In the referendum people will vote ‘yes’ or ‘no’ to removing Article 40.3.3 (‘the 8th Amendment’) from the Constitution and replacing it with a new text: ‘Provision may be made by law for the regulation of termination of pregnancies’.
What will change in the constitutional text?
If there is a ‘yes’ vote on 25th May, Article 40.3.3 of the Constitution will be removed. This (a) protects the right to life of the ‘unborn’ on an equal basis to the right to life of a pregnant person, (b) protects a right to receive information about abortion, and (c) prevents the state stopping people from traveling to access abortion abroad. (See more here).
If there is a ‘yes’ vote, a new article would be inserted that says ‘Provision may be made by law for the regulation of termination of pregnancies’. This would make it clear that the Oireachtas may make law allowing for abortion in more cases than it is currently permitted.
The rights to travel and to receive information would be protected in the context of abortion as they are in all other contexts: there would no longer be a special/separate legal regime for abortion information and travel.
What does this mean?
The Oireachtas has always had power to introduce law on abortion (Article 15, Constitution of Ireland).
However, the 8th Amendment put limits on that power. The most the Oireachtas can do under the 8th Amendment is to introduce lawful abortion in cases where a pregnant person’s life is at risk. This is what was done in the Protection of Life During Pregnancy Act 2013. We explain more here and here.
If there is a ‘yes’ vote, the Oireachtas will not be limited in this way. It will instead be possible for it to introduce legal abortion in a wider variety of cases, although the Oireachtas would be able to place proportionate limitations on access to abortion.
If there is a ‘no’ vote, the current restrictions on the Oireachtas’ power to make law on abortion would remain in place.
What is the relationship between the Constitution and ‘ordinary law’/legislation?
The Constitution will not lay down the law on abortion in its totality. As with most things, the law will be a mixture of the constitutional provision and an Act of the Oireachtas.
The Constitution has two functions in terms of law-making.
First, the Constitution compels: when we have rights under the Constitution the state is compelled (or required) to protect them. This is usually done by law. Almost all rights can be limited (i.e. they are not absolute), so that we can put restrictions on them.
Thus, in this context, the rights of pregnant women post-repeal may compel the Oireachtas to make law allowing for abortion to be lawfully available in more circumstances than is currently the case.
Second, the Constitution restrains: it places firm limits on the power of the Oireachtas. While the Oireachtas can limit our exercise of rights in legislation it must do so in a proportionate manner.
Thus, in this context, the Oireachtas would be able to put constraints on access to abortion provided those constraints respected women’s constitutional rights.
Will the new law have to be as currently proposed by the Government?
However, this is just a proposal.
As usual, it will be up to the members of the Oireachtas to debate, amend, discuss, and vote for or against the proposed new law.
This is not the first time that the government has proposed draft legislation alongside a referendum. This was also done during the second divorce referendum (1995), the children’s rights referendum (2012) and the referendum on Oireachtas inquiries (2011).