REPEAL IS NOT ENOUGH, SAY LAW EXPERTS
REPEALING the Eighth Amendment may do little to change Ireland’s restrictive abortion laws if the Oireachtas doesn’t review the wider rights of the unborn in other parts of the Constitution. Addressing the legal ‘uncertainties’ the country could face if the Eighth Amendment is repealed, without any further provisions of what follows, constitutional expert Conor O’Mahony said it would be left to TDs to decide how or if abortion is to be legalised. He added: ‘The risk in that circumstance is that whatever legislation is passed by the Oireachtas could be challenged in reference to other parts of the Constitution.’
The unborn have some rights protected by other parts of the Constitution, particularly under Article 40.3, in addition to the Eighth Amendment, or Article 40.3.3. Oran Doyle, a professor of constitutional law in Dublin’s Trinity College, said: ‘Even if you deleted the Eighth Amendment, you would be left with the implicit protection that was there before 1983.’
However, he said, in this case, these protections would come into conflict with rights of women that are recognised by the courts, called ‘autonomy rights’. ‘If the Eighth Amendment was repealed, a pregnant woman could make the argument that her autonomy rights included the right to have a termination,’ said Prof. Doyle.