The Attorney General has advised the Government that while no approach to the abortion issue "can be completely free of risk of legal challenge" the legally safer option would be to insert an enabling provision in the Constitution if the Eighth Amendment is repealed.
This would be a legally safer option than a simple repeal of Article 40.3.3 of the Constitution which protects the equal right to life of the mother and the unborn.
Such an enabling provision is not without precedent,Aa summary of the advice by Séamus Woulfe to the Government, and seen by The Irish Times states.
Legal advice on repealing 8th amendment and allowing for enabling provision pic.twitter.com/vufAlBrDS9
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It explains his decision to recommend a replacement of Article 40.3.3 of the Constitution with an enabling provision.
The Constitution already provides for the Oireachtas to make laws for the State. However Mr Woulfe advises making it clear that the Oireachtas has the power to legislate for the termination of pregnancy is advantageous.
“The Attorney General advised there is no certainty about the post-repeal landscape of rights. If Article 40.3.3 were repealed simpliciter, it might subsequently be argued before the courts that the unborn have residual rights arising under other Articles of the Constitution that could continue to restrict the power of the Oireachtas to legislate on this issue.”
“To mitigate the uncertainty that might arise in such circumstances, it was 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”.
Minister for Health Simon Harris is briefing leaders of the opposition parties on the content of the legal advice on Tuesday afternoon.
Mr Harris has committed to introducing a policy paper on March 6th showing the direction of travel for legislation.
The advice of the Attorney general states: “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.”
Such an amendment, he said, would make it clear that it will be primarily be a legislative function for the Oireachtas to determine how best to guarantee and balance proportionately the rights, interests and values that are engaged.
The Attorney General also insists any such amendment will maintain the separation of powers provided for in the Constitution and would not “oust” the judicial review of the courts or restrict their rights.
