The Thirty-sixth Amendment of the Constitution of Ireland, previously called bill no. 29 of 2018, was proposed to grant the Irish legislature, the Oireachtas, the ability to liberalize abortion law. A referendum was held in 2018 and the Amendment was approved by voters.
Problems and Purpose
According to political scientists, Archon Fung and Erik Olin Wright, "most democratic processes are front-loaded in the sense that popular participation focuses on deciding a policy question as in a referendum...”  A referendum was called by the Irish parliament to decide whether to repeal the thirty-sixth Amendment of the Constitution of Ireland which grants the Irish Parliament, called the Oireachtas, the right to liberalise abortion law and legislate for abortion.
In an explanatory memorandum on the 2018 thirty-sixth amendment bill, it states that; “[t]he Thirty-sixth Amendment of the Constitution Bill 2018 proposes to substitute subsection 3° of Article 40.3.3° of the Constitution in both the Irish and English text with text which articulates clearly the principle that laws may be enacted by the Oireachtas providing for the regulation of termination of pregnancy.”
The constitution previously stated that an abortion should only be permitted if there was a serious risk to the life of the mother, ruling out instances such as sexual assault, incest, fatal fetal abnormality, molestation, unwanted pregnancies and other aggravating circumstances. The purpose of the proposal, also described as the Repeal of the Eighth Amendment, is thus to grant the women of Ireland further freedom in decision-making regarding their own bodies and destinies.
Background History and Context
The history behind the referendum dates back to 1983 when the constitution was amended to give the unborn the right to life and equal rights to the fetus and the woman, making abortion illegal unless the mother’s life is in danger. The thirty-sixth Amendment bill proposes to replace the previously mentioned Article 40.3.3° of the Constitution, that was also earlier amended in 1992 with the twelfth, thirteenth and fourteenth amendments.
The twelfth Amendment suggested that the possibility of the woman committing suicide was not a hazard big enough to justify an abortion, and did not count as danger towards the life of the carrier, phrased as follows: “It shall be unlawful to terminate the life of an unborn unless such termination is necessary to save the life, as distinct from the health, of the mother where there is an illness or disorder of the mother giving rise to a real and substantial risk to her life, not being a risk of self-destruction.” The Thirteenth Amendment wanted to regulate whether the constraint on abortion should as well constrain the freedom of travelling from Ireland and legally obtaining a secure abortion, and argued that it should not. The phrasing was as follows: “This subsection shall not limit freedom to travel between the State and another state.”
The 2018 bill was presented by the Fine Gael minority coalition government, a centre-right liberal-conservative and Christian democratic political party, making them the originating entity. It was authorized through both cabinets on 27 March 2018, and the referendum was scheduled to 25 May 2018.
Organizing, Supporting, and Funding Entities
The funding of the campaign does not originate from a single entity, but could rather be described as a organisation of multiple organisations, international as well as non-governmental. Several umbrella groups were crucial for the funding, such as “Together for yes”, led by three main associations: Women’s Council of Ireland, the Abortion Rights Campaign, and the Coalition to Repeal the Eighth Amendment. “Together for yes” was further supported by 97 other organisations, including welfare groups advocating for women and professional groups of medical workers and scholars.
Further funding for the campaign was raised by Amnesty International, with their campaign “Repeal the 8th”; the Irish Family Planning Association (IFPA); The Coalition to repeal the 8th,, The Irish Council for Civil Liberties, The Institute of Obstetricians and Gynaecologists, etc.
Participant Recruitment and Selection
“If democratic innovations simply replicate and reinforce the differential rates of participation witnessed in most other forms of political participation, then their legitimacy will be cast into doubt.” To maximize the legitimacy of the referendum, the Participant selection was directed towards the Irish population as a whole, with a total of 3,229,672 voters and an additional 118,389 people added by late registration by the closing date of 8 May 2018.
Methods and Tools Used
What Went On: Process, Interaction, and Participation
The referendum was held on May 25, 2018. 2,159,655 people cast a vote with the yes-side winning by 66.4%.
Detailed breakdown of voting:
- Yes: 1,429,981 votes (66.40 %)
- No: 723,632 votes (33.60 %)
- Valid votes: 2,153,613 (99.72 %)
- Invalid votes, blank votes: 6,042 (0.28 %)
- Total votes: 2,159,655
- Total registered voters: 3,367,556
- Voter turnout: 64.13
Influence, Outcomes, and Effects
The legislation to repeal the Eighth Amendment was signed by the president and made into law on September 18, 2018.
Analysis and Lessons Learned
According to Fung and Wright, "for many potential critics and supporters, the most important question will be one of outcomes....One prime justification for relocating public power to these decentralized and deliberative groups is that they devise public action strategies and solutions that are superior to those of, say, command-and-control bureaucracies, by virtue of superior knowledge of local conditions, greater learning capacities, and improved accountability.” This shows that the state of Ireland, by calling for a referendum, could gain accountability and justify the relocation of power. There were two sides in the campaigning in the democratic innovation, which were analyzed by Graham Smith as follows:
During the campaign to repeal the 8th, the Yes-side was often criticized for being quiet from the start, and not having great slogans and a strong message, and this was linked to thoughts about their success, with a loss being expected. The outcome however was otherwise with the vote being bigger than anticipated. Thus, the rather vague campaign from the Yes-side might with hindsight be seen as a reliable strategy, also from the side of the parliament being vague in the referendum details. One might argue that the 2016 debate in the United Kingdom that was for or against Brexit is also a clear example of successful referendums where the question on “what exactly was in mind” leaves as an echo in the debates. Another factor of success tied to some degree of vagueness could be that some voters who were open to a certain degree of liberalisation would revoke their stand if the proposal for abortion without restriction in the first 12 weeks of pregnancy exceeded their own ambitions of liberalisation. This is action below federal level, where the citizens are involved in shaping the outcome, but it still has a direct link to the governing.
In contrast to this, the side against repealing the 8th was driving a campaign that some argued was outdated, since the campaign was directed to keep abortion illegal, neglecting the fact that abortion is in fact both accessible and legal in the majority of Europe, making the question of the referendum not “should abortion be an option?” because in fact abortion is an option, and every day an average of 90 women travel to the United Kingdom to get abortions. The other alternative is to illegally order abortion pills from online, which has not only a risk of imprisonment but also poses a great health hazard. Therefore, for some, the question regarding the referendum was rather “should abortion be safely implemented?”.
Issue ownership is a form of electoral campaigning that assumes that “for most voters, issues represent a choice between two sides. Issue opinions are characterized by two components: direction and intensity. Moreover, a key idea is that not all parties are judged equally strong on all issues: parties are evaluated more strongly on issues they stress more intensely." What this means is that emphasizing the strongest parts of your own campaign and ignoring the strongest of the other parts is sometimes successful, but seemingly not in this case. The idea would be to fight the fight in the parts of your choosing where you are strongest, and the side against repealing the 8th worked by framing the campaign with the message that the unborn child is a human from the moment of conception, and that they were fighting for the rights of the unborn.
This not only shows a seismic shift, but can also be linked to rising liberalisation in the genders. When voting to put the 8th in the constitution in 1983, the less liberal gender was the female as 75% of women compared with 62% of men voted to insert the ‘pro-life’ amendment. The situation was the same in 1992 referendums for abortion, where men were still more prominently liberal. Men were more in favour of constituting the right of travel than women were, a phenomena discussed in Brendan Kennelly and Eilís Ward of NUIG book, How Ireland Voted 1992 , where it is stated that women voted against in fear of the travelling increasing the likability of abortion, while men voted mainly in favour because of fear for the life of the mother. Further on, in the 2002 abortion referendum 31% of women, compared with 26% of men said to be completely against abortion whatever the circumstances be. This shows a surprising trend of men being more liberal, that is now declining. During the 2015 referendum for same sex marriage, 68% of polled women, compared with 57% of men said that they would vote in favour for. In the referendum on The Thirty-sixth Amendment of the Constitution of Ireland, according to RTE 72% of women voted for dropping the 8th amendment, whereas 66% of men voted for dropping the 8th amendment. This shows that for the past 35 years, a liberalisation has occurred where men voting against the 8th amendment has risen from 38% to 66%, and similarly for women where the vote against the 8th amendment has risen from 25% to 72%.
Looking at geographical patterns, it followed familiar ideas. The traditionally liberal versus conservative areas voted as anticipated; of the fourteen areas that were most strongly in favour of dropping the 8th, eleven were in Dublin and the other three nearby. On the other hand, the most conservative areas that were most strongly against were rural, with Donegal being the only constituency that had a majority of no-voters.
Other comparable factors from voting whether to put the 8th in the constitution or not, is how the turnout has risen, from 58% compared to 64%, and the rise in voting against (33% to 66%). The liberalism has risen in Ireland which is discussed by Pat Lyon in the book Public Opinion, Politics and Society in Contemporary Ireland, where he argues that both the electorate being replaced by younger voters, and changes of the opinions of people can explain the outcome of the referendum.
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