A ‘Yes’ vote in the coming referendum would remove all constitutional rights from each unborn child up to birth. In place of the existing protection, the Oireachtas would have complete power to legislate for abortion.
The Government has published its plans for legislation in this event and more than 175 of our colleagues in the legal profession have signed and published a statement which makes it clear that these proposals will open the door to abortion in a wide range of circumstances. We will now consider that draft legislation :
First, the Government proposes to provide for abortion for any reason during the first 12 weeks of pregnancy. This is the main difference between the abortion legislation in Great Britain and the Government’s proposed legislation : in Great Britain, the legislation is more restrictive, since there is no 12 week period when an abortion can be carried out for any reason.
Second, the Government’s proposals for abortion up until viability (that is , for the first 6 months of pregnancy) will allow termination for reasons so similar to the legislation in Great Britain that there is no rational basis for thinking that they would operate differently in this jurisdiction, if adopted:
- The Government’s draft legislation justifies termination where there is a risk of serious harm to the physical or mental health of the mother. Legislation in Great Britain refers to a risk of injury to the physical or mental health of the mother. The similarity between the two is immediately obvious;
- “Mental health” is not defined in the proposed Irish legislation. In Great Britain the overwhelming majority of abortions are carried out on the mental health ground;
- “Serious harm” as a criterion in the proposed Irish legislation is a far more general and imprecise term than “injury” which is the term used to give a legal entitlement to an abortion in Great Britain in such circumstances; and
- Under the Government’s proposed legislation, medical practitioners need only be of opinion that the carrying out of an abortion is “appropriate” and not “necessary” as one might have expected.
Where a healthy mother requests the abortion of her healthy baby after, say, 21 weeks because she believes that the stress of carrying the baby to term poses a risk of serious harm to her mental health, the effect of this Governments’ proposals is made clear. Furthermore, the statements of a number of prominent experts campaigning for a ‘Yes’ vote confirm that the result of the legislation will be abortion on request.
Our original statement, which we signed along with our colleagues, noted that any legislation adopted by the Oireachtas on this matter may be subsequently changed at any time in the future without the consent of the People.
Former Judge of the High Court of Ireland and Chairman of the Referendum Commission (Lisbon Treaty)
Aindrias Ó Caoimh
Former Judge of the High Court of Ireland and Judge of the European Court of
Bryan McMahon LL.M PhD LL.D(Hon)
Former Judge of the High Court of Ireland and Former Chairman of the Referendum Commission
MA LLB MLitt, Barrister
LL.B LL.M Barrister
Mary Faulkner, Barrister
Former Dean of the School of Law, Honourable Society of the Kings Inns, Dublin
Benedict Ó Floinn
MA (Oxon) Barrister
Author of Practice and Procedure in the Superior Courts, Former Member of the Education Committee of the Kings Inns and the Expert Committee on the Courts Acts.