The Taoiseach has suggested that legislation brought in after a repeal of the Eighth Amendment could be unconstitutional.
Leo Varadkar raised the possibility of other protections around the right to life, children’s rights, and rights to bodily autonomy which could exist elsewhere in the Constitution and has sought legal advice around this.
Mr Varadkar told the Dáil that Government has consulted with the attorney general around the proposal of the Citizens’ Assembly to have an enabling provision specifying that legislation in this area is the “sole prerogative of the Oireachtas and not the courts because there are other rights in the Constitution”.
“We are awaiting advice from the Attorney General about that because we would find ourselves in a very strange situation if we repealed the Eighth Amendment only to find out that other rights to life exist in other parts of the Constitution that might then make any legislation we pass unconstitutional,” said Mr Varadkar.
His comments come ahead of a two-day Dáil debate on the findings of the Oireachtas Committee on the Eighth Amendment, which includes proposals around a referendum on removing the Eight Amendment from the constitution and drafting legislation that would come into force if a referendum passes.
The committee recommend that Article 40.3.3 be taken out of the Constitution and politicians be allowed to legislate for abortion.
They also recommended allowing abortions without restriction up to 12 weeks.
Mr Varadkar reiterated that he is committed to having a referendum in May or June if that is possible.
Labour leader Brendan Howlin asked if it is the Government’s intention to bring a repeal simplicitor resolution forward as recommended by the committee or whether an amended version would be brought before the House.
Mr Varadkar said the Government and the Cabinet have not yet made a decision on this.
“I am keen to hear people’s views,” he said. “We had a good discussion at Cabinet last week. I had a meeting of my own parliamentary party on this issue, which lasted for five hours yesterday, hearing views from across the parliamentary party.
“There will be a debate in the Dáil and Seanad over the next couple of days and, at that point, having listened to the views of Members and the public, a proposal will be brought to Cabinet.”
He added that Government does not intend to come up with new wording but said the Citizen’s Assembly enabling provision may need to be taken into account when the referendum question is drafted.
“The Citizens’ Assembly differed from the all-party committee as to whether there needed to be an enabling provision making it clear that only the Oireachtas can make the law on this issue because there is another right to life in the Constitution,” he said.
“There are also rights to privacy, children’s rights, and rights to bodily autonomy.”
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