Supreme Court clears way for abortion law

Government ‘on track’ to have legislation through in the next parliamentary session

President Michael D Higgins is expected to sign the abortion referendum bill into law next week, deleting the constitutional ban on abortion and paving the way for the government to introduce legislation allowing for abortion to the Dáil in the coming weeks.

The Supreme Court on Friday decided that there were no grounds to hear an appeal of a decision by the Court of Appeal last month which upheld the High Court’s rejection of a challenge to the abortion referendum result.

The Master of the High Court will now inform the referendum returning officer that there is no legal impediment to finalising the result of the referendum. Once the returning officer Barry Ryan certifies the final result, the President can sign the referendum bill into law, thus changing the constitution.

Government sources say they expect the bill providing for legal abortion up to 12 weeks in pregnancy and in specified circumstances thereafter to be approved by Cabinet on September 25th, and to come before the Dáil for its first debate (second stage) on October 3rd.


The Government hopes to complete second stage in the Dáil before the Budget on October 9th.

Speaking at the Fine Gael think-in in Galway, Taoiseach Leo Varadkar welcomed the Supreme Court’s decision.

He said the constitutional change approved in the referendum “can now be ratified and signed into law by the president, thus formally amending our constitution and giving effect to what people voted for back in May.

“And that allows us now as a Government to bring forward the legislation to allow for abortion in Ireland in certain circumstances when the Dáil returns,” Mr Varadkar said.

He said the Government was “on track, as we planned, to have that legislation through in the next parliamentary session, and the new services available to Irish women who need it in January.”

The Chief Justice, Mr Justice Frank Clarke, Mr Justice Donal O'Donnell and Mr Justice Peter Charleton met privately in chambers on Thursday to consider an application by Joanna Jordan of Upper Glenageary Road, Dun Laoghaire, Dublin, for leave to appeal and the State's formal written opposition. Ms Jordan's bid to challenge the referendum result had failed in both the High Court and the Court of Appeal.

Refused the application

In a determination published on Friday afternoon, the three judges refused the application.

They ruled Ms Jordan had not met the constitutional criteria for an appeal as she had not shown stateable grounds that raised issues of general public importance or established an appeal was necessary in the interests of justice.

They said there were essentially two grounds of appeal.

The first concerned the engagement of members of the government on the Yes side of the referendum campaign and certain claims about what was said by government members during the campaign.

The law in this area is well settled, the judges said. There is nothing in the Constitution to prevent government members engaging in the debate as to whether the Constitution should be changed and the Constitution itself contemplates it can be changed by amendment.

The settled case law makes clear members of the government are entitled to engage in that process and debate and it was for the people to form a judgment at the end of the day on the merits or otherwise of the proposed amendment.

In those circumstances, the grounds related to the involvement of members of the government in the campaign were unstateable, the judges said.

The second ground concerned alleged irregularities in the registration of voters and conduct of the referendum.

The Supreme Court said both the High Court and Court of Appeal applied the correct test of the evidence in that regard and any further appeal would simply involve a reassessment of the evidence to ascertain whether it might be said there was an error.

As a result of legislation setting out the nature of appeals to be decided by the Supreme Court, it is no longer the function of the Supreme Court to correct an error, particularly a claim the lower courts’ assessment of evidence lead to an incorrect view of the facts, they said.

It was also difficult to disagree with the Court of Appeal assessment of the evidence presented by Ms Jordan as “flimsy”.


They also ruled Ms Jordan had advanced no stateable basis for an appeal against the decisions of the High Court and Court of Appeal to award costs in those courts against her.

Ms Jordan wanted the court to hear her appeal over the Court of Appeal’s upholding of the High Court’s refusal to grant her leave to bring a petition aimed at overturning the Yes result of the May 25th referendum.

Her claims included alleged irregularities in the registration of voters and the conduct of the referendum.

Last July, the president of the High Court, Mr Justice Peter Kelly, ruled Ms Jordan had made out no grounds entitling her to bring a petition.

In dismissing her appeal against his decision, the three-judge Court of Appeal last month described her claims as a “frustration of the democratic process”.

The Supreme Court’s refusal to hear a further appeal means the way is cleared for the formal certification of the result of the referendum.

More than 1.4 million people voted on May 25th to repeal the Eighth Amendment to the Constitution which afforded equal protection for the right to life of the unborn and its mother. 723,632 people voted against repeal.

Once the result is certified, the President can sign the referendum bill, triggering the amendment of the Constitution. Only then can legislation be introduced in the Oireachtas but preparations in the Department of Health to introduce abortion legislation and to set up abortion services have been continuing.

Mary Carolan

Mary Carolan

Mary Carolan is the Legal Affairs Correspondent of the Irish Times

Pat Leahy

Pat Leahy

Pat Leahy is Political Editor of The Irish Times