Will the Oireachtas be required to legislate for abortion post-repeal?

While the wording of the proposed 36th Amendment to the Constitution does not explicitly require the Oireachtas to pass new law regulating abortion, this is likely to be necessary to protect the rights of pregnant people after repeal.


If the 8th Amendment is repealed, the Protection of Life During Pregnancy Act 2013 will remain in force; there will be no legal vacuum (see explanation here). However, that law is very restrictive as it only allows for abortion to be provided where a pregnant person’s life is in danger. This law was passed to give effect to the 8th Amendment of the Constitution. As the 8th Amendment only allowed for abortion where the life of the pregnant person was at risk, the law passed by the Oireachtas could not go beyond that.

If the 8th Amendment is repealed, then that will no longer be the case: the Oireachtas will be able to legislate for abortion in a wider range of cases.

Importantly, the 36th Amendment, on which people will vote on May 25th, says that “provision may be made” for the termination of pregnancy (our emphasis). It does not strictly require such a law (if it did, it would say that provision ‘shall’ be made for such a law).

Thus, on the face of it the Oireachtas will not be compelled to make a new law providing for the provision of abortion in a broader set of circumstances.

Although removal of the 8th Amendment will mean that the foetus no longer has constitutional rights (M v Minister for Justice and Others [2018] IESC 14, para. 10.63), pregnant people will continue to have their full range of constitutional rights, including rights to life, to be free from torture, to privacy, and to bodily integrity. It is very likely that in order to vindicate and protect those rights (as the state is obliged to do), a new law will be required.

At the very least, it is likely that these constitutional rights will require the legalisation of abortion in cases of rape, incest, and ‘fatal foetal anomaly’. This would be in line with international human rights law. It can be argued that the Constitution also requires lawful abortion to be made available in situations of serious risk to health (to vindicate the right to bodily integrity and potentially the right to life). An argument can also be made that abortion ‘on request’ in early pregnancy is required to vindicate the right to privacy and to bodily integrity.

Thus, if repeal were not followed by a new law that allowed for abortion in a broader set of circumstances it is likely that a constitutional challenge to the restrictiveness of the Protection of Life During Pregnancy Act 2013 would succeed, at least to guarantee access to abortion in cases of rape, incest, risk to life, serious risk to health, and ‘fatal foetal anomaly’.

Further Reading

de Londras & Enright, Repealing the 8th: Reforming Irish Abortion Law (2018), Chapter 3 & Postscript

10 thoughts on “Will the Oireachtas be required to legislate for abortion post-repeal?

  1. So consider the following scenario. There is a Yes vote next month and the 8th is replaced by the new clause. There then follows a general election in the late Autumn or early Winter and in that election parties or individual candidates state their position and get elected (or not) on said positions. The electorate return a majority of TDs who say they will keep the POLDP Act. Are you then saying that the Supreme Court could rule the POLDP Act to be repugnant to the constitution?
    If so this would mean that Repeal does not simply hand the issue over to the Oireachtas and representative democracy to decide, it would actually open up some flavour of a Roe vs Wade. Clarity would be appreciated.

    Like

    • We cannot say with certainty what the Court would or would not decide, but we consider that in the absence of the 8th Amendment there is a very strong case that the PLDPA is unconstitutional as it disproportionately interferes with the rights of women to, e.g., bodily integrity and freedom from torture and inhuman treatment. Those restrictions are justified (maybe even required) by Art. 40.3.3 but in its absence that justification would be removed. While some restrictions would be permissible (and the proposed new law has many restrictions and limitations as we say here on the site), the PLDPA is so restrictive that it cannot, in our view, be justified as a proportionate interference with women’s rights in the absence of Art. 40.3.3. We discuss this at length in Chapter 3 of “Repealing the 8th”.
      We are not clear what you mean by “some flavour of Roe v Wade”. In Roe and the subsequent case of Planned Pregnancy v Casey the US Supreme Court held that the right to privacy protected against the criminalisation of abortion in early pregnancy although restrictions were permitted provided they did not impose an undue burden on women’s right to privacy. As a result states can, and do, impose quite significant restrictions on abortion access in line with the Constitution, while some restrictions have been found to be an undue burden and stuck down. See Whole Women’s Health v Hellerstedt.

      Like

    • Yes–at the moment women in Ireland have a constitutional right to access abortion if their lives are at risk (AG v X; Art 40.3.3). If Oireachtas wanted to restrict that (e.g. to make abortion illegal in cases of risk of suicide) this would fail to satisfy that constitutional right and be subject to challenge. This challenge would likely be successful.
      There have been two attempts to restrict by referendum: in 1992 and 2002 the people were offered the opportunity to remove the right to access abortion in cases of suicide. Both times the People rejected that proposition.

      Like

  2. Dear Prof. DeLondras
    Once again thank you for your rapid reply. Can I take it from your reply that if the referendum passes it would be insufficient for someone like myself who doesn’t want to see liberalisation to elect a TD committed to leaving the POLDP Act as it is or with a few tweaks.
    I ask you this because I have come across Yes campaigners who are claiming the people of a pro-life view can still safely vote Yes as we can still elect a parliament to keep the law as it is if we wish.
    Thus I would greatly appreciate the next time you or your colleagues intervene in the debate you make it absolutely clear that it is your view that the POLDP Act would be ruled repugnant to the constitution in its present form and that widescale changes would have to be made to the POLDP Act to bring it back to compliance with the constitution. In particular I would ask that you challenge anyone on the Yes side making the claim that the law would merely be a matter for the Oireachtas post-referendum.
    Thank you again
    RT8

    Like

  3. Dear Prof. DeLondras
    I must ask why on the thread ‘Will a vote for repeal create a legal vacuum’ you say that the POLDP Act will stand until new legislation is passed. But if the POLDP Act is unconstitutional post-repeal surely it could be challenged in the courts as soon as the 36th amendment enters into force for the reasons you have stated above.
    Thanks Again
    RT8

    Like

  4. Dear Prof. De Londras
    Thank you again for your reply, I must re-iterate my initial point. Imagine post-repeal the government falls before it can legislate and at the election TDs committed to No change to the POLDP Act are elected after the electorate realise their foolishness on May 25th. Can the POLDP Act be then challenged in the courts or not. Your website is making contradictory claims on this page and the page “will a vote for repeal create a legal vacuum”.
    Perhaps more likely is the prospect of a majority of TDs voting against the 12 week clause post-repeal. Could we then see a legal challenge to force a change to the law or not?
    Thank you again
    RT8

    Like

    • All ordinary legislation can be challenged in the courts unless it has been deemed constitutional in an Article 26th reference.
      A vote for repeal would not lead to a legal vacuum. At any time (now or after the referendum) if someone successfully challenged a law and it was found to be unconstitutional all or part of it would be struck down. We have added a line to the ‘vacuum’ post to clarify; it is also covered in the ‘will the Oireachtas be required to legislate’ post.

      Like

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s