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Q&A: Can the proposed legislation allowing abortion up to 12 weeks be changed in the future?

Many of our readers had questions about the legislative process, and trusting politicians.

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In our Q&A: Eighth Amendment Referendum series, we are answering questions our readers have submitted in relation to the upcoming vote on 25 May.

THE QUESTION

Many of our readers asked about the role of politicians if the Eighth Amendment is repealed. Some of those queries were: 

  • Can the legislation for legal abortion that will follow if the repeal occurs be changed in the future by future governments?
  • My concern is that if passed we are removing this issue from our constitution and giving full power to politicians! They can increase the limit from 12 weeks to whatever they like in the future. Why wasn’t the 12 week limit inserted into the constitution to avoid this possibility?
  • Are we obliged to follow the findings in the Oireachtas report after the referendum or is it likely that the politicians will offer alternative controls if the 8th is repealed?
  • If the 8th is repealed, Is it POSSIBLE that the 12 week unrestricted time limit can be extended (in the future for example under a future government) without a public vote or without the public having a say?

THE ANSWER

If the referendum is passed on 25 May, the Thirty-Sixth Amendment of the Constitution Bill 2018 will allow repealing (removing) Article 40.3.3 and replacing it with this line:

Provision may be made by law for the regulation of termination of pregnancies.

This means that the Oireachtas can legislate for the termination of pregnancies, and paves the way for legislation to be drafted regarding abortion which wouldn’t be affected by the Constitution.

Currently, any laws on abortion have had to be interpreted with regard to the Eighth Amendment, in order to be found constitutional.

In short:

If the public vote to repeal the Eighth Amendment from the Constitution it will be removed, and politicians will then be given the power to legislate to regulate abortion in Ireland.

Ahead of the referendum date, the government has published draft legislation (known as the General Scheme of a Bill to Regulate the Terminations of Pregnancy) that it wishes to introduce to the Dáil if the referendum passes.

Just like any other Bill, the legislation will have to pass all the normal processes involved in a Bill becoming a law. But before we delve into that aspect, let’s take a look at the draft Bill.

As it stands, the draft legislation deals with allowing abortion up to 12 weeks, and also in specific circumstances, up to 24 weeks or viability.

In the case of a Yes vote, and if both Houses of the Oireachtas (the Dáil and the Seanad) pass the legislation in its current form, then that is what will be introduced in the months ahead.

What does the Bill say about time limits?

Head 7 of the proposed legislation mentions the 12-week time limit. It states:

7. (1) It shall be lawful to carry out a termination of pregnancy in accordance with this Head where a medical practitioner certifies, that in his or her reasonable opinion formed in good faith, the pregnancy concerned has not exceeded 12 weeks of pregnancy.
(2) It shall be necessary for 72 hours to elapse between the time of the certification referred to in subhead (1) and the termination of pregnancy being carried out.
(3) The medical practitioner referred to in subhead (1) shall make such arrangements as he or she shall deem to be necessary for the carrying out of the termination of pregnancy as soon as may be after the period referred to in subhead (2) has elapsed but before the pregnancy has exceeded 12 weeks of pregnancy.
(4) For the purposes of this Head, ―12 weeks of pregnancy‖ shall be construed in accordance with the medical principle that pregnancy is dated from the first day of a woman’s last menstrual period.

Head 4 of the Bill deals with when abortion would be allowed in Ireland past 12 weeks.

It states:

It shall be lawful to carry out a termination of pregnancy in accordance with this Head where two medical practitioners certify that, in their reasonable opinion formed in good faith:

  • there is a risk to the life of, or serious harm to the health of, the pregnant woman,
  • the foetus has not reached viability, and
  • it is appropriate to carry out the termination of pregnancy in order to avert that risk.

Of the two medical practitioners, one would be an obstetrician. The second would be a practitioner appropriate to the situation.

The two doctors would have to agree that all three of the above conditions were being met.

If the people vote no, the draft legislation will have no use and be scrapped as the Eighth Amendment will continue to prohibit abortion (except in the cases where abortion is already permitted under the Protection of Life during Pregnancy Act which allows for abortion in cases where pregnancy endangers a woman’s life, including through a risk of suicide).

This was passed into law in 2013.

If the vote to repeal the Eighth Amendment is passed, this law will remain in place until any new legislation is introduced.

Is the Bill to regulate the termination of pregnancy just like any other piece of proposed legislation

Yes, the draft Bill is just like any other piece of legislation. It’s not special and, therefore, will have to go through the same process. So, what is that?

There are various stages and scrutiny that legislation tends to go through before it actually becomes the law of the land.

Generally speaking, a Bill needs to be approved by all three organs of the Oireachtas before it can become law. Those three are the Dáil, the Seanad and the President.

Government sources believe it will probably be subject to pre-legislative scrutiny before an Oireachtas committee as well.

Pre-legislative scrutiny (PLS) is where parliament, through its committees, scrutinises draft legislation (General Schemes) and reports back to government before a final version of the bill is drafted.

The parliamentary procedure was formally introduced in Ireland in November 2013. As a result, ministers are now required to forward the General Scheme of a Bill to the relevant Oireachtas Joint Committee for possible scrutiny. If they do not, they have to give specific reasons as to why they are not doing so.

The Bill to Regulate the Termination of Pregnancy will then be introduced into the Dáil. If passed through that stage, it will be discussed in the Seanad.

The Bill, like any other, will go through the five phases involved in having legislation cleared by either of the Houses.

The first phase is, typically enough, called First Stage. This is ceremonial and does not involve any debate or general critiques – it’s simply a case of the TD standing up and requesting leave to introduce the Bill.

It’s Second Stage where the real discussion takes place.

Second Stage is the general debate on the Bill, where TDs of all sides are able to contribute and generally discuss whether the idea is a good or a bad thing. This is where discussion around this Bill is likely to get heated as some TDs will state whether they agree or disagree with it.

When everyone has had their say – or, more usually, when the time allotted for the debate has run out – it’s only then that the Bill will be voted on for the first time.

It’s at this stage that many Bills get voted down, but as this is a government Bill, it is unlikely to be the case. (We’ll run you through the numbers later.)

If passed, it will go on to the third stage – which is actually called Committee Stage.

This is where there is detailed consideration of the Bill, section by section. It can be discussed by the whole House at Committee Stage or at select committee, like the Oireachtas Health Committee.

Committee stage, more vitally, is also where amendments can be proposed for the first time. At this stage, there will be a vote on each individual amendment, but also on whether each individual section of the Bill should actually be included.

This is where TDs, if they disagree with aspects of the draft legislation, can seek to change it by putting down an amendment.

It’s this stage that relates to the above question as to whether the draft legislation in its current form can change.

Committee Stage is when genuine and legitimate changes can be made. The government members of the committee (who are always in the majority) in most cases carry the votes, and vote down amendments it disapproves of.

Will the parties support the draft legislation or seek to amend it?

It must be noted that Fine Gael will support its own legislation, and despite the Fianna Fáil party being split on the issue of abortion (and allowing a free vote on the repeal of the Eighth Amendment as well as the legislation to follow), leader Micheál Martin said last week that he believed his party would support legislation allowing unrestricted abortion up to 12 weeks if the referendum passes.

Sinn Féin is due to have a special Ard Fheis on the issue after the referendum vote. Currently, the party’s position is to first focus on backing the repeal of the Eighth Amendment.

Its position on the draft legislation, and the contentious 12 weeks issue, is to be determined in June. However, the party leader Mary Lou McDonald has made it clear that she backs the draft legislation in its current form.

So we’ll know more about whether Sinn Féin members will back the legislation as it stands after members discuss and vote on the matter.

Sources within both Fine Gael and Fianna Fáil have said it’s unlikely that in the event of the referendum passing, any major amendments to the legislation would be tabled by its members.

The Fianna Fáil leader told TheJournal.ie that even those in the party who back a No vote have indicated they will respect the vote of the people and not seek substantial changes to the legislation. He explained that it was essentially the proposed law the people had in their hands when they went to vote and is the law they expected to be introduced in the event of a Yes vote.

At this point – when all amendments have been dealt with – there’s one final vote on whether to progress it to the fourth phase, and to send it back to the Dáil as a whole.

Once the Bill, as it looks by now, has been approved by the Dáil, it then goes to the Seanad to do the same thing all over again.

Having been approved by the Dáil and Seanad, there’s only one part left. Simply, it needs to be signed by the President.

What’s most likely to happen? 

As stated earlier, as this is a government Bill, it will likely pass. Fine Gael enjoys support on the matter from the likes of Labour, the Social Democrats, People Before Profit, the Green Party, Solidarity and the Independents 4 Change.

Therefore, it’s expected the draft legislation will be approved, albeit with some minor changes (which occur in many Bills).

But, as you’ll know by now, Fine Gael rely on Fianna Fáil to provide support as part of the Confidence and Supply Agreement. That could complicate matters… but probably only for the party itself.

It will be interesting to see if any TDs in Fianna Fáil and Fine Gael dissent from their party’s position.

Sinn Féin leader Mary Lou McDonald for instance has not removed any TDs for campaigning against her party’s position to repeal the Eighth Amendment. However, she has been clear that any TD that votes against legislation or policy the party supports will face consequences.

The next question is timescale.

There is no exact date for when the law would be put on the Statute books.

The amount of time it takes for a law to pass through the Oireachtas varies. We do know, however, that Minister for Health Simon Harris has said that he hopes legislation would be in place by the end of 2018 if the referendum passes.

With some TDs already filibustering to prevent drink-driving legislation progressing through the Dáil, something similar could be done to slow down this Bill.

With the referendum vote being held on 25 May, and the Dáil due to rise in June, there is not a lot of time. The process will most likely be dragged into the autumn. However, with the threat of an election hanging over parties, it would be a huge blow to momentum if that was to delay the passage of legislation.

If the referendum passes, and both Houses of the Oireachtas approve the legislation that will follow, when the new law will actually kick into effect is unknown.

Okay, say it is passed, can it be changed later on by other governments?

Yes, any piece of legislation can be amended and changed by the government of the day.

 

This could mean any future laws could be more restrictive, or less restrictive, depending on political and public appetite.

There may also be changes due to medical advancements. Dr Peter Boylan has said previously that foetal viability (which is the viability to survive outside the womb once a baby is born) is currently around about 23 or 24 weeks. However, he pointed out that viability has moved back from 28 weeks when he was training to 23 or 24 weeks.

The advantage of legislation over that of the Eighth Amendment, according to Dr Boylan, is “flexibility” – essentially, that it can change.

Therefore if we have legislation in place, and medical advances come about, the government can reduce the time limit (which the draft legislation states is 12 weeks) by which an abortion would be legal.

The same could be said if a government was in place that wanted to extend the time limit, or change the protocol in any other respect. If that was the case, amendments to the legislation would have to go through the same processes as described above, from First Stage to being signed by the President.

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