Members of the Oireachtas will have the final say on what type of abortion law should be introduced if people vote to repeal the Eighth Amendment, the Citizens' Assembly has heard.
Senior counsel Brian Murray has told the 99 members of the Citizens'Assembly that there are three options they should consider when submitting recommendations to the Oireachtas.
They could recommend that Article 40.3.3 stay as it is, or alternatively they could recommend that it be either repealed or amended.
He told them that if the citizens decided to keep the status quo, then the legal, medical and practical consequences will continue to prevail as now.
If Article 40.3.3 was simply deleted, it would be solely up to the Oireachtas to decide what, if anything, would replace it.
If the Oireachtas did nothing, the present law, the Protection of Human Life in Pregnancy Act 2013, would prevail.
However, he stressed the courts could interpret where the law stood as far as abortion was concerned and could take different viewpoints.
In response to questions from the citizens, Mr Murray said he believed the courts would interpret the repeal of Article 40.3.3 as meaning that if the people no longer wanted an explicit right to life for the unborn in the Constitution, it followed that they did not want them to have an implicit right to life either.
However, other lawyers might interpret it differently. They might hold that just because Article 40.3.3 was deleted did not mean that the unborn had no constitutional rights, he told the assembly.
It might be necessary, he advised the members, to avoid that interpretation by explicitly stating in the Constitution that the unborn do not have a right to life.
If the courts interpret that an implied right still remains after deleting Article 40.3.3, it could limit the power of the Oireachtas to legislate on the issue of abortion, he stated.
Another interpretation of what would happen after a deletion of Article 40.3.3 is that the courts would decide that the unborn had no or only limited rights and that the rights of pregnant women to privacy, to bodily integrity and autonomy would now prevail, amount to a “right to choose”.
In such circumstances, the Oireachtas might only be able to prohibit abortion in circumstances where it could demonstrated there was a clear public interest involved.
The alternative would be to amend rather than repeal Article 40.3.3. He proposed a number of scenarios.
1) An amendment to increase the constitutional protection given to the unborn which would further limit the circumstances in which abortion is permissible in Ireland.
2) An amendment to increase the powers of the Oireachtas to legislate for a right to abortion in defined circumstances such as rape or incest.
3) An amendment could state that it would be up to the Oireachtas alone to decide the scope of permissible abortion.
4) The possibility of the Government publishing legislation which would be published in conjunction with a proposal to amend the Eighth Amendment. In such circumstances, the courts might decide that in the future abortion could not be allowed other than as outlined in the legislation.
An alternative would be that Article 40.3.3 would be repealed with a provision that specified legislation allowing for abortion could not be amended without a referendum. However, he warned this would be an “unusual and cumbersome form of constitutional amendment” though legally possible.
Citizen Assembly chair Ms Justice Mary Laffoy said the members could not simply recommend that Article 40.3.3 be amended if they chose that route. They would have to specify what that amendment should be.
She drew attention to the importance of Mr Murray’s paper and said that the members will be consulting it “night noon and morning” on the next weekend when they decide what recommendations, if any, to make to the Oireachtas.
