Abortion referendum will not result in legal vacuum
Current legislation will remain in place until or unless an amending Bill is enacted
Dr Eoin O’Dell, associate professor of law at Trinity College Dublin. Photograph by Cyril Byrne
Current legislation relating to abortion will remain in place until or unless an amending Bill is enacted.
This means there would be no legal vacuum between the outcome of a referendum this summer to repeal the Eighth Amendment, if it is carried, and the introduction of any new legislation in its place.
The Government has not set a timeframe for the introduction of legislation to allow for abortion on request up to 12 weeks should the referendum be passed to repeal the amendment, which guarantees the equal right to life of the mother and unborn child.
A spokeswoman for Minister for Health Simon Harris said it was too soon to set a timescale but “the timing for that will start to kick in after the referendum” if it was passed. The referendum is expected to take place at the end of May.
Associate professor of law at Trinity College Dublin Eoin O’Dell said “the legislation relating to the very limited circumstances in which terminations can occur now will all stay in place until the Oireachtas either repeals or amends”.
The current legislation includes elements of the 1861 Offences Against the Person Act and the Protection of Life During Pregnancy Act.
A commitment has been made to introduce repealing legislation which will include a policy paper to be published by the end of February to ensure TDs and Senators will know what is involved when the Oireachtas debate commences on legislation to allow the referendum go ahead.
Detailed heads of the Bill will go through Cabinet and be published at the end of March which will clearly define the amending legislation should the referendum pass.
Dr O’Dell said: “It is only a political commitment that that legislation [published] will be enacted but there has never been a case where it hasn’t been enacted” following a referendum.
“In political terms it’s a package deal even though in legal terms the referendum is one process and the enactment of the legislation is another.”
He said there would always be drafting detail but if they publish the heads of the Bill and then draft it accordingly, that will be a significant amount of information.
“There will also be constraints that until the Supreme Court rules in the pending case relating to the legal status of the unborn, they won’t know quite what their full room for manoeuvre is.”
He said it would be unusual having made a political promise to enact legislation based on the heads for the Bill to depart too much from them.
The Minister’s spokeswoman said that in the case of the children’s rights referendum there was a very detailed heads of the Bill published on the department website before the referendum for the actual Bill and a similar situation would apply with amending health legislation after the referendum.