A prominent legal academic has said that a requirement in the Government’s proposed abortion legislation that hospitals must carry out abortions regardless of their religious ethos may not be in accord with the Irish Constitution.

Professor Gerry Whyte of Trinity College Dublin, a leading expert in Constitutional law, said that Head 12 of the Government’s Protection of Life During Pregnancy Bill 2013 may not be compatible with Article 44.2.5 of the Constitution.

Article 44.2.5 protects the right of religious denominations to maintain institutions for religious or charitable purposes.

He said: “I think it’s going to be very controversial because it means a Catholic hospital…..could be compelled to carry out abortions because the conscientious observer clause does not cover the institution.”

On Saturday, Minister for State for Health Alex White said he rejected the suggestion by the Catholic Primate of All Ireland, Cardinal Sean Brady that Head 12 of the proposed Bill amounted to a denial of religious freedoms and thought.

He said that publicly funded institutions such as hospitals “should not be in a position to stand in the way of the exercise of somebody else’s rights”.

Earlier, the Iona Institute said that the failure of the Government’s legislation to protect the conscience rights of institutions was “stunning” given the fact that several countries with liberal abortion laws allowed religious institutions to be exempt from providing abortions.

He said: “If we take Britain……although there is only one Catholic hospital, there is no question that they would be required to carry out an abortion. It can’t be beyond the Government to allow for an exemption that is common in other western countries.”

In 2010, the Parliamentary Assembly of the Council of Europe passed a resolution entitled ‘The right to conscientious objection in lawful medical care’.

Paragraph one of the resolution says that no institution should be forced to carry out abortions.

It reads: “No person, hospital or institution shall be coerced, held liable or discriminated against in any manner because of a refusal to perform, accommodate, assist or submit to an abortion, the performance of a human miscarriage, or euthanasia or any act which could cause the death of a human foetus or embryo, for any reason.”

Meanwhile, the Catholic bishops have rejected claims by the Taoiseach that there is a requirement to legislate to clarify the legal position on abortion.

Enda Kenny said it was his “duty and responsibility as head of Government to legislate in respect of what the people’s wishes are”.

However, the Catholic bishops made clear in a statement at the weekend their opposition to abortion legislation. “The heads of the Protection of Life during Pregnancy Bill 2013 published by the Government on Wednesday would, if approved, make the direct and intentional killing of unborn children lawful in Ireland, ” they said.

“The Bill, as outlined, represents a dramatic and morally unacceptable change to Irish law and is unnecessary to ensure that women receive the life-saving treatment they need during pregnancy.”

A spokeperson for the bishops said: “The Government is not obliged to legislate for the X case. The Irish Government was never directed to legislate for abortion.

“It does have to bring clarity to the situation and the bishops’ view . . . is that Medical Council guidelines need to be enhanced and/or consider a new referendum. The Government is not obliged by any internal or external authority to legislate.”