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'There’s a strong chance the Assembly won’t recommend repealing the Eighth Amendment outright'

The Assembly should recommend taking the issue out of the Constitution, allowing it to be regulated through legislation, writes Eoin Daly.

Eoin Daly Lecturer, constitutional law

AFTER MONTHS OF deliberations, the Citizens’ Assembly is due to vote soon on the fate of the Eighth Amendment.

Although public opinion has turned firmly against the Amendment, which effectively bans abortion in all but very limited circumstances, it seems there’s a strong chance the Assembly won’t recommend repealing it outright.

Instead, they may opt for a “compromise” solution, recommending the insertion of new rules on abortion directly into the Constitution.

There are a number of possibilities: such rules might enshrine exceptions based on the woman’s health, or relating to cases of rape or fatal foetal abnormality. Considering that it is very unusual for a Constitution – a “basic law” – to say anything specific about abortion, how has this come to pass?

Outright repeal too radical

Unfortunately, it seems a view has emerged which – quite wrongly – equates the cause of Repeal with the wholesale liberalisation of abortion law.

Many believe that, unless the Eighth Amendment is modified or replaced – so that the Constitution says something about abortion – we will end up with a “liberal” regime or “abortion on demand”, whatever that means.

Therefore, politicians and commentators tend to assume that outright repeal would be a radical step.

And faced with two apparent extremes – retention of the Eighth versus outright repeal – who can resist the allure of “compromise”? We assume, after all, that “balance” is a virtue in politics.

What would a repeal mean in practice?

But this stems from a misunderstanding about what repeal would actually mean in practice. Far from being radical, repealing the Eighth is actually a very modest demand.

What many commentators have failed to grasp is that repeal would not, in itself, actually legalise abortion.

The 2013 legislation, which prohibits abortion except where there is a “real and substantial” risk to the mother’s life, would still remain in force until such time as the Oireachtas might change it.

Repeal in itself would not, then, directly change the legal rules concerning the availability of abortions. Instead, it would only free up the Oireachtas to change the existing, very strict legislation.

It was always a terrible idea to address abortion using the Constitution

Whatever one’s views on abortion, it was always a terrible idea to address the issue using the Constitution. A Constitution, as a very particular kind of law, is only meant to contain the fundamental principles based on which the State operates.

By its nature – and because it is quite hard to change – it can’t include the level of detail that’s necessary to address complex social issues such as abortion.

And when we enshrine vague principles – such as the “equal rights to life” of the “mother” and the “unborn” – this leaves a pall of doubt and uncertainty about what they mean in practice, leaving this to be cleared up, reluctantly, by judges who are understandably loath to take over the role of law-making.

In the original debate on the amendment, Mary Robinson correctly predicted that the vague wording that was being inserted into the Constitution would lead to unforeseen and chaotic circumstances, including injunctions against crisis pregnancy counselling.

This kind of constitutional content stifles normal law-making

The Oireachtas hesitates to legislate because it is so uncertain what vague formulas like “equal rights” actually mean in reality. The result is indecisiveness, uncertainty and endless political procrastination.

Indeed, the idea of bringing the abortion issue into the Constitution was, originally, the pet project of fringe Catholic grassroots groups in the early 1980s, based on a paranoid fear of abortion being legalised by the Courts. But, somehow, we have gotten used to this idea that abortion must be regulated, in some form, in our Constitution. We have allowed a fringe extremist view to become our common sense.

With that in mind, the Assembly should hold its nerve and recommend outright “repeal”. Inserting new, less draconian restrictions on abortion into the Constitution would repeat the mistakes of the past because, whatever is put in, we would likely be stuck with it for another generation at least.

Because that is how constitutions work – they enshrine only the fundamentals, and cannot be revised very easily.

Take the issue out of the Constitution

If the Assembly were to write in a new “compromise” position, this would be very difficult to change in the future because of the need for a new referendum even for minor changes. When legislating, the Oireachtas would still be hemmed in by another vague formula, second-guessing the Courts at every step.

Instead, the Assembly should recommend taking the issue out of the Constitution, allowing it to be regulated through legislation, just like in almost every other country in the world.

Putting the issue into the Constitution in the first place distorted our law-making process and made it very difficult to achieve even minor change. The Assembly, if nothing else, should take the chance to restore normal processes of democratic decision-making by correcting the mistake that was made in 1983.

Eoin Daly is a lecturer in the School of Law, NUI Galway, specialising in constitutional law, administrative law and legal theory. He is author of Religion, Law and the Irish State and Rousseau’s Constitutionalism, and is co-author of The Political Theory of the Irish Constitution.

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About the author:

Eoin Daly  / Lecturer, constitutional law

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