President’s decision - We may rue failure to refer bill

The President’s decision to sign the Protection of Life During Pregnancy Bill into law may in time be seen as a miscalculation. He could have referred the bill to the Supreme Court and secured a definitive verdict.

Michael D Higgins consulted the Council of State, for some four hours, but the ultimate decision on whether the sign the bill into law or refer it to the Supreme Court was his alone.

If the court found it was unconstitutional, then the Oireachtas would either have to forget the whole thing, or go back to the drawing board and draft a new bill. That might be regrettable but hardly as regrettable as it will be if we have a whole series of challenges going through the courts in coming years.

Such challenges would take up the time of lower courts and could end up with the Supreme Court deciding that the act is unconstitutional. At that stage it will become painfully apparent that this decision could, and should, have taken much sooner.

Article 26 of the Constitution was designed to allow for the president to refer a bill to the Supreme Court in order to provide for a degree of certainty. It would then rule on the constitutionality of the bill within 60 days. If the court found that the legislation was constitutional, it could never again be challenged on constitutional grounds.

Signing the legislation into law without referring it to the court essentially invites all kinds of challenges on various different grounds that may take years. That may be good news for the legal profession, but it is bad news for our system of government.

During the debate on the bill, various people argued that aspects of the legislation are unconstitutional. Former junior minister Lucinda Creighton argued that the constitutionality of the bill was “full of landmines”.

Serious reservations were raised about the failure to impose any precise time limit on the availability of abortion. Deep concerns were expressed about the failure of the legislation to afford proper protection for the right of conscientious objection. For instance, the act does not deal with the obligations of institutions to act in relation to the legislation in a manner that might conflict with their religious ethos.

The arguments about various aspects of the act are likely to continue.

Such arguments will be a distraction that could have been avoided if the legislation had been referred to Supreme Court before its enactment.