In a sharp departure from the Oireachtas abortion committee, the Government has resurrected the Citizens’ Assembly’s primary recommendation that the Eighth Amendment should be repealed and replaced with a new text that expressly gives all authority to the Oireachtas to make law on abortion. The purpose of the new amendment would be to make it impossible for the Courts to strike down any legislation on the basis of any other article in the Constitution. However, the right to life would still be removed from the Constitution and the Oireachtas would be free to introduce a very permissive abortion regime if it so wished.

Speaking in the Dáil yesterday, the Taoiseach said the Government were considering this proposal even though it had been given short shrift by the Oireachtas committee examining the matter, and they have sought the advice of the Attorney General. He told Labour leader Brendan Howlin there were other rights in the Constitution and the Government was concerned that any subsequent legislation could be deemed unconstitutional because of those rights.

“We are awaiting advice from the Attorney General on that issue because we would find ourselves in a very strange position if we were to repeal the Eighth Amendment only to find that there were other rights to life in other parts of the Constitution that might make any legislation we would pass unconstitutional.”

He said that the Citizens’ Assembly and the all-party committee differed about whether there needed to be “an enabling provision or amendment which makes it clear that only the Oireachtas can make the law on this issue because there is another right to life in the Constitution”. He added: “There are also rights to privacy, children’s rights and rights to bodily autonomy. We need to consider the possibility – and we have sought the Attorney General’s advice on this – that the Citizens’ Assembly may have been correct in suggesting that an enabling amendment will also be needed.”