Drafting of abortion law to proceed despite court challenge
Concluding all possible legal avenues by early July will be extremely difficult
President Michael D Higgins: cannot sign the referendum result into law – therefore amending the Constitution – until the legal process has been exhausted. Photograph: Eric Luke
The Department of Health will continue to draft abortion legislation and make preparations for the introduction of abortion services while a court challenge to the result of the referendum proceeds.
The Government still hopes to table legislation in the Dáil before the summer recess, currently scheduled for July 12th or 13th. That would enable the committee stage of the Bill to take place in September before the Dáil returns, meaning that the legislation could be through the Dáil by late September.
However, the Government concedes that this timetable is dependent on the legal challenges to the referendum result being concluded before mid-July – a schedule that several high-ranking legal sources have told The Irish Times would be very rapid.
Three High Court challenges to the referendum result have been lodged and are due to be considered in the first instance next Monday. All allege various irregularities in the conduct of the referendum campaign and the casting of ballots. However, even if – as legal and political sources expect – the High Court rejects the challenges, an appeal would take a number of weeks at the very least.
Any appeal should go first to the Court of Appeal, but parties could seek a reference straight to the Supreme Court.
While challenges to the referendum result were not unexpected, they mean that the process is temporarily at least outside the control of the Government and the Dáil.
The President cannot sign the referendum result into law – therefore amending the Constitution – until the legal process has been exhausted. And until the Constitution is amended, the Government cannot bring forward the legislation to the Dáil.
While a provisional referendum certificate stating that the proposal has been carried has been published, that cannot become final until the legal challenge has concluded. Once that has happened, the Chief Returning Officer will send the certificate to the Taoiseach and the President, who will then sign the Thirty-sixth Amendment of the Constitution Bill. Only then is the Constitution actually changed.
Counsel for the State is likely to seek to have any hearings expedited in both the High Court hearing and in any subsequent appeal (assuming that the challenge to the referendum result is rejected). In a case dealing with the rights of the unborn, the Supreme Court brought forward both the hearing of the case and the judgment earlier this year.
Both political and legal sources say that they would expect the courts to co-operate in accelerating the process. But even so, legal sources say that concluding all possible legal avenues by early July will be extremely difficult.
The Department of Health insists, however, that its work preparing the legislation will continue apace. “There’s is nothing to stop us from continuing to work on it,” said one source. “It’s very much on time at our end.”
The department will also continue to liaise with the HSE and with medical bodies in order to put the practical steps in place for the establishment of abortion services in Ireland.