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Citizens' Assembly told repealing the Eighth doesn't necessarily mean a right to abortion

This weekend’s two-day session has been lengthened to accommodate a hefty work programme.

Justice Mary Laffoy is the chair of the assembly.
Justice Mary Laffoy is the chair of the assembly.
Image: Sam Boal

Updated 1.20pm

THE CITIZENS’ ASSEMBLY have been given a legal opinion on a number of scenarios that could occur if the Eighth Amendment is repealed or if it is amended.

Speaking this afternoon on the penultimate weekend of the assembly’s deliberations on Ireland’s abortion regime, Brian Murray SC laid out what he felt would happen in a number of scenarios.

Pointing out that it was not his role to sway the members in either direction, Murray said he felt that members had three ‘possible options’ when it comes to their ultimate recommendation.

These options he felt were to retain, repeal or amend the Eighth Amendment.

In the case of retaining, he said the situation as it stands would remain.

Repeal the Eighth

If it were repealed and not replaced, he felt there would be three possible interpretations of the legal situation that would follow.

The first he said was the Oireachtas would be given “free rein” to legislate for Ireland’s abortion regime.

“The Oireachtas would become the sole judge of whether and in what circumstances, legislation should permit abortion,” he said.

In the second interpretation, he said that the legal view may be that the situation returns to the pre-1983 position where the unborn had “implied rights under the Constitution” rather having them expressly included.

He says this situation may limit the right of the Oireachtas to legislate freely to make abortion lawful as such laws may be challenged in the courts.

murray 4 Brian Murray SC speaking at today's Citizens' Assembly Source: CitizensAssembly.ie

In the third interpretation, Murray said that the removal of the protection of the unborn would mean that a woman’s right to bodily integrity and autonomy “would now prevail over many countervailing circumstances.”

In effect it would give a woman the right to “decide if and when to have an abortion.”


In the case of amending the Eighth Amendment, Murray presented the members with a number of potential options.

They are:

  • Amend so as to increase constitutional protection given to the unborn.
  • Amend so as to allow more freedom to the Oireachtas to permit abortion but only in defined circumstances.
  • Amend so as to expressly remove the right to life of the unborn.
  • To state that the Oireachtas shall have full power to decide on the scope of permissible abortion.
  • Amend but provide for law which could not be amended without a referendum.

Other issues

Earlier this morning, members heard a number of presentations by legal experts on the role of the Eighth Amendment in medical practice.

The 99 members heard from barrister Emily Egan SC who spoke about the role of the Eighth Amendment on medical and parental decision-making.

Egan spoke to members about the role of a medical consent as well as the role of the Protection of Life During Pregnancy Act.

UCD’s John O’Dowd spoke about the complexities in law of defining when ‘the unborn’ exists and pointed out that ‘the unborn’ does have other rights under Irish law aside from ‘life’.

O’Dowd also spoke about the judicial disagreement over the how the right to life is expanded beyond the issue of terminations.

This afternoon, the assembly will hear six first-hand experiences from women affected by the Eighth Amendment.

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The anonymous personal stories will be played for assembly members in the form of edited audio interviews that are between 7-7.5 minutes long.

As part of its work, the assembly received more than 13,500 submissions from advocacy groups and members of the public.

This weekend’s work programme is dictated by those submissions with 23 groups or individuals making their presentations in person.

Tomorrow the 17 advocacy groups chosen to participate have each nominated an individual to represent them in person.

To account for the significant work programme, this weekend was lengthened compared to previous meetings with the consent of the assembly members.

A recommendation will be made to the Oireachtas at next month’s meeting of the assembly.

This recommendation will be made following a vote or series of votes by the assembly members.

If a change is recommended, the government must decide if a referendum is required.

Whether or not a change is proposed, the assembly’s recommendation will be more precise than simply stating whether or not a referendum should be held or whether the law should be amended.

Further details of this weekend’s schedule are available online and the proceedings will also be streamed on citizensassembly.ie.

Follow @ronanduffy_ for updates throughout the weekend. 

Read: ‘Dismay’ and online anger as pro-choice TFMR Ireland excluded from Citizens’ Assembly >

Read: More than five’ anonymous women will have a vital say on the future of abortion in Ireland >

About the author:

Rónán Duffy

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