Major doubts surround the “enabling provision” to replace 8th amendment

The big reveal this week in abortion politics is not that we would finally have a referendum to repeal the Eighth amendment, but rather that another provision would replace it. Yet, by the end of the week, we are no closer to knowing exactly what that text might be or what it is meant to accomplish. The original impetus for the idea came from the Citizens’ Assembly which recommended it last April. While their intention was not entirely clear, legal Scholar, Prof David Kenny of TCD, described it as an immunising provision that would exclude judicial review of legislation so that it could not be found unconstitutional by the courts. It was a radical proposal as it would exclude all constitutional limits and judicial oversight of abortion legislation. For this one area of law, it would interrupt the normal separation of powers and the ordinary distribution of democratic checks and balances.

The Oireachtas committee set up to turn the Assembly’s recommendations into practical proposals, however, ditched this idea and recommended instead that a referendum would simply repeal article 40.3.3 and replace it with nothing.

This week, the Government announced that it rejected the Committee’s central recommendation and will instead put a replacement text on the referendum ballot. They also rejected the Citizens’ Assembly’s recommendation of an enabling provision to “immunise” legislation from judicial review. While both the Taoiseach in his press conference Monday night, and the advice of the AG published on Tuesday, suggested that the enabling provision they proposed would avert the possibility of abortion legislation being found unconstitutional, both also said that the provision would not “immunise” legislation from judicial review. But it is hard to see how the former could be accomplished, without use of the latter. As Prof. Oran Doyle of TCD put it on RTE Radio’s Drivetime, the Government want to make it more difficult, but not so difficult as to be impossible, for legislation to be found unconstitutional. A task requiring a Solomon-like, deft touch of legislative craftsmanship, no doubt.

Yet, the wording given by the Taoiseach, and echoed in the AG’s advice, that “Provision may be made by law for the regulation of the termination of pregnancies”, does not seem to accomplish that task. Indeed, its not clear that it accomplishes anything at all. Even the AG’s advice says it is already within the ordinary power of the Oireachtas to legislate on any matter, and this provision would simply affirm that this ordinary power includes the power to legislate in the area of abortion—it would not add any extra or special authority to the legislature. Indeed, various legal scholars were scratching their heads the following day as to what the replacement text would accomplish. One prominent scholar involved in the Repeal campaign surmised that the provision excluded only one single thing: the idea that the legislature could not make any law on abortion, but not that any particular bill might be more or less likely to be constitutional.

By Thursday, however, another twist in the story appeared. There is a legal case that has been proceeding through the court system over the last two years. In the High Court, it was judged that the unborn enjoys a host of childrens rights that are implied in law. This means that, even if article 40.3.3 were deleted, the courts might find that implicit rights of the unborn could still limit or outright invalidate abortion legislation. The State have appealed the case to the Supreme Court, in order to overturn it, so as to give them a free run to repeal the 8th and legislate freely for abortion.  The Court, however, will not hear the case until Feb. 22nd at the earliest, and they might still take weeks or months before issuing a judgement. Now Government Ministers have admitted to the Irish Times that the wording of the “enabling provision” will not be finalised until after the Court’s judgment in that case. This means the wording offered to us might yet change substantially, and the purpose of the provision might yet become one that explicitly “immunises” legislation from judicial review. If that were to pass, then it would open up a whole host of difficult constitutional problems for the proposal, such that even some pro-choice people might be inclined to reject the replacement proposal. Indeed, just last week the Minister for Children, Katherine Zappone, said she would reject an “immunising” provision.

The other consequence of this wait for the Supreme Court’s ruling is that it could push back the earliest date on which a referendum could be held. The Government want to introduce a referendum bill to the Dáil on March 8th, but if the Supreme Court have not made their ruling by then, the bill will be delayed. Any delay of more than a few weeks would make it impossible to hold the vote before students start leaving the country for the summer. This would result in the referendum being postponed until after the summer, and also, therefore, until after Pope Francis visits Dublin in August—an event that is sure to buoy the ranks and enthusiasm of pro-life voters.

Even if the worst case scenario does not come to pass for the Government, if the Supreme Court ruling comes down quickly and it grants the State’s appeal, nonetheless, this series of events highlights the unseemly rush of the Government to get a referendum passed so that they may legislate for abortion. There is also certain irony in members of the Oireachtas committee touting their knowledge and experience in support of their legislative proposal, even as the Attorney General and the Government reject their main recommendation for replacing the Eighth amendment. There is also an irony in the numerous politicians, including Mr Varadkar and Micheál Martin of Fianna Fáil, pointing to the work of the Committee in changing their mind on abortion, and yet giving short shrift to their main proposal.

The Government set out their stall this week, but it is not quite clear, it is not set in stone, and it is not what the Oireachtas Committee or the Citizens’ Assembly recommended, or what Repeal campaigners actually wanted. Much might still change.