Based on legal advice from the attorney general, Seamus Woulfe, the Cabinet decided to differ with the Oireachtas Committee on the Eighth Amendment, which called for a simple repeal.
The 1983 amendment guarantees the equal right to life of a mother and her unborn child.
The Cabinet met to formally agree its position, but Health Minister Simon Harris was clear in his support for repealing the amendment and calling for allowing abortions in all cases up to 12 weeks.
Mr Harris has been working with officials in his department and the attorney general on the wording of the referendum, due to be formally published at the beginning of March.
Mr Harris outlined the two options to his colleagues.
The first was to ask voters whether or not to repeal the Eighth Amendment.
On legal advice, it is expected he will suggest to colleagues that, along with repealing the amendment, new wording should be added to the Constitution explicitly stating that the Oireachtas legislate on such issues.
Mr Harris said that, whatever the Cabinet agrees, the people will be asked to repeal the Eighth Amendment in full.
He said if ministers agree to add wording into the Constitution to explicitly state that the Oireachtas should legislate in this area, it would be done so on legal advice.
Mr Woulfe briefed the Cabinet on this issue at the meeting, setting out why the repeal and replace option was preferrable.
He advised against a straightforward repeal, known as repeal simpliciter, and insisted an enabling provision be inserted into the Constitution in the event of a repeal.
The provision, which would state that the Oireachtas has the power to legislate for abortion, is necessary because it would provide greater legal certainty and would minimise the risk of a successful legal challenge, said Mr Woulfe.
Mr Harris also outlined his approach to the draft legislation that the Government plans to introduce if the referendum is passed.
Mr Harris previously told ministers he was preparing this draft legislation in line with the Oireachtas committee’s proposal to allow terminations up to 12 weeks.
While Taoiseach Leo Varadkar and his ministers have collectively agreed to holding a referendum, each will be free to campaign on either side of the argument.
Mr Varadkar is backing repeal and is also supportive of the 12-week unrestricted abortion recommendation.
Speaking ahead of the meeting, Mr Harris said: “I would also ask the Government to give me permission to go ahead with a draft of the legislation that would be put in place if the people of Ireland said yes. I’ll be asking for the Government to come to an agreed approach in relation to that.”
Hurdles to cross before vote date
Last night’s Cabinet decision to formally agree to hold a referendum on the Eighth Amendment marks the latest stage in deciding its future.
However, before any such May 25 or June 8 vote takes place, a series of hurdles need to be overcome.
These are the referendum wording itself and the exact laws that would be introduced if the amendment is repealed.
In light of yesterday’s decision, the Government’s attention now must turn to the referendum bill and the 12-week limit health bill. Both are crucial.
The most pressing of these bills is the referendum bill, which, when completed, will include the exact wording of the referendum question.
The heads of bill for the referendum bill are expected to be published by the middle of February, before the bill itself is published at the start of March and debated in the Dáil and Seanad.
After those debates, President Michael D Higgins would be expected to sign off on the wording by the end of March, with a likely referendum date of either May 25 or June 8.
Like the legal timeline for the referendum bill, yesterday’s Cabinet meeting has also formally started the process for the potential replacement to the Eighth Amendment, with this issue addressed in the separate health bill.
The health bill is currently being drafted by the Department of Health, and focuses specifically on a likely new law allowing unrestricted access to abortion up to the 12th week of pregnancy.
While the full bill will not be published until after a potential repeal referendum result, Government sources have confirmed its heads of bill will be revealed in mid-March when the referendum bill is debated in the Dáil and Seanad.
This is because of a long-standing position taken by the Government that as much information on what will potentially replace the Eighth Amendment be made available before the referendum.
- January 29: Special cabinet meeting formally confirms referendum plans, allowing work on a referendum bill and the 12-week abortion limit health bill to officially begin;
- Middle of February: Heads of bill for the referendum bill to be published
- Start of March: Full referendum bill published;
- Middle of March: Referendum bill debated in Dáil and Seanad;
- Middle of March: Heads of bill for the health bill to be published;
- End of March: Referendum bill expected to be signed into law by President Michael D Higgins.