Repeal and Replace?

In the last week, while the members of the Oireachtas were making statements in response to the report of the Joint Committee on the 8th Amendment as well as the Citizens’ Assembly recommendations which it discussed, the spectre of repeal and replace has arisen again. The Citizens’ Assembly recommended the repeal of the 8th Amendment and its replacement with a provision “explicitly authorising the Oireachtas to address termination of pregnancy, any rights of the unborn and any rights of the pregnant woman”. It is broadly agreed that in doing so the Assembly was reflecting a concern with the possibility of residual constitutional foetal rights existing that might, through subsequent litigation, be found to frustrate or circumscribe the Oireachtas in legislating for abortion. The Joint Committee acknowledged that concern but, finding the risk of it materialising in ‘real life’ marginal, proposed instead a ‘repeal simpliciter’ that would delete Article 40.3.3 and not replace it with anything. We now hear that both the Taoiseach and, potentially, leader of Fianna Fáil Micheál Martin are concerned with the possible ramifications of repeal simpliciter, so that repeal and replace is firmly ‘back on the table’. In this post I outline (a) whether this is necessary, and (b) if it were to be pursued what the options are. Continue reading “Repeal and Replace?”

Repeal and Replace?