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Dublin: 6 °C Friday 15 November, 2019
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TODAY SAW THE second public meeting of Eighth Amendment Committee’s discussions on abortion.

The 22-person committee heard from constitutional experts about the potential implications repealing, replacing or amending the Eighth Amendment

This is how it all went down.

Posted by on Friday, 15 November 2019

Hello, Rónán Duffy here again for the second day of the committee’s deliberations.

The meeting is currently in private session (you can watch it here), but should be starting shortly.

You can catch up on what happened last week here.

It’s been well flagged, but it was confirmed yesterday that the referendum on the Eighth Amendment will be held in May or June of next year.

It was also confirmed that it would be a standalone referendum, i.e. with no other referenda that day.

Pro-choice campaigners such as the Coalition to Repeal the Eighth had been vocal in their support of holding a standalone referendum.

Taoiseach Leo Varadkar has been taking some heat for refusing to say which side of the referendum he would be campaigning on.

A government spokesperson said that the Taoiseach would be waiting to see the Oireachtas committee’s proposals before making public which side of the fence he’s on.

We asked a poll on the Taoiseach’s stance today, most think he should be clearer but a substantial minority think he’s making the right call.

PastedImage-59087 Source: TheJournal.ie

PastedImage-77248 Source: Oireachtas.ie

Dr David Kenny of Trinity College begins his presentation.

He is outlining that constitutional rights can be both written and implied.

In terms of replacing the Eighth Amendment, he says he will be discussing it in terms of the Citizen’s Assembly’s recommendation that it be replaced with a provision to direct the Oireachtas to legislate.

As was outlined during the Citizens’ Assembly, Kenny outlines that a constitutional change would not automatically change Ireland’s abortion regime as laws would still hold.

Kenny is discussing the possibility that the Oireachtas could be specifically empowered to legislate for these issues to prevent Ireland’s abortion practices being decided in the courts.

PastedImage-43275 Source: Oireachtas.ie

Fiona de Londras of the University of Birmingham is now outlining her introductory presentation.

She says that it is her opinion that a simple repeal would mean that the constitutional rights of pregnant woman would continue.

The rights of the unborn could be provided for by legislation.

The constitutional experts are fairly rattling through a range of different possibilities that could occur under different potential options to change the law.

It’s all very hypothetical and will surely provoke plenty of questions from the committee.

Mary O’Toole SC is now speaking about the X Case and the balancing of the rights to life of the mother and the unborn.

Mary O’Toole points out that most of the legal challenges in this area have involved children or people who haven’t got full legal autonomy, such as those part of the immigration system.

Senator Lynn Ruane asks the legal experts a number of questions.

Among them is whether legal certainty is the “most important” value of any proposals they make.

She is also seeking their professional opinion on: “What the right to life of the foetus would be, should the Eighth Amendment be removed?”

David Kenny says he agrees with Fiona de Londras in saying that dealing with the complex issue of abortion in the constitution would be “cumbersome and impractical”.

Both he and de Londras say it is completely up to the committee to decide the importance of the value of certainty.

De Londras says certainty is important for a range of affected persons including doctors and those seeking a termination.

Mary O’Toole SC addresses the issue of certainty:

You’re simply never going to get full certainly. There isn’t a legal provision anywhere where you have certainty, there are degrees of certainty.

“Putting complex legal provisions into the constitution is simply impossible,” she adds.

Fianna Fáil’s James Browne TD asks Fiona de Londras about legislating for abortion in cases of rape and incest.

She says there are problems in doing this, both in terms of the Constitution and in legislation.

There are problems in terms of both “proof and qualification”, she adds.

Questions would arise in terms of whether the individual would be required to engage with the criminal justice system, for example.

James Browne TD is raising a question he also brought up last week.

He has concerns that Ireland’s political system, in which coalitions are common, could cause wild swings in Ireland’s abortion laws.

Both David Kenny and Fiona de Londras decline to answer that, saying it is a political issue, not a legal one.

Senator Rónán Mullen is criticising Fiona de Londras’ presentation.

He criticises her use of the word ‘foetus’, rather than ‘unborn’, and says that she “drifted into the realm of opinion”.

By way of comparison, Mullen says of the first speaker:

David Kenny, I cannot fault a word of what you say.

Rónán Mullen says that, in the UK, abortion laws were designed to be available in exceptional cases but turned into “an abortion on demand situation”.

“Legislation of any kind is potentially prone to surprising outcomes,” he says.

Fiona de Londras says she is agnostic about what term she uses, be it foetal life or life of the unborn.

PastedImage-44594 Source: Oireachtas.ie

Kate O’Connell TD is also following up on the question from James Browne TD, saying that it seems to be practically impossible to legislate for abortion in cases of rape.

She asks the experts if that impression is correct.

“Unworkable,” is the word used by Dr David Kenny.

David Kenny and Fiona de Londras both say it is their understanding that only Somalia, Swaziland and Kenya provide for abortion only on specific grounds.

“The problem is that nobody can say for certain what’s going to happen. So all you can do is arrive at a position where you can be as certain as possible about what you want to achieve,” says Mary O’Toole SC.

PastedImage-35311 Source: Oireachtas.ie

A different take on the question of certainty from Sinn Féin’s Louise O’Reilly TD.

“At the moment, do we have legal certainty?,” she asks.

“I think we do,” answers Fiona de Londras.

David Kenny says he agrees but adds “that was won after decades of uncertainty”, not by the Eighth Amendment alone.

Catherine Murphy TD asks, if the Eighth Amendment is repealed, would the judiciary then look at precedent differently if new cases were brought forward.

How do they interpret the people’s decision?

Mary O’Toole says, if there was a repeal, the courts would deliberate what the effect of the repeal would be and what the intention of the repeal was.

O’Toole says the conclusion of this outcome is unknowable.

David Kenny says it is difficult for the judiciary to determine what the intent of the public is in referenda.

“It is very hard to determine the intent of the people at the best of times, because the intent of people is diffuse,” he says.

PastedImage-96450 Source: Oireachtas.ie

Clare Daly TD questions whether too much emphasis is devoted to the importance of achieving certainty. She asks whether things are being over-complicated.

“The level of certainty we’re searching for here is a holy grail, it doesn’t exist,” she says.

Ruth Coppinger TD says her questions relate to the recommendations of the Citizens’ Assembly.

She says today the focus has been on “repeal or replace”, but that what the Citizens’ Assembly effectively recommended was “repeal and replace”.

She’s half-right in that any such replacement would first need a repeal.

The Citizens’ Assembly in fact recommended that the Eighth be “replaced or amended”.

David Kenny gives his general feeling on the intentions of the Citizens’ Assembly.

He says they first wanted to take this out of the constitution and then give some guidance as to what they felt the law should be, with their recommendations.

But, he feels they didn’t make that choice based on the understanding that the Oireachtas would listen to their specific recommendations after it was removed from the constitution.

Peter Fitzpatrick TD outlines the different stages of pregnancy and says that “removing the Eighth Amendment would inevitably lead to abortion on demand”.

He asks the legal experts for their opinion on this.

In a survey by TheJournal.ie of the 22 members of the committee, Fitzpatrick was one of just two who said they did not want abortion available in more cases than it currently is.

PastedImage-2460 Source: TheJournal.ie

“I think it is very unlikely that abortion on demand would be the result of the repeal of the amendment,” Mary O’Toole says in response to Fitzpatrick.

De Londras agrees, she says it is unlikely and is far from “inevitable”, as Fitzpatrick had claimed.

Billy Kelleher TD is asking about a situation where legislation would be published in tandem with a referendum.

He wonders, if the Constitution was then changed, would the Oireachtas be reluctant to change legislation given that the original legislation was published in tandem with a referendum.

“The answer is probably, likely yes,” according to Fiona de Londras.

PastedImage-92540 Source: Oireachtas.ie

Bernard Durkan TD opens by saying:

I want to state in opening that I am not in favour of abortion, I have never been.

He says that it is more complicated than that however, and mentions cases of rape and incest.

“The Citizens’ Assembly has the advantage of not having to address their constituents,” Durkan says.

Mattie McGrath TD is the final deputy asking questions, he has issues with the use of language.

He isn’t happy with Fiona de Londras’ use of the term “fatal foetal abnormality” and he wants to ask Mary O’Toole about the meaning of bodily integrity.

“A woman’s right to bodily integrity is a right to abortion, that’s what you said. Who defined bodily integrity as a right to abortion?” he asks.

PastedImage-33147 Source: Oireachtas.ie

“I don’t think I said that,” Mary O’Toole says in response, adding that at the moment abortion in Ireland is only available if there is a substantial risk to the life of the mother.

“A right to bodily integrity is usually associated with a right to the preservation of her health,” O’Toole adds.

O’Toole’s response pretty much concludes today’s proceedings and our liveblog.

But if you want a recap of what happened we’ll be publishing that later.

Every Wednesday evening, we will be sending out an email round-up of what happened at the committee that day.

To get the weekly round-up, just enter your email in the box at the bottom of this article.

That’s it from me, thank you for joining us and I hope you do so again next week.

About the author:

Rónán Duffy

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