Repeal vote won’t mean unrestricted access to abortion, say legal experts

Any vote to repeal the Eighth Amendment will not lead to “abortion on demand” due to the separate legal and political hurdles such a result is almost certain to face.

Three independent legal experts made the prediction as a number of them separately said the Government should publish any legislation that would replace the Eighth Amendment before the referendum takes place.

Speaking during the latest meeting of the cross-party Oireachtas committee on the Eighth Amendment, Trinity College assistant professor of law David Kenny, Birmingham University’s global legal studies’ chair Fiona de Londras, and senior counsel Mary O’Toole said a repeal vote was unlikely to lead to unrestricted access to abortion.

The legal experts said while the public may decide to remove article 40.3.3 from the constitution, the reality is that because the decision could face a legal challenge and due to the political “ethos” of the Oireachtas, unrestricted access to abortion may not be the result.

“I think it is very unlikely ‘abortion on demand’ will be the outcome,” said Ms O’Toole. “I think the whole ethos of Ireland’s approach makes it unlikely. So, no, I do not think it [a repeal referendum vote] will lead to abortion on demand.”

The legal experts said their individual views are based on the fact that any referendum result is likely to face immediate High Court challenge and dismissed suggestions that a rare rule could be passed blocking any cases.

In addition, the legal experts said the Oireachtas would still have to legislate for new laws after a repeal vote, and that the Dáil’s “ethos” means unrestricted access to abortion would still be unlikely.

Mr Kenny and Prof de Londras told the committee that the Government should consider publishing any legislation that would replace the Eighth Amendment before next year’s referendum on the divisive issue.

Asked during a question- and-answer session if he would be in favour of any potential legislation to replace the Eighth Amendment being published before a vote on its future, Mr Kenny said “I agree that would be extremely helpful”, as it would allow the public to be fully aware of what the vote outcome would mean.

Meanwhile, in an hour-long private meeting before yesterday’s public discussions, Independent TD Mattie McGrath called for a video of an abortion taking place should be shown in public session.

The request was rejected by the committee, with Mr McGrath criticising the decision during public session yesterday.