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Tuesday 28 November 2023 Dublin: 5°C
Taoiseach Leo Varadkar and Health Minister Simon Harris.
Abortion Referendum

This is the advice that convinced the Cabinet to seek the 'repeal and replace' option

A summary of the Attorney General’s advice has been published.

A SUMMARY OF the Attorney General’s advice to government as to why it should opt for a repeal of the Eighth Amendment, with the inclusion of an enabling clause giving the Oireachtas the power to legislate, has been published.

The Department of Health prepared an information note for publication in order to explain the legal reasons that informed its approach.

Legal advice from the Attorney General is privileged, but there have been calls for the full advice to be placed in the public domain.

Taoiseach Leo Varadkar told the Dáil today that the summary note should be sufficient, explaining that it is rather unprecedented for such details to be published.

Opposition leaders are currently being briefed on the Attorney General’s advice.

The government announced yesterday that it has decided to hold a referendum on Ireland’s abortion laws by the end of May.

6639 Seamus_90514877 Sam Boal The Attorney General Seamus Woulfe with President Michael D Higgins. Sam Boal

Rather than adopting the recommendation from the Oireachtas Committee on the Eighth Amendment to have a straight repeal or “repeal simpliciter”, the government opted for an enabling clause to be included in the Constitution giving the Oireachtas the power to legislate on abortion.

No certainty

The note states that the Attorney General, Seamus Woulfe, advised the Health Minister Simon Harris that there is no absolute certainty about the post-repeal landscape of rights.

If Article 40.3.3 was repealed outright, it might subsequently be argued before the courts that the unborn have residual rights arising under other Articles of the Constitution, stated the Attorney General – who highlighted that this could continue to restrict the power of the Oireachtas to legislate on the issue.

To mitigate the uncertainty that might arise in such circumstances, the Attorney General advised that consideration should be given to inserting wording into the Constitution that expressly affirms the right of the Oireachtas to legislate for the regulation of termination of pregnancy.

The summary note states that this approach “would have the advantage of making it clear, through express words, that the Oireachtas has power to legislate on the subject of the termination of pregnancy”.

It adds:

If the amendment is adopted by the people, the Oireachtas would have an express power to legislate to regulate termination of pregnancy as it considers appropriate, in the same way as it legislates in every other area of policy.
The insertion of the additional wording would bring greater constitutional certainty to the primary authority of the Oireachtas to make laws in this area, dealing with controversial social and medical matters.

Taoiseach’s viewpoint

Last night, the Taoiseach outlined his view on the issue, stating that he would be campaigning for a repeal of the Eighth Amendment.

With Varadkar making his opinion known, all eyes are now on other ministers to outline their position.

Education Minister Richard Bruton is amongst those Cabinet ministers who support both a repeal of the Eighth Amendment and subsequent legislation which will allow for the termination of pregnancies up to 12 weeks.

He let his views be known for the first time during an interview with RTÉ’s Drivetime this evening.

He said that it is “time we consider” the current arrangements and repeal the controversial amendment.

He also confirmed that he would support the legislation that is being drafted by his colleague Simon Harris.

Following last night’s referendum announcement, concerns have been raised about the proposed legislation, particularly the provision of the 12-week time period for unrestricted access to an abortion.

Court challenges 

The Attorney General’s advice warns that any legislation introduced (which would only happen if the referendum is passed) could face court challenges.

It states that following the removal of the Eighth Amendment, new laws, such as providing the provision for unrestricted access to abortion up to 12 weeks would “remain subject to review by the courts like any other legislation”.

“While no approach can be completely free from the risk of legal challenge” the
Attorney General advises that the approach recommended is likely to be “a
legally safer option than a simple repeal”.

Tánaiste Simon Coveney has outlined that while he supports the repeal of the amendment from the Constitution, he believes the 12-week period in the proposed legislation goes too far.

It is understood that a number of other ministers raised concerns about the 12-week provision during yesterday’s four-hour long special Cabinet meeting.

Politicians must give clarity

Labour’s Joan Burton has said that politicians that support the repeal of the Eighth Amendment but who are opposed to the 12-week unrestricted access to abortion must outline the alternative during the course of the debate.

Labour Eighth Amendment Labour Party representatives from the Committee on the Eighth Amendment of the Constitution (l to r) Joan Burton TD, Jan O'Sullivan TD and Senator Ivana Bacik.

Speaking to the reporters today, Burton said:

“I think it would be helpful if over the course of the campaign they were able to explain.”

Labour’s Jan O’Sullivan said the repeal question is the most important question, and urged those with concerns to “inform” themselves as to why the 12-week recommendation was put forward by the Oireachtas Committee.

She said that ultimately, politicians are elected to legislate.

Questions have been raised as to whether the 12-week time period could be watered down. However, senior government sources have ruled out suggestions that the proposed legislation could be altered to include a lower time period.

However, others point out that amendments could be made when the legislation is debated.

“It will be fully debated and people will have a chance to propose amendments,” said Bruton.

Challenge facing campaigners

One of the ministers who is understood to have spoken about the three-month time period during last night’s Cabinet meeting is Housing Minister Eoghan Murphy. When asked about it today, he said that he was precluded from talking about what was said at Cabinet.

0047 Home Building Finance Press_90535651 Minister for Finance and Public Expenditure and Reform, Paschal Donohoe TD and Minister for Housing, Planning and Local Government, Eoghan Murphy

He clarified, however, that his is favour of repealing of the Eighth Amendment and supports unrestricted access to abortion up to 12 weeks.

Finance Minister Paschal Donohoe said a referendum is “long overdue”. He added that whatever difficulties politicians faced in coming to their decision, it paled in comparison to what women in Ireland have faced for decades.

Read: Abortion referendum proposed for May, but 12-week law goes too far for Coveney>

Read: ‘We’re asking people to trust women’: Repeal referendum to be held before the end of May>

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