A member of the Oireachtas Committee on abortion doubts whether a major recommendation of the Citizens’ Assembly would pass in a referendum, while a leading member of the Repeal lobby has argued publicly against adopting the same recommendation. In June, the Assembly recommended not only that the Eighth amendment should be repealed in full, but that it should be replaced with a clause that “explicitly authorises the Oireachtas to legislate to address termination of pregnancy,
Speaking at the abortion committee last Wednesday Justice Mary Laffoy, who chaired the Citizens’ Assembly, said the idea of the new clause would be to immunise legislation from Constitutional challenge in the Courts and thereby bring certainty to the law. The clause would also free the Oireachtas to legislate precisely as they wish, without being limited by any implicit Constitutional protections for the unborn.
In effect, this means that the legislature would be made sovereign in matters of abortion law, and not subject to the Courts or the Constitution.
After the meeting, some TDs and senators on the 21-person committee said they now feared voters would reject the referendum, which is due to be held before next summer. A TD who did not wish to be named, for fear of alarming his party, told the Sunday Times he doubted “voters would take that leap of faith after [they rejected] the Oireachtas inquiries referendum” in 2011. He also questioned what the implications would be for the president’s right to refer new legislation to the Supreme Court.
Kate O’Connell, a Fine Gael member of the committee, said she believes Laffoy’s analysis is right, “because if a referendum happens and succeeds, we don’t want a challenge in the courts a few weeks afterwards”. However, she cautioned against drawing a conclusion until other Constitutional experts are heard. Meanwhile, Ailbhe Smyth, convener of the Coalition to Repeal the Eighth Amendment, said her organisation is opposed to inserting a substitute clause in the constitution if article 40.3.3 is repealed. “I can’t see the value or the point of a specific instruction in the constitution to tell the legislature to legislate,” Smyth said.