The Cabinet’s decision last night to propose a referendum to liberalise the State’s abortion regime is an important milestone in Irish society’s long, at times extremely difficult, discussion with itself on the subject.
The Eighth Amendment, which bans abortion in all but the most limited circumstances, no longer reflects the views of the Irish people. That has been clear from opinion polls that consistently show a public desire for change, and it has been clear from the steady flow of women leaving the State each year for a procedure they are denied at home. The so-called “pro-life amendment” did not stop abortion; it merely decreed that it should happen elsewhere. And happen it did. At least nine Irish women have travelled to Britain for terminations every day in recent years. Many others have used pills bought on the internet.
Up until recently, a widely held assumption was that the Government would attempt to introduce abortion in cases of rape, incest and fatal foetal conditions. That had emphatic public support, not least in the vital middle ground. But having identified practical difficulties in legislating for such a regime, the Oireachtas Committee on the Eighth Amendment instead recommended allowing abortion on request up to 12 weeks' gestation. That was decisive. Faced with a decision between a 12-week limit and retention of the status quo, and no doubt sensing a shift in public opinion, politicians have rowed in in large numbers behind the committee's suggestions.
Having agreed to that substantive reform, the Government had two options: it could propose straight repeal of article 40.3.3 or seek to replace it with a constitutional provision expressly empowering the Oireachtas to legislate on abortion. Last night the Cabinet opted for the latter.
Limiting the judiciary from reviewing a law by reference to constitutional rights, even if they would still have a role in interpreting that law in cases of dispute, would be a significant step that would warrant serious debate
On the face of it, such a provision is appealing. Its aim is to head off the risk of the courts striking down future abortion legislation (although in reality that risk is very low).
But this approach carries its own risks. Only in a small number of areas, such as emergency legislation or matters relating to the operation of the Houses of the Oireachtas, does the Constitution deny judges the power to intervene. Limiting the judiciary from reviewing a law by reference to constitutional rights, even if they would still have a role in interpreting that law in cases of dispute, would be a significant step that would warrant serious debate.
Taoiseach Leo Varadkar’s indication as to the wording last night was encouraging, and the Government must ensure that it does not hand opponents of the referendum reason to argue that the Oireachtas is attempting to side-step the separation of powers in any way.
A great deal hinges on the precise wording of the proposed amendment. The Government has to get it right.