The next steps towards repeal: the six options open to the Joint Oireachtas Committee
December 7, 2017 - Contact your TD, Media, Policy & Advocacy - Tagged: government, Joint Oireachtas Committee, repeal the 8th, vote	- no comments
You may not have been following the work of the Joint Oireachtas Committee (JOC) or even if you have, you might still be a bit confused. Here's everything you need to know about the updates so far.
The JOC is meeting to discuss the recommendations the Citizens Assembly made in order to decide what to do with those recommendations.
The Committee has already voted in favour of not retaining the 8th Amendment in full, which was the same initial question that was put to the Citizens' Assembly. A later vote will decide what changes the Committee wants to make to the 8th, as well as what (if any) legislation they think should be brought in.
What are they going to vote on?
The JOC will choose one of six options. Some options are better than others for allowing abortions that are free, safe and legal and for some it depends on the specific wording of legislation or referendum questions.
The options:
Repeal simpliciter
Simpliciter is Latin for simply, and would mean the 8th amendment is repealed and nothing else added, taken away or considered.
This is the simplest option. It would likely involve a referendum question, asking people to vote on removing Article 40.3.3.
There would be no immediate change in abortion access. The Protection of Life During Pregnancy Act would remain in place, however it would now be legal for the Oireachtas to either amend this Act or get rid of it altogether.
It would be up to the Oireachtas to decide what framework of laws might govern abortion in the future.
It is a flexible solution as we would not need to have another referendum to change the law in any way.
It would remove the issue of abortion access from the constitution.
Repeal based on published legislation entrenched in the Constitution
This means the 8th Amendment would be repealed and replaced with a reference to a specific law written in the Constitution.
This would keep the regulation of abortion in the Constitution.
It would not be possible to change any part of that law without another referendum.
It would provide a lot of legal certainty, but no flexibility.
There is a risk that the law entrenched in the Constitution would have unintended consequences or it might be incompatible with future developments. For example, had an abortion law been written 15 years ago it would not have allowed for use of the abortion pill – which is now the most common form of abortion procedure. Inflexibility can be problematic.
Repeal based on legislation published in tandem with a referendum
This is similar to option 1; the public would vote on a straight repeal / don't repeal question and if the referendum passes the 8th amendment would be simply removed from the Constitution.
Additionally, the government would write draft legislation and publish it before the referendum with the promise to the public they will put this law through the Oireachtas if the referendum is passed.
The promise would not be legally binding and they can't guarantee it would pass if they don't have the votes in the Dail and Seanad.
However, there would be huge political pressure to keep the promise to the electorate and put forward the promised legislation. There may be amendments made to the proposed legislation before or after it is enacted.
We would not need to have another referendum to change the law.
Repeal and replacement on specific grounds
The 8th Amendment would be removed from the constitution but it would be replaced with some specific wording around circumstances where abortion is permitted or not.
This option keeps regulation of abortion in the constitution.
It would be quite tricky to set the wording for the replacement because many grounds are difficult to define in clear legal terms. It is likely there will be Supreme Court challenges on the exact meaning of the grounds inserted.
The words that are inserted into the Constitution will take precedence over the Protection of Life During Pregnancy Act or any other laws enacted by the Oireachtas.
We would need a referendum to change the grounds in the future.
This solution is the one that was chosen for the divorce referendum in 1996. One of the grounds inserted is that the couple must be living apart for four years before divorcing. The government now wants to reduce this waiting period to two years but they must hold another referendum to do so. This shows how inflexible this solution is.
Repeal and replace on broad grounds and/or expressing a rebalancing of rights
This involves removing the 8th Amendment from the Constitution and replacing it with a statement on what the balance of rights between the pregnant person and the fetus is. This could give pregnant people more rights than they currently have but they may still see their rights infringed upon, depending on the chosen wording.
On broad grounds this would still keep regulation of abortion in the Constitution. It may also affect pregnancies where the pregnant person is not seeking an abortion.
We would need a referendum to change the grounds or balance of rights.
How the rebalancing of rights would work in practice is still unclear, as we currently have no clear explanation of how far that would go. It is likely that there would be Supreme Court challenges on exactly how these rights may compete.
Again this option is inflexible and difficult as it would involve concepts that are tricky to define legally.
Repeal and replacement with provision conferring exclusive power on the Oireachtas to legislate
This involves removing the 8th Amendment from the Constitution and replacing it with a provision that states that abortion law is within the remit of the Oireachtas (as opposed to the Constitution or the Courts).
This is what the Citizens Assembly voted for, under legal advisement that this could bring the most certainty. However a number of legal advisers to the JOC have indicated that 'legal certainty' is very difficult within a constitutional context
It would be an unusual course of action, but depending on wording it would not necessarily limit the Oireachtas in changing or bringing in new laws.
It would not force the Oireachtas to legislate. If they did not legislate the Protection of Life During Pregnancy Act would stand.
The legal effect of this provision could be to potentially limit court challenges to abortion access, but again this depends on the wording of the provision.
We most likely would not need another referendum to change the law in future.
These options will be voted on on the 13th of December, alongside various other proposals similar to the decisions made by the Citizens Assembly.
The Joint Oireachtas Committee will then publish a report to summarises their recommendations and this report will be reviewed by the Government. The Government will decide whether to implement the recommendations or not, including calling for a referendum. The Abortion Rights Campaign will be monitoring developments and continuing to call for change to Ireland's extreme laws. We know women and pregnant people continue to suffer every single day that the 8th Amendment remains in place.
What can you do now? Get involved with the fight for free, safe and legal abortion by joining a pro-choice group in your area. Contact your TDs and make it clear that options that keep healthcare in the Constitution are a dealbreaker for you. Contact your local authority to make sure you are on the Register of Electors. And talk to your family and friends – explain why full repeal of the Eighth and free, safe, legal access to abortion is the necessary gold standard to provide proper care to all pregnant people in Ireland.