Citizens’ Assembly proposals on Eighth Amendment are ‘confusing’

Legal advice raises concerns about language used in the group’s recommendations

Peter Boylan said the constitutional ban on abortion is ‘unworkable’ because of online access to abortion pills. Photograph: Brenda Fitzsimons/The Irish Times

Peter Boylan said the constitutional ban on abortion is ‘unworkable’ because of online access to abortion pills. Photograph: Brenda Fitzsimons/The Irish Times

 

Legal advice given to the Oireachtas committee examining the Eighth Amendment has described the recommendations of the Citizens’ Assembly as “slightly confusing”.

The members met in private on Tuesday to discuss the six options the committee is examining for changing the law on abortion.

Opinion given by senior counsel Nuala Butler raised concern about the language used by the assembly in its recommendations.

Ms Butler points to the proposal not to retain Article 40.3.3 in full, rather than its repeal.

While there is no material difference between the concept of something being repealed and something not being retained, Ms Butler said the recommendation suggests Article 40.3.3 should be kept in part.

She added: “Thirdly the second recommendation is phrased in terms of Article 40.3.3 being ‘replaced or amended’. This begs the question of whether replacement and amendment are intended to be synonyms or whether they are intended to represent two distinct concepts.”

The citizens’ assembly was tasked by the Government with making recommendations to be presented to an Oireachtas committee for deliberations.

The committee has been examining those proposals.

Judicial review

The legal advice presented by Ms Butler questions the recommendation by the assembly to give the Oireachtas the power to legislate in this area.

Their proposal “is silent as to whether this power is intended to preclude the possibility of judicial review of the legislation”, Ms Butler says.

The opinion also makes it clear a repeal of Article 40.3.3 without any further action taken would lead to all references to the life of the unborn, the equal right to life of the mother, the right to travel and the right to information being removed from the Constitution.

Replacing it would mean the removal of the existing text and the insertion of an alternate text in place of Article 40.3.3 and amending it would mean making an alteration to the existing text.

Ms Butler suggests replacing it would give the impression more substantial change is occurring.

‘Unworkable’ ban

Meanwhile, the former master of Holles St and chairman of the Institute of Obstetricians and Gynaecologists of Ireland Peter Boylan will tell the committee the constitutional ban on abortion is “unworkable” because of online access to abortion pills.

Prof Boylan, who has previously advocated in support of reforming the State’s abortion laws, will tell the committee on Wednesday that when the Eighth Amendment was enacted, “neither the world wide web nor the abortion pill had been invented”.

The availability of abortion-inducing drugs online, he says in his submission, means that “the genie is out of the bottle”.

Doctors have “grave concern” about the potential for harm by the use of unregulated medicines, he says.