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Abortion, the Irish Constitution, and constitutional change

David Kenny


Abortion in Ireland is regulated by a constitutional provision that was inserted following a referendum in 1983. In May 2018, the Irish people, will voted to remove this provision from the Irish Constitution. In this paper, I examine the reasons for the insertion of the provision; the problems that emerged with it over time; the factors that motivated the campaign for change; and the gradual process of negotiating a proposed change within the political system. The paper concludes by drawing general lessons that might be derived about the about the costs and consequences of the Irish experience of making abortion into a matter of constitutional law and debating its removal. Though somewhat effective in blocking political opponents, constitutionalising abortion has had unexpected consequences: creating uncertainty; involving the judiciary in the regulation of abortion; and perhaps creating a tendency to elevate social and political issues to the constitutional level.


Abortion; constitutional right to life of the unborn; referendums; constitutional change; citizen-led constitutional change; judicial power.

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ALBERT, Richard. The Expressive Function of Constitutional Amendment Rules. McGill Law Journal, vol. 59, n. 2, p. 225-281, 2013.

BINCHY, William. Supreme Court has given us a clear choice in abortion referendum. The Irish Times, 14 Mar. 2018.

CARSWELL, Simon. Citizens’ Assembly: reaction from both sides of abortion debate. The Irish Times, 23 Apr. 2017.

DALY, Eoin. Reappraising judicial supremacy in the Irish constitutional tradition. In: HICKEY, Tom; CALLIHANE, Laura; GALLEN, James (eds.) Judges, Politics and the Irish Constitution. Manchester: Manchester University Press, 2017.

DIXON, Rosalind. Amending Constituting Identity. Cardozo Law Review, New York, vol. 33, n. 5, p. 1847-1859, 2012.

DIXON, Rosalind. Constitutional Amendment Rules: A Comparative Perspective. In: GINSBURG, Tom; DIXON, Rosalind (eds.). Comparative Constitutional Law. Cheltenham: Edward Elgar, 2011. p. 96-111.

DOYLE, Oran; KENNY, David. Constitutional Change and Interest Group Politics. In: ALBERT, Richard; CONTIADES, Xenophon; FOTIADOU, Alkmene (eds) The Foundations and Traditions of Constitutional Amendment. Oxford: Bloomsbury, 2017.

GINSBURG, Tom; MELTON, James. Does the constitutional amendment rule matter at all? Amendment cultures and the challenges of measuring amendment difficulty. International Journal of Constitutional Law, Oxford, vol. 13, n. 3, p. 686–713, 2015.

GIRVIN, Brian. Social Change and Moral Politics: the Irish Constitutional Referendum 1983. Political Studies, London, vol. 34, n. 1, p. 61-81, 1986.

HOGAN, Gerard. Law and Religion: Church-State Relations in Ireland from Independence to the Present Day. American Journal of Comparative Law, vol. 35. n. 1, Jan. 1987.

KELLEHER, Billy. Why I was persuaded abortion up to 12 weeks should be allowed. The Irish Times, 21 Mar. 2018.

LOSCHER, Damian. Abortion poll findings dramatic but attitude change has been gradual. The Irish Times, 26 Jan. 2018.

MURRAY, Brian. Legal consequences of retention, repeal, or amendment of Article 40.3.3 of the Constitution. The Citizen’s Assembly, 04 Mar. 2017. Available at .

O’BRIEN, Breda. Fatally flawed legislation will not put abortion to bed. The Irish Times, 06 July 2013.

O’REGAN, Michael. Government defeats Daly’s abortion Bill with big majority. The Irish Times, 10 Feb. 2015.

O’TOOLE, Fintan. Not doing anything about abortion. The Irish Times, 31 May 1997.

SINNOTT, Richard. Cleavages, parties, and referendums: Relationships between representatives and direct democracy in the Republic of Ireland. European Journal of Political Research, vol. 41, p. 811-826, 2002.

TIERNEY, Stephen. Constitutional Referendums: the theory and practice of republican deliberation. Oxford: OUP, 2012.

TRIBE, Laurence. Abortion: The Clash of Absolutes. New York: Norton, 1990.

W LANDES, William; POSNER, Richard. The Independent Judiciary in an Interest-Group Perspective. Journal of Law and Economics, vol. 18, n. 3, p. 875-901, Dec. 1975.

WHYTE, John Henry. Church and State in Modern Ireland 1923-1979. 2. ed. Dublin: Gill and MacMillan, 1980.



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