Wednesday 28 June 2017

Citizens' Assembly hears Ireland should 'remove or replace' Eighth Amendment to achieve similar abortion system to England

The Assembly is to hear personal stories of women who have had abortions this afternoon
The Assembly is to hear personal stories of women who have had abortions this afternoon

Laura Lynott

A TOP barrister said the most “secure” way for Ireland to achieve a similar abortion system to England would be to “remove or replace” the Eighth Amendment and allow the Oireachtas to legislate abortion law.

Brian Murray SC told the 99 members of the Citizens’ Assembly today that the “critical question is what will the extent of the power for the Oireachtas to legislate for abortion be in a constitutional situation?”

“To achieve a position similar to England,” he added, “Article 4.3.3 couldn’t stand in its present form.  It would have to be removed or replaced.

“The most secure way to allow the Oireachtas to legislate like the English Parliament, would be to repeal the Eighth Amendment and the unborn would have no rights and abortion legislation is a matter only for the Oireachtas.”

The barrister was speaking at the Grand Hotel, Malahide, Co Dublin, ahead of six personal stories of women affected by current abortion laws in Ireland, which will be heard this afternoon via pre-recorded sessions.

Chair of the the Assembly Ms Justice Mary Laffoy, said “I am very grateful to each of these women for providing us with an opportunity to hear first-hand how the issues we have been discussing has affected their lives and that of their families.

“I am asking that whatever side of the debate or discussion people may find themselves on that they will listen to these voices and show respect for these women and their lived experiences, we owe them a debt of gratitude for sharing their stories with us.”

Mr Murray told the Assembly, he didn’t believe they had yet considered what could occur in Irish society if the Eighth Amendment was repealed “and nothing put in its place or amended.”

“Would the position be that the Oireachtas would be totally free to introduce whatever abortion laws it felt appropriate?

“Would there be constitutional limitation on the powers of the Oireachtas?  And, if so...what would its effect be?”

Mr Murray said that before the introduction of the 1983 Eighth Amendment, judges had used an “implied” right to life regarding unborn foetuses in the State.

And the solicitor said, it was possible, even if the Eighth was repealed, legally this implied right could once again be referred to.

“What about the right to privacy and autonomy of the woman?” he asked.  The lawyer explained a possibility that even if the act was repealed there could be a legal argument that women’s bodily “integrity” was not being protected by legal abortion.

“Remember there was an implied right to the unborn pre 1983....there may be those that say this legislation doesn’t allow for abortion, that it’s an impairment to privacy and bodily integrity of pregnant women.

“At present, cases of those kinds would be resolved by the text of Article 4.3.3.

“If the express right of the unborn is removed, is there a prospect the courts would find there’s no constitutional right to have restrictions on the entitlement to an abortion save in limited circumstances?

“The resolution …. depends on many questions...essentially it comes down to if the Eighth Amendment were repealed…”

When asked about the rights of the father post any removal or repealing of the Eighth by members of the Assembly, Mr Murray said he didn’t currently believe men had a right recognised by Irish law regarding the Eighth, so he didn’t consider that would change.

Mr Murray said that if the Eighth was amended or repealed that: “The courts would try to strike a balance to say the people clearly don’t want the regime in 4.3.3 to continue …

“But for the unborn to have no rights, the courts could try to conduct a balance between abortion legislation and the continuing right of the unborn.”

The solicitor said that the Irish State had so far looked at its legal system on the basis of Christian and democratic freedoms, something unlikely to change post any introduction of abortion rights.

The solicitor said it was his “personally” held view that if the Eight was repealed “that the courts would give effect to the view of the people...to extract abortion legislation altogether but that’s only a personal view and others have different views.”

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