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.
Liberal regime
“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”.