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Explainer: What is Mick Wallace's abortion bill and why is it causing so much controversy?

And can it get passed?

This piece was originally posted on Tuesday, 5 July. It is being republished ahead of the vote on the bill. 

BY NOW YOU will be aware of controversy over a bill being put before the Dáil by independent TD Mick Wallace.

The bill is causing problems at cabinet level, at constitutional level and on either side of the abortion debate.

It goes to a vote in the Dáil today.

But what is it?

Let us fill you in.

The basics

File Photo Founder of the Jack & Jill Children's Foundation Jonathan Irwin described Mick Wallace as an Outie on the Joe Duffy radio show today. An outie is South African South African slang for a vagrant, a tramp. Source: Leah Farrell

The bill is a carbon copy of one introduced by Wallace’s Independents 4 Change colleague Clare Daly in the last Dáil.

It would amend the Protection of Life During Pregnancy Act to allow for abortions in the case of fatal foetal abnormalities.

The bill would provide for two suitably qualified medical professionals (an obstetrician and a perinatologist) to jointly certify in good faith that the foetus in question is suffering from a fatal foetal abnormality.

Currently, pregnant women given this diagnosis are given the option to carry the pregnancy to term or travel abroad for a termination.

If Wallace’s amendment was accepted, women would either be able to carry to term (or however long the pregnancy lasts) or ask for a termination in their Irish hospital.

Proponents of the bill have argued that it does not confer any new rights in relation to abortion, but merely clarifies existing rights. Wallace said the parameters of the bill are “very narrow” and do not cover disabilities of life-limiting illnesses, only foetuses which are incompatible with life.

However, the Attorney General Máire Whelan has said that the bill would be in contravention of Article 40.3.3 of the constitution and therefore unconstitutional.

Her opinion on the legislation has never been published, something that Wallace says has led to a complete lack of debate on it.

Constitutionality

7/6/2012 New High Court Judges Attorney General Máire Whelan Source: Mark Stedman/Photocall Ireland

The issue of constitutionality is not straightforward, however, with a group of barristers and law lectures writing a letter to the Irish Times in June 2013 saying it is possible to legislate for fatal foetal abnormalities without breaching or changing the constitution.

Cabinet problems

4/7/2016 North South Ministerial Council. Minister Source: RollingNews.ie

The makeup of the current government means that there is a government minister, Shane Ross, and a super-junior minister, Finian McGrath, who supported the original bill.

That has led to a split in the cabinet, with Taoiseach Enda Kenny saying that the whip system for voting does not extend to independent members of Cabinet.

Speaking to RTÉ’s Morning Ireland on Monday, Ross said he and McGrath would be joined in voting for the bill by junior minister John Halligan.

“It is our intention to vote for the bill. It is the view the Independent Alliance that on issues of conscience and issues of this sort that there should be a free vote.”

On this website Vincent Browne argued that the cabinet voting in conflict with each other would breach Article 28.4.2 of the constitution, which states:

The government shall meet and act as a collective authority and shall be collectively responsible for the Departments of State administered by the members of the government.

Moral arguments

File Photo: The 8th Amendment Set to Become the Bi Source: Mark Stedman

Beyond the split in Cabinet or the arguments on its legality, the bill concerns abortion, which is always highly contentious.

The Life Institute says the bill would mean “babies with severe disabilities could be legally considered as less than human”. Wallace argues that his bill does not mention disabilities, only abnormalities which mean a child would not survive outside the womb.

The Terminations For Medical Reasons group called on their supporters to get behind the bill by contacting their TD.

“We only have a very short window in which to let our TDs know that we want, no, DEMAND that they support this bill.”

The next steps

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Whether the bill would or would not impact the 8th Amendment is key to the argument.

The government and Attorney General say it will, but many legal professionals say it would not.

Wallace, for his part, says the bill would work within the constitution and would not require a referendum.

If it were to pass, it would not necessarily end or undermine the campaign to repeal the eighth amendment, but some on the fence on the issue might consider it a step far enough.

Then again, passing the bill is a tough ask. The same bill was voted down in the Dáil by 104 votes to 20 just 17 months ago and there’s little reason to believe that the attitudes of those in the Dáil has shifted significantly now.

However what has shifted is the makeup of the Dáil.

Fine Gael are against the bill but three government independents will vote against them.

Fianna Fáil will allow a free vote on the issue, with some votes expected to be behind the bill, but the party has shown little appetite to liberalise abortion laws.

Labour have indicated they will vote against the bill, as all but one member had done last year. The Green Party’s two TDs will vote for it. Sinn Féin is likely to support it along with the AAA-PBP.

With Fine Gael’s 50 and five independents, the bill needs attract between 24 and 30 of Fianna Fáil’s 43 TDs.

In the event that the bill doesn’t pass, it is likely to be repackaged and raised again before the end of the Dáil term.

A bill calling on the government to hold a referendum on the repeal of the Eighth Amendment was moved by Ruth Coppinger last week. It will be debated in the next 100 days.

The bill will be voted on today.

Read: The cabinet will talk about Mick Wallace’s abortion bill today

Read: Vincent Browne: If Shane Ross votes against the Cabinet on abortion, Enda Kenny should remove him

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