Given that Leo Varadkar has once again brought up the results of the Citizens’ Assembly on abortion, we thought it was a good time to share a few thoughts on misconceptions associated with the Assembly.
False: That the Citizens’ Assembly is representative of the Irish population
99 citizens, chosen at random to represent the views of the people of Ireland, broadly representative of society as reflected in the Census. 99 sounds good. 99 sounds edgy. Small enough to handle, big enough to be representative. Right? At the time of writing, the Assembly website actually only lists 97 members. 24 dropped out along the way. Most were replaced. Four were not. A maximum of 95 people, then, voted on the ballots. That goes down even further. On Saturday, 22 April, only 91 members voted. For the ballots conducted on Sunday, 23 April, the highest valid poll was 88, and that happened only once. In every Sunday ballot bar one, the total valid poll was 87. In two ballots, the total valid poll was 86. So, actually, the Citizens’ Assembly just gives us the opinions of 86-91 people out of a total population of 4,761,865. Not huge. But that’s hardly relevant, right? A representative body doesn’t have to be numerically significant, right? After all, a true representation of the voice and will of the Irish people could only be achieved in a full referendum. It doesn’t matter that only a tiny number of people had the opportunity to influence policy, as long as that tiny number were actually representative. Right? Right?
But they weren’t representative. The list of 97 members shows that there were nine counties with no representation at all: Tipperary, Kerry, Sligo, Longford, Carlow, Cavan, Laois, Leitrim and Offaly.
Given the absentee rate, it is highly probable that even more counties would have been left without representation on the Assembly. Of course, it could be argued that, basically, all people in the midlands will have roughly the same opinion on things, and a person from Cavan is pretty much the same as a person from Monaghan, and someone from Kerry is, whatever they claim, the same as someone from Cork. The Assembly members were selected from parliamentary constituencies, not county lines, so the panel is representative from a constituency perspective, just not a county one. True, but in a parliamentary, constituency-based election, people from the counties that were not represented on the Assembly still have the opportunity to vote and influence decisions. Merely because people are represented by constituencies in one context does not mean that constituencies are automatically representative in an entirely different one. Without the votes of the people, constituencies are not representative. Further, the number of Dublin members of the Assembly was disproportionate. Dublin’s population comprises slightly over 24.6% of the total population of Ireland, according to the 2016 census, yet made up 29% of the actual members of the Citizens’ Assembly (28 out of 97 listed). To be properly representative, there should have been four less Dublin members on the Assembly. This may seem insignificant, but it’s worth noting that Dublin can sometimes be out of kilter with the rest of the country. The divorce referendum, passed in 1995, was the majority verdict in only 16 constituencies out of 41. 11 of those constituencies were Dublin-based, and the referendum was passed only by a margin of 9,098 votes. With four unearned, undeserved representatives on the tiny Citizens’ Assembly, these unearned, undeserved Dublin voices could easily have influenced the outcome.
Further problems surrounding representation arise when one considers that the Assembly meetings were held on five different weekends in Dublin. It’s pretty likely that those from the other side of the country found it difficult to travel on each of these occasions. The same could be said for members of particular groups, such as farmers, parents, carers, the elderly and those who do not have the luxury of having weekends off. It is therefore, again, highly probable that these groups were unrepresented on the final make-up of Assembly members, in the ballots and in discussions.
The Citizens’ Assembly, on these bases, is wide open to accusations of unrepresentativeness.
However, even if we ignore this, because a lot of it is based on supposition (even if it is very likely), there are real problems with what the Assembly were asked to vote on, discussed further below.
False: That the members of the Assembly always voted for what they believed in
On Saturday 22 April, the 91 members of the Assembly who were present voted on whether or not to retain Article 40.3.3º in full. 12 people voted to retain it in full, 79 voted not to do so. However, for the second ballot, on whether to repeal or replace Article 40.3.3º, 39 voted to repeal, 50 voted to replace and only 2 chose to give no opinion. If we assume that these two no opinion votes had voted, in the first ballot, to retain Article 40.3.3º, 10 people who want to retain the Eighth Amendment in full then voted immediately afterwards either to repeal or replace it. That is, they voted in favour of something that they expressly wished not to happen. It is quite possible that, even if they had done the logical thing and given no opinion, the result would have remained the same. Perhaps they opted for what they felt was the lesser of two evils. This will not be the case in a referendum, which will be a straightforward pro-retain or pro-amend vote. Perhaps they changed their minds in between the first and second ballots (which would, it is suggested, speak to a dangerous groupthink-like dynamic at the Assembly’s heart—an ‘Oh well, may as well go along with what the majority want, forget about personal convictions’ attitude—further jeopardising the extent upon which it can be relied as an indication of sensible policy). But the fact that 10 people voted in favour of something they disagreed with, that 10 votes were lost, swallowed up in the overriding and aggressive message that allowing abortion is the best, the only, way, is a neat portrayal of the democratic imbalances and subsequent misinterpretations that dog the Citizens’ Assembly.
Vote in favour of allowing abortion in the case of real and substantial physical risk to life of the woman
82 out of 87 members of the Assembly voted to allow abortion in the case of real and substantial phsyical risk to the life of the woman. This ballot was, actually, completely pointless, as it is already permitted under the terms of Article 40.3.3º, which protects the right to the life of the unborn child and the equal right to life of the person carrying it. Sections 7 and 8 of the Protection of Life During Pregnancy Act make this express. In a case of real and substantial physical risk to life of the woman which can only be averted by the ending of unborn human life, whether this is intentional or an unintended but inevitable side effect, there is nothing in the terms of Article 40.3.3º to prevent this. The status of the child in utero is not elevated above the status of the person carrying it. Whether Article 40.3.3º is amended or not, this will not change. To include it as one of the grounds for changing Article 40.3.3º was a waste of time. Given that it was the very first ballot and that it was followed immediately by another misconceived and inaccurate ballot, it arguably would have served to colour the view of many voters, making anyone who tended towards a pro-life perspective seem callous to wish to risk the lives of pregnant women. It is also profoundly insulting to pro-life women who have experienced ectopic pregnancies and ‘indirect abortions’, e.g. as a result of chemotherapy. Situations such as these would never have been considered abortions, as they are unavoidable, yet the Citizens’ Assembly has taken it upon itself to frame all of these procedures as abortions. This is a blatant and dangerous misrepresentation of Article 40.3.3º. One would have expected the Expert Advisory Group to have addressed this before the ballots were taken.
Vote in favour of allowing abortion in the case of real and substantial physical risk to life of the woman by suicide
79 out of 87 members of the Assembly voted to allow abortion in the case of real and substantial physical risk to life of the woman by suicide. This is already permitted under the terms of Article 40.3.3º, as legislated for under section 9 of the Protection of Life During Pregnancy Act 2013 and as voted for by the Irish electorate in a 2002 referendum (although by an extremely narrow margin: 50.42% in favour of allowing this as a ground for abortion, 49.58% against; 10,556 votes in the difference). Whether Article 40.3.3º is amended or not, this will not change Irish law. To suggest the opposite is dangerous misinformation. Given that the Expert Advisory Group had no less than three legal experts on it (Oran Doyle, Deirdre Madden and Rachael Walsh), it is surprising that this was not mentioned. Of course, it could be argued that, if it won’t change anything, the fact that pointless ballots were held is of no matter. Yet it does matter: it matters because it generates in the mindset of everyone who hears of these ballots the entirely false and dangerous impression that Article 40.3.3º seeks, purposely, to risk the lives of women, when, actually, the Article is a lifesaving amendment. The ballots are the ideal PR for pro-repealers, yet are based on wholly inaccurate depictions of Irish law.
This article discusses only four aspects of the Citizens’ Assembly that present as problematic. There are others which merit further discussion: the use of the term ‘non-fatal abnormality’ instead of ‘disability’, of ‘fatal foetal abnormality’ instead of ‘life-limiting illness’, the bizarre option of ‘Prefer not to state an opinion’ when the entire aim of the Citizens’ Assembly was to enable people to form opinions. For the time being, however, it seems that caution in relation to the Assembly is well-placed. The Citizens’ Assembly in and of itself cannot be interpreted as representing the will of the Irish people or as portraying an accurate idea of what the Eighth Amendment is about, and its terms should not provide the framework for any future legislation drafted by the Oireachtas.
The Statistics Fairy