Abortion on demand would be the inevitable effect of repealing the Eighth Amendment to the Constitution, a leading academic has said.
The most obvious legal interpretation of any vote to remove article 40.3.3 from Bunreacht na hÉireann would be that the people had chosen to abolish constitutional protections for the unborn, according to Prof. Gerry Whyte of Trinity College, Dublin.
Writing in The Irish Times, the law lecturer said that repealing the explicit protections for the unborn that were voted for by a 2:1 majority in 1983 would not return Ireland’s abortion rights to the same constitutional position that applied before that point.
Under the Constitution as it stands, he wrote, the right to life of both mother and unborn child are protected, with the former prevailing only wherever continuation of the pregnancy poses a real and substantial risk to the mother’s life.
“The most obvious interpretation of any decision to delete article 40.3.3 is that the people will have decided to completely withdraw constitutional protection from the unborn,” he continued.
“In this situation, the only constitutional factor at play will be the constitutional rights of the mother and clearly these would support a much more liberal regime of abortion.”
Pointing out that since 1965 the courts have expected the Oireachtas to justify situations where individual rights are interfered with in the interests of the common good, he observed that this test has never addressed situations where the people had directly expressed an opinion in a referendum.
As such, he continued, a vote to remove article 40.3.3 of the Constitution would be read as a statement that the common good no longer required any protection of the right to life for the unborn.
This would make it unconstitutional for the Oireachtas to attempt to restrict any woman’s constitutional rights in relation to a wish to terminate her pregnancy, he wrote, with the effect “that we would have arrived at a situation of abortion on demand”.