Illustration by Vivienne Flesher
In a couple of weeks’ time, on May 25, Ireland will mark the fourth anniversary of the abortion referendum, when, with broad cross-party support, 66.4 percent of the population voted to repeal the Eighth Amendment to the Irish Constitution.
Adopted following a deeply divisive referendum in 1983, “the Eighth” asserted the right to life of the unborn, “with due regard to the equal rights of the mother.” Abortion had been illegal in Ireland since the passage of the British Offences Against the Person Act 1861, which was kept on the statute books after independence. But for religious conservatives it was not illegal enough.
In the early 1980s an alliance of conservative and right-wing religious groups rode the wave of Catholic fervor that washed over Ireland following Pope John Paul II’s visit in 1979. In effect, they orchestrated a preemptive strike against social liberalization. Alarm bells rang in 1980, when contraception was legalized on medical prescription and for “bona fide family planning purposes” only. What worried religious conservatives was that the legal argument for the right to contraception was based on the right to privacy—precisely the argument that led the way to the legalization of abortion in the United States after the Supreme Court’s ruling in Roe v. Wade.
The baleful consequences of the Eighth for Irish women and children quickly became apparent, and over the years further amendments guaranteeing the right to travel for an abortion and the right to information were added to the constitution, in order to try to soften the restrictive legislation. In 1992 the fourteen-year-old Ms X had been raped by a neighbor and was prevented by an injunction from traveling to England to terminate the pregnancy. The legal arguments centered on whether the suicidal child X’s right to life weighed in the balance against that of the fetus. The X case was not the first time the Eighth Amendment had come under scrutiny. In January 1984 a fifteen-year-old girl, Ann Lovett, had died along with her baby after she gave birth outside, and alone, in County Longford. But the 1992 case brought home to many people that the Eighth Amendment did not simply protect fetuses. It gave them more rights than the mothers who carried them. This was proved again in 2012, in the case of Savita Halappanavar, who died in an Irish state-affiliated hospital waiting for the heartbeat of her miscarried fetus to cease before she could be treated for sepsis.
Thirty-five years on from the adoption of the Eighth, it was clear to two-thirds of the population and the vast majority of Irish legislators that it had to go. Arguments for repeal focused not only on the tragedy for women caught on the wrong side of the fetus/mother right-to-life divide but also on the thousands who bought abortion pills online and took them unsupervised. (The rise in online sales are thought to account for the fall in the numbers of women traveling to the UK for terminations. In providing across-the-border abortion services, Mexico is preparing to be to the US what the UK was to Ireland.)
Ironically, given the X case, the No campaign (those against repealing the Eighth) tried to position itself as the defender of the rights of children—who were no longer described as the unborn, but the “preborn.” This argument didn’t wash with most people, and part of the reason for that, I’m sure, were the ongoing revelations of abuses in Ireland’s religious-run Mother and Baby Homes, the dead babies buried in septic tanks, and the scandal of forced adoptions, that had been in the news since the Irish Commission of Investigation into Mother and Baby Homes began its work in 2015.
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In Justice Samuel Alito’s leaked draft opinion on Dobbs v. Jackson Women’s Health Organization, there’s a blithe comment suggesting that abortion is no longer really necessary given safe-haven laws, which allow people to relinquish babies without legal repercussions. After all, “a woman who puts her newborn up for adoption today has little reason to fear that the baby will not find a suitable home.” Alito’s comments echo Justice Amy Coney Barrett’s recommendation that instead of a late abortion mothers could be required by the state “to go 15, 16 weeks more and then terminate parental rights at the conclusion” of the pregnancy, after the birth of the child.
Someone should send them a copy of the Irish Commission of Investigation into Mother and Baby Homes Final Report (2020). Or put them in touch with the advocacy group Adoption Rights Alliance, which campaigns for the statutory legal right of adopted people to their birth certificates and information about their early life. Or send them a link to the witness statements gathered and posted online by the Clann Project, founded “to help establish the truth of what happened to unmarried mothers and their children in 20th century Ireland.” Or get them to read Ann Fessler’s research on the costs for both women and children of the US system of coercive adoption in the years before Roe v. Wade. It’s really not difficult to find evidence of the life-long trauma, on both sides, when mothers—many of whom are also children—are forced to give birth to children they must then relinquish. It’s not difficult if you look.
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The Irish case is significant not only because of the large numbers of women who went through the system, in a country that offered them few alternatives other than (after 1967) traveling to England for an abortion, but also because of how long the system lasted, and therefore how many mothers and children are still around to talk about their trauma. There are myriad aspects to this trauma, but let’s consider just one: the complete break between birth mother and child that the Irish system maintains to this day, and that safe haven laws replicate.
It seems likely that most adoptions that took place from Irish mother and baby homes were technically valid—though not all of them, and there is plenty of evidence of babies who were illegally registered as the natural-born children of their adoptive parents, or who were trafficked from Ireland to the United States in the 1950s and 1960s, when the supply of white babies for adoption there was falling. But the fact that desperate women signed adoption consent forms, in the absence of any other options, tells us little except that the law, and society, were not on the side of lone mothers. A constrained choice is not a free choice. And many of these mothers did not understand that they would never see their child again. It was a closed adoption system, and it is still incredibly difficult for both mothers and children to trace their birth relatives.
Mothers gave evidence to the Irish Commission of the “unspeakable damage,” over a lifetime, of giving birth and losing a child to adoption. Adoptees spoke of their “lifelong feelings of isolation and abandonment.” Safe-haven laws mimic this system, and one advantage that they offer is the opportunity for adoptive parents not to have to negotiate with biological parents. It’s like surrogacy, but without even having to deal with the pregnant host. As Justice Alito notes, there’s a problem in the US with baby supply, which for a long time has fallen way below adoptive-family demand. Banning abortion would even up the numbers.
We know this world from fiction. I first read Margaret Atwood’s The Handmaid’s Tale shortly after it was published in 1985, and I trusted the blurb that described it as a “futuristic dystopian novel.” I was twenty-two years old and, in Britain if not in Ireland, arguments for feminism and equal rights still seemed to have purchase. I found it hard to credit the parts of the novel that sketched the activism of Offred’s mother, a second-wave feminist, as long-gone history, barely remembered in the new world of Gilead. It turns out the novel was realism all along.
In Ireland mothers who were coerced into signing away their children, and adoptees who were denied access to their birth parents while they were growing up, are filing legal cases against the Irish state, arguing that their human rights were violated. It seems likely that they will win in the European Court. But they have already won in the court of Irish public opinion. In 1983 Irish conservatives thought they could learn from the United States and preemptively introduce legislation that would render abortion doubly illegal. It is not too late for US conservatives to learn from Ireland’s mistakes, as the Irish public has learned the hard way.
