The 8th Amendment of the Constitution provides:
“The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.”
The proposed amendment to the Constitution, the 36th Amendment, will make the following two changes to the Constitution if passed in the referendum:
- delete the current Article 40.3.3° (which consists of the 8th, 13th and 14th Amendments); and
- insert the following sentence in the Constitution in place of Art. 40.3.3°: “Provision may be made by law for the regulation of termination of pregnancy.”
In M v. Minister for Justice and Equality (Supreme Court, 7th March 2018), the Supreme Court held that the unborn have no constitutional rights other than the right to life protected by the 8th Amendment. Therefore, if this referendum is passed the unborn will have no constitutional rights whatsoever. As a result, if the referendum is passed the Oireachtas will be able to enact any law they want on abortion and make any changes to that law at any time in the future if a majority of TDs so decide. They will even be able to bring in abortion on demand up to birth if at any time a majority of TDs support that. Only a simple majority of TDs would be required, because:
- under Article 15 of the Constitution, a simple majority in the Dáil is sufficient, except where the Constitution itself says that more than a simple majority is required, and the 36th Amendment does not require more than a simple majority;
- if the Seanad doesn’t go along with the proposed law or with a proposed future change to that law, the Dáil can override the Seanad, by virtue of Article 23 of the Constitution. Therefore it would not be necessary to have majority agreement in the Seanad. Anyway, Seanad disagreement would be unlikely.
Even now, when they still have to get People to vote through the referendum, the legislation envisaged by the government is already very extreme, even more extreme than Britain. It contains some limitations. However, if a constitutional challenge is taken to those limitations on the basis of the mother’s constitutional rights, such as the unenumerated (i.e. unspecified but implied) constitutional right to privacy, the Supreme Court could take the view, albeit perhaps wrongly, that such limitations on abortion infringe the mother’s rights, since the unborn will have no constitutional rights if the referendum is passed. If it took the view that the mother’s rights were infringed by a particular limitation on abortion, the Court would strike down such limitations as unconstitutional. Wording could have been devised that would have prevented this possibility, but the wording of the proposed 36th Amendment instead leaves open this possibility.
The Supreme Court did say in the judgment referred to above:
“…. the State is entitled to take account of the respect which is due to human life as a factor which may be taken into account as an aspect of the common good in legislating….”
However, that statement was an obiter dictum (a non-binding statement), because it was not a necessary statement for the decision of the case. This means Courts do not have to go along with that statement in the future, so it cannot be relied on as meaning that limitations on abortion would not be struck down as unconstitutional. Also, even if it is followed in the future, it is just a broad statement of principle. It does not indicate what limitations on abortion would or would not be struck down as unconstitutional. That question could only arise for the Courts if the 36th Amendment is passed, so the Courts have not had to decide that and we do not know what they would decide on that.
Remember, the question for decision in any referendum is whether or not the voter agrees with the government’s proposed change to the Constitution. Although it’s a good idea to inform householders of the main points of the proposed legislation (the health ground and the on demand up to 12 weeks provision), it’s also important to bring their attention to the fact that, unlike the Constitution, legislation can be changed at any time without the consent of the people. Therefore, the question for each voter to decide is whether or not they want to take the right to life away from every unborn child, at every stage of development, in all circumstances and give the Oireachtas power to introduce as wide-ranging abortion as they want at any time, because that is the constitutional change proposed. For those who don’t want that, the vote that correctly represents their view is a No vote.