The proposed amendment to the Constitution is unprecedented, in that it appends an Act (not yet passed) to the Constitution as a Schedule. Opinions vary among constitutional lawyers as to whether this is desirable.
"From a technical perspective, it's a masterpiece of ingenious drafting. But it's inelegant from the point of view of the structure of the Constitution," said constitutional lawyer, Mr Gerard Hogan SC. Mr Bill Shipsey SC went further. "It seems to put things in reverse. The Constitution is your primary document, and legislation secondary. It blurs the distinction between the Constitution and legislation."
He thinks the correct route would have been to publish legislation on the matter, and test its constitutionality by referring it to the Supreme Court.
However, the proposed Bill is unlikely to have passed such a test, as it outlaws suicide as a ground for abortion, which was found to be constitutional by the Supreme Court in 1992.
Others see the proposal as the best solution in difficult political circumstances. Mr John O'Dowd, lecturer in constitutional law in UCD, said: "If abortion is in the Constitution at all this is the most satisfactory way. Otherwise it depends on the Supreme Court's views at any particular stage."
Mr Gerard Whyte, who lectures in constitutional law in Trinity College, said that constitutional elegance was not a primary consideration. "We're dealing with the people exercising its sovereign power. It's open to the people to amend the Constitution in any way they want. It's open to them to adopt this particular formula of attaching legislation as a schedule if there is no one-liner formula."
There are also concerns that the amendment alters the constitutional protection of the unborn that exists in Article 40.3.3, which was inserted by the 1983 Amendment. It guarantees to protect the right to life of the unborn, along with the equal right to life of the mother.
The proposed Bill, to be attached as a schedule to the Constitution, states that abortion, or the intentional killing of unborn life, does not apply to medical procedures carried out in good faith by a medical practitioner where he thinks there is a real and substantial risk of loss of life of the mother.
"If you carry out such a procedure, you're having regard to her rights; they prevail," said one senior counsel, who did not want to be named. "It is not equal any more." He also felt it would be impossible to prosecute a doctor for carrying out an abortion under this proposed Act, as it required a doctor to hold his opinion "in good faith". It would be difficult to impugn the good faith of a doctor, he thought.
However, another senior counsel said that the equal right to life of mother and unborn was always a fiction. "The Constitution is saying that one right is as valuable as another in principle. In practice the equal right to life is an impossibility. The courts must always decide between them when asked. To that extent the 1983 amendment never made sense.
"It's like having to choose between the right to freedom of speech and freedom of religion."