Noel Whelan: Simple repeal of Eighth carries risks
Provision for Oireachtas to make laws about abortion could curb possible challenges
We are at a point now where the Government is set to propose a referendum to repeal the Eighth Amendment and it is clear also that there is an Oireachtas majority to legislate for such a referendum to be held. Much of the debate from here on will be about what the legislative provision for abortion should be – when and if that referendum passes.
Before that, however, another complex legal question has come centre stage in Cabinet and will be centre stage shortly in the parliamentary and public debate. That question is whether the referendum is to propose a mere deletion of article 40.3.3 inserted by the Eighth Amendment or whether it is necessary or appropriate to insert into that space a sentence or two expressly giving the Oireachtas the power to legislate for abortion provision.
As Pat Leahy and Sarah Bardon reported on the front page of this newspaper on Thursday, the Government appears inclined to the latter view and Attorney General Séamus Woulfe has cautioned that merely deleting the Eighth Amendment without putting in a specific provision enabling the Oireachtas to make law about abortion provision runs the risk of subsequent court challenges to the constitutionality of whatever legislation is enacted after (and if) a referendum is passed.
Lawyers differ on whether such an enabling provision is necessary. Having heard in public session from a number of lawyers, the Citizens' Assembly recommends that an enabling provision should be inserted. The Oireachtas Committee on the Eighth Amendment also heard from lawyers in public session and had the benefit of private legal advice from a Senior Counsel before it decided that no such enabling provision was required.
Last March, the Citizens' Assembly held a session entitled “Legal Consequences of Retention, Repeal, or Amendment of Article 40.3.3”. This full session, like all those of the Citizens Assembly, is on YouTube.
The presentation by Brian Murray SC is particularly instructive on this question. Senior Counsel don’t necessarily make for the liveliest of YouTubers but Murray is one of the Law Library’s sharpest minds and most able communicators. His presentation deserves a wider airing than the 985 views it has had to date. Revisiting what he had to say then would be 37 minutes well-spent now by both politicians and commentators dealing with this issue over the next few weeks.
There were three bodies of legal opinion about how the courts in the future were likely to deal with challenges to legislation on abortion if the Eighth Amendment was to be repealed without an enabling provision being inserted into the Constitution
Summarising Murray’s presentation would be impossible in the space available here and risks simplification. He did set out, however, that there were three bodies of legal opinion about how the courts in the future were likely to deal with challenges to legislation on abortion if the Eighth Amendment was to be repealed without an enabling provision being inserted into the Constitution.
The first view is that the courts would hold that the content of legislation on abortion would be exclusively a matter for the Oireachtas. On this view, the people in voting to delete the Eighth Amendment decided they wanted decisions about the extent of future abortion provision to be made not in the Constitution but by their elected representatives and the courts must allow the Oireachtas a broad remit in deciding how to do that.
It would limit the right of the Oireachtas to make abortion lawful in a wide sense and the courts themselves might seek to engage in a balancing exercise
The second view is that even if the express right to life of the unborn in article 40.3.2 was deleted, the implied rights of the unborn which existed in the Constitution before the 1983 amendment would survive. The consequences of the courts taking such a view, Murray said, would be would be “most uncertain”. It would limit the right of the Oireachtas to make abortion lawful in a wide sense and the courts themselves might seek to engage in a balancing exercise between the circumstances in which abortion may be necessary and those implied rights.
Life of unborn
The third view is that, since in article 40.3.3 there is an express right to life of the unborn, the consequence of a referendum deleting that provision is that the rights to privacy, autonomy and bodily integrity of the women would prevail and that the Oireachtas would not be entitled at all to restrict abortion in very limited circumstances.
Murray himself offered the view that the first of the scenarios was the most likely but emphasised that that was his personal legal view.
There is a considerable body of opinion among practising and academic constitutional lawyers and even privately among some judges that the third scenario set out by Murray is arguable. It is a minority legal view but it is not a fringe view.
The Cabinet is alive to the political risks which arise from this complexity. Those who oppose repeal will seek to exploit any legal uncertainty to suggest that only retention of article 40.3.3 can ensure any protection for the unborn. There is much room for political mischief-making in such confusion.
Putting in an express provision that the Oireachtas have full power to decide on the scope of permissible abortion after repeal has considerable legal and political merit.