Proposed fatal foetal abnormality Bill to be ruled unconstitutional

AG’s advice to Government to resist Bill before Dáil allowing for abortions in such cases

The Attorney General will advise the Government that the Bill to be proposed in the Dáil next week to allow for abortions in the case of fatal foetal abnormalities is unconstitutional, The Irish Times understands.

This will mean the Government must oppose the Bill.

However, Independent members of Government say they will seek a free vote and sought the Taoiseach’s agreement yesterday.

Independent Minister Finian McGrath said the Independents will not decide their attitude to the Bill until they meet tomorrow.


At yesterday's Cabinet meeting, Ministers Shane Ross and Mr McGrath argued successfully they should be allowed a free vote on a forthcoming Bill on hare coursing. Some of the Independents believe they should be similarly allowed a free vote on the abortion legislation, irrespective of the Attorney General's advice.

The Bill to be brought forward by Mick Wallace next week is identical to a Bill proposed by Independent TD Clare Daly to the last Dáil. Attorney General, Máire Whelan informed the then coalition government that Ms Daly's bill was unequivocally unconstitutional, in her opinion.

She told the government that allowing for abortion in cases of fatal foetal abnormality was clearly unconstitutional under the present anti-abortion article of the Constitution and therefore the government was obliged to block the legislation in the Dáil.

1983 referendum

Ms Whelan’s advice centred on the fact that, even where suffering from a condition incompatible with sustained life, a foetus may be capable of being born alive. In this instance, she told the government, “it is quite clear that article 40.3.3 is engaged”.

Article 40.3.3 was inserted into the constitution after the eighth amendment was passed in a referendum in 1983. It recognises the equal right to life of the unborn and the mother and has been criticised by pro-choice campaigners at home and some international organisations such as the United Nations. It remains the foundation of Ireland's strict anti-abortion laws.

Independent Ministers said last night that legislation on abortion was not covered by their agreement with Fine Gael. There are diverging views among the Independent Alliance's members.

The Cabinet has not yet discussed the private members’ Bill, and will not do so until its meeting next Tuesday. However, Government sources say that the Cabinet would have to oppose a Bill that the Attorney General has deemed unconstitutional.

“We can’t have a free vote on an unconstitutional Bill,” said one Minister.

Meanwhile, a Bill to repeal the eighth amendment was launched in Dublin by the Anti-Austerity Alliance-People Before Profit group yesterday and will be debated by the Dáil this autumn.

AAA-PBP TD Ruth Coppinger said their Bill is straightforward. It "calls for a referendum to be held to repeal the eighth amendment to the Constitution and allow the Dáil to then legislate for abortion services in Ireland".

The AAA-PBP launched the Bill at a press conference attended by representatives of other pro-choice groups. Ms Coppinger said that AAA TDs intend to move the first stage this week and place it in their next available private members’ time in the autumn.

She said the lead-in time before the Bill comes to the floor of the Dáil for debate would be used by activists to “lobby and pressure TDs” to support the measure.

Bríd Smith said the Taoiseach’s efforts to find a consensus on the issue through a citizen’s assembly were “nonsensical”.

“There isn’t a consensus on the eighth amendment. Either it’s repealed or it isn’t,” she said.

Pat Leahy

Pat Leahy

Pat Leahy is Political Editor of The Irish Times