle, it can be easy to forget that Irish women are still without access to abortion. Just last month, The Irish Times estimated that 700 women have had to travel abroad since the referendum to seek a termination of their pregnancy and 237 have taken an abortion pill purchased online. It is for this reason that the Abortion Rights Campaign plans to have the 7th annual March for Choice on the 29nd of this month, to continue to campaign for abortion access. This article was written before President Michael D Higgins signed the bill giving effect to the result of the abortion referendum on 18th September. There is no longer a constitutional ban on abortion and the Oireachtas is now free to legislate to change Ireland’s existing abortion regime.