Fintan O’Toole: 8th Amendment demands punishment for women

I’m not sure people who want to defend the Eighth Amendment to the Constitution know how extreme their position is. Extreme, that is to say, not by the standards of those of us who always opposed it and would like it to be repealed, but even by the standards of mainstream social conservatism.

The Eighth is, in one crucial respect, on the lunatic fringe of anti-abortion activism. This is because, as has been made clear in recent years, it does not merely outlaw abortion in all but a very small range of circumstances. It does something else, something that most sensible conservatives regard as repugnant – it demands severe punishment for women who have abortions. There is no way around this: while the Eighth is in place, Ireland is committed to treating abortion, not just as a moral wrong, but as a crime more serious than, for example, child rape.

The New York Times columnist Ross Douthat is widely admired by social conservatives in Ireland and cited with approval by the Iona Institute. This is not surprising – as well as being a fine writer, Douthat is a passionate Catholic and fiercely anti-abortion. He supports the church's position that induced abortion is a very grave sin, an act of homicide. He is as vehement on this as anyone on the anti-repeal side of the Irish argument could want. Abortion rights, to him, are a "cruel ideology that has licensed the killing of millions of innocents" and "a grotesque legal regime in which the most vulnerable human beings can be vacuumed out or dismembered, killed for reasons of eugenics or convenience or any reason at all".

‘Extremist’

I was struck, therefore, by a column Douthat published on April 7th. It was, in part, about the firing by Atlantic magazine of one of its contributors, Kevin Williamson, because he had, as Douthat put it, "carefully defended the idea of someday prosecuting women who obtain abortions the way we prosecute other forms of homicide". While broadly supportive of Williamson, Douthat wrote: "From my own anti-abortion perspective, this opinion makes Williamson an extremist as well. When American laws restricted abortion they generally did not impose such penalties, and today's pro-life movement likewise generally rejects the idea of prosecuting women."

Isle of Man could be set to decriminalise abortion

---

Abortion Q&A: What will happen after you vote in the referendum?

---

Law to replace Eighth Amendment not subject of vote, says commission

---

Eighth Amendment has created ‘legal paralysis,’ Lawyers for Yes says

---

This is broadly true. Even the US president Donald Trump, in his most inflammatory mode, could not get away with the suggestion that women be punished for having abortions. During his rabble-rousing primary campaign in March 2016, he was asked "Do you believe in punishment for abortion, yes or no, as a principle?" He said: "The answer is that there has to be some form of punishment." And this was regarded, even by most of his fans, as a step too far. Even a vague commitment in principle to "some form of punishment" was too outrageous for Trump's world of hyperbole, invective and insult. Within hours, he recanted: "The doctor or any other person performing this illegal act upon a woman would be held legally responsible, not the woman."

What the Eighth Amendment requires is blunt: 14 years behind bars for a women who takes an abortion pill.

And yet this view that mainstream anti-abortion activists regard as “extremist” and that is too intemperate even for Trump, is not just respectable in Ireland. It is a constitutional imperative. The Eighth Amendment places Irish law inescapably on the lunatic fringe. It puts the dignity of the State on the same side as the craziest fanatics, the most recklessly provocative shock jocks, the windiest blowhards. It is so far out that if you were to propose what it requires in moderate anti-abortion circles in most parts of the world, people would walk away for fear of being tarnished by your mad zealotry.

A special crime

What the Eighth Amendment requires is blunt: 14 years behind bars for a women who takes an abortion pill. This is not a throwback to Ireland’s dark past. It is a present reality. A little over a year ago, Bríd Smith proposed a Private Members’ Bill to replace the 14-year sentence mandated by Irish law with a token €1 fine. The Dáil voted overwhelmingly to keep the 14-year sentence in place. It did so because the advice from the Attorney General was that the Eighth Amendment left it with no choice: “If the State is to fulfil its obligations under article 40.3.3, this prohibition must be backed up by an effective sanction that reflects the seriousness of the offence.”

This, after all, is the point of the amendment. It elevates abortion above the rest of the criminal law, making it, like high treason, a special crime that demands an especially harsh sentence. And so long as the amendment is there, there is no choice in the matter. Taking those two little pills has to be punished more severely than raping a child or wrecking the economy.

I’m sure most anti-abortion activists in Ireland don’t really agree with this. Like their American counterparts, they find the idea of brutal punishment for women in these circumstances grotesque and regard those who advocate it as deranged ultras who discredit their cause. But it is the inescapable consequence of the Eighth. If you defend the Eighth, you defend punishment. If you do not defend punishment, you have to get rid of the Eighth.