Government fears legal challenges after repeal of Eighth Amendment

The Government fears a straight repeal of the Eighth Amendment could lead to legal challenges and is likely to propose the insertion of a new provision in the Constitution which would enable the Oireachtas to legislate for abortion.

Although no final decision has been made, Ministers have been told the advice of the Attorney General is likely to recommend a new provision to replace article 40.3.3 that would give the Oireachtas the sole right to make the law on abortion.

Article 40.3.3 was inserted into the Constitution after a referendum in 1983. It guarantees to protect as far as practicable the equal right to life of the unborn and the mother, thereby prohibiting abortion almost all cases.

The Oireachtas Committee on the Eighth Amendment has recommended that abortion be allowed up to the 12th week of pregnancy, as well as when a mother's life or health is at risk. The Government says it will hold a referendum to decide this later this year; before that can happen, TDs and Senators must vote in favour of repealing the Eighth Amendment. You can check how each Oireachtas member is likely to vote here: irishtimes.com/news/politics/referendum-tracker.

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There is concern that simply deleting the article would leave open the possibility of legal challenges from both anti-abortion and pro-choice campaigners in the future.

Sources say legal challenges could seek to discover additional rights for the unborn in the Constitution or seek wider access to abortion under the right to privacy or bodily autonomy.

A provision in the Constitution reserving to the Oireachtas the right to make the law in this area is now likely, senior sources believe.

This is the approach that was suggested by the Citizens’ Assembly, though the Oireachtas Committee disagreed and recommended a straight repeal of article 40.3.3.

‘Further reassurance’

According to sources with knowledge of the discussion in Government, a new constitutional provision may be needed to provide “further reassurance” to voters. Sources said that while the legal advice had yet to be finalised, it was likely to recommend a “belt and braces” approach.

The Government will insist, however, that it is not replacing the Eighth Amendment. “This is effectively repeal,” one senior source said.

The Dáil debated the report of the Oireachtas Committee on the Eighth Amendment for more than three hours last night.

Opening the debate for the Government, Minister for Health Simon Harris appealed for a respectful debate in the referendum campaign to come, claiming name-calling and pigeonholing would only polarise and divide.

Mr Harris pointed to the consumption of abortion pills purchased over the internet as a development legislators had to take account.

"Research shows a 62 per cent increase in the number of women from Ireland contacting one online provider over a five-year period, from 548 in 2010 to 1438 in 2015. And that's just one provider," Mr Harris said.

“Can we just pause and picture what this is telling us? Is it acceptable to any of us that women are once again left in a lonely and scary place sending off for a pill to be sent through the post instead of being able to access the medical advice and support they need?

“This is happening in Ireland today. . . If it is the sad reality that we have been exporting this issue, are we now accepting that women must import their own solutions?”

Fianna Fáil leader

Meanwhile, Fianna Fáil leader Micheál Martin told his parliamentary party he was strongly in favour of a referendum on the Eighth Amendment.

Members of the Oireachtas committee gave a presentation to the meeting, which lasted more than three hours, explaining how it reached the decisions.

Mr Martin urged TDs to allow people have to their say on the matter and spoke of how former taoiseach Éamon de Valera had designed the Constitution to allow for the involvement of people.

Referencing his own personal view, Mr Martin said he was reading the report and the submissions made to the Oireachtas committee before commenting publicly.