Examining what has been decided on Eighth Amendment

The Department of Health has summarised the attorney general’s advice on the proposed referendum to repeal the Eighth Amendment of the Constitution, writes David Young.

Voters will be going to the polls, likely at the end of May or beginning of June, to cast their vote on liberalising Ireland’s abortion laws.

The Government has formally backed proposals to hold a referendum on the State’s constitutional amendment on abortion by the end of May.

Taoiseach Leo Varadkar said Ireland already had abortion, but that it was unsafe, unregulated, and unlawful.

Voters will be asked whether they want to repeal the Eighth Amendment of the Constitution, which gives equal right to life to the mother and the unborn, and replace it with new wording to allow parliament to legislate on

abortion in the future.

The Taoiseach said that if people vote to repeal, the Government would then table draft legislation that would allow for unrestricted abortion up to 12 weeks into pregnancy.

Terminations are currently only allowed when the life of the mother is at risk, and the maximum penalty for accessing an illegal abortion is 14 years in prison.

Last December, a report by a specially convened parliamentary committee found the Eighth Amendment was not fit for purpose and should be repealed.

That followed recommendations from the 100-member Citizens’ Assembly to liberalise the law on terminations.

The committee also recommended abortion be available up to 12 weeks of pregnancy without a woman having to explain her decision.

While the Cabinet has adopted a collective position on the issue, Mr Varadkar said ministers will be free to oppose the Government and take different positions on the contentious matter.

The referendum will focus on the fate of the Eighth Amendment, not on the specifics on how the law would change if the Constitution was altered.

In the course of a four-hour meeting on Monday night, ministers were briefed on the matter by the attorney general, who advised against a straightforward repeal of the amendment.

Health Minister Simon Harris was given permission to draft a bill to be put before the Dáil in the event of the Eighth Amendment being repealed.

He has been working with officials in his department and the attorney general on the wording of the referendum, which is expected to be formally published at the beginning of March.

Mr Harris said: “Just because an issue is complex or sensitive it does not mean it can be ignored.

“I welcome the decision the Government has made. It is very important to stress any legislation to amend constitution would remain subject to review.

“The Government does not intend to, or wish to, limit the power of our courts to interpret law.

“Anyone who wants any change to our regime it is necessary to repeal the Eighth.

“This issue is not going away. It is time for the people of Ireland to have their say on that.”

If the electorate votes to repeal the Eighth Amendment, any draft legislation would only become law if the Dáil votes for it, and that is not a foregone conclusion given the Fine Gael coalition is a minority administration and TDs will vote on conscience.

The outcome of the referendum could also prompt a Supreme Court challenge over whether the Constitution as a whole contains an implied fundamental right for the unborn, on top of the specific terms of the Eighth Amendment.

The exact date for the referendum has not been formally agreed, but the Taoiseach said it would be before the end of May.

The polling date can only be set after both the Dáil and Seanad have passed a referendum bill.

Below is the summary of the legal advice given by the attorney general, prepared by the Department of Health.

The department prepared this information note in order to explain the legal reasons that have informed the approach to the amendment of the Constitution that has been adopted.

- The Report of the Citizens’ Assembly recommended, inter alia, that Article 40.3.3 of the Constitution should be

repealed and replaced with an article which explicitly authorises the Oireachtas to legislate to address termination of pregnancy;

- The report of the Joint Committee on the Eighth Amendment of the Constitution recommended, inter alia, that

Article 40.3.3 of the Constitution “be repealed simpliciter”;

- Against this background, the Minister for Health sought the advice of the attorney general on the potential legal and constitutional implications of a repeal simpliciter of Article 40.3.3 of the Constitution;

- The attorney general advised that there is no absolute certainty about the post-repeal landscape of rights. If Article 40.3.3 were repealed simpliciter, it might subsequently be argued before the courts that the unborn have residual rights arising under other Articles of the Constitution that could continue to restrict the power of the Oireachtas to legislate on the issue;

- To mitigate the uncertainty that might arise in such circumstances, it was advised that consideration should be given to inserting wording into the Constitution that expressly affirms the right of the Oireachtas to legislate for the regulation of termination of pregnancy;

- While Article 15.2 of the Constitution provides generally that the Oireachtas has the power to make laws for the State, the legal advice is to the effect that the above approach would have the advantage of making it clear, through express words, that the Oireachtas has power to legislate on the subject of the termination of pregnancy;

- If the amendment is adopted by the people, the Oireachtas would have an express power to legislate to regulate termination of pregnancy as it considers appropriate, in the same way as it legislates in every other area of policy;

- The insertion of the additional wording would bring greater constitutional certainty to the primary authority of the Oireachtas to make laws in this area, dealing with controversial social and medical matters;

- Such an amendment would make it clear that it will be primarily a legislative function for the Oireachtas to

determine how best to guarantee and balance proportionately the rights, interests, and values that are engaged, in the interests of the common good;

- Any such amendment would be fully consistent with, and maintain, the separation of powers provided for in the Constitution. It would not oust the judicial review jurisdiction of the courts as to the validity of any law, or restrict rights of access to the courts. Legislation enacted post-amendment would remain subject to review by the courts like any other legislation;

- While no approach can be completely free from the risk of legal challenge, the attorney general advises that the approach recommended above is likely to be a legally safer option than a simple repeal.

Such an enabling provision is not without precedent. The Constitution, in a number of places, expressly restates that the Oireachtas has power to make certain laws in particular contexts. Examples include:

- Article 42A on children’s rights — see, for example, Article 42A.4.2 which provides that provision shall be made by law for ascertaining the views of children and giving them due weight in the context of certain legal proceedings

- Article 40.6.1, which, inter alia, provides that provision may be made by law to prevent or control certain kinds of public meetings

- Article 10.3, which provides that provision may be made by law for the management of certain property belonging to the State.

The above advice of the attorney general informed the approach of the Minister for Health to recommend to the Cabinet that a referendum on Article 40.3 .3 of the Constitution should be held, asking the people to:

- Repeal Article 40.3.3 of the Constitution in full, as recommended by both the Joint Oireachtas Committee and the Citizens’ Assembly; and

- Insert a new Article into the Constitution to expressly affirm that laws may be enacted by the Oireachtas providing for the regulation of termination of pregnancy;

- The decision of Government on January 29 was to approve the above recommendations of the Minister for Health on the approach to be taken to the referendum.

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