Abortion referendum: The big questions Cabinet must answer

Abortion will be the focus of a two-day debate in the Dáil later this week, in which TDs will give their reactions to the report of the Oireachtas Committee on the Eighth Amendment.

The committee, chaired by Fine Gael’s Senator Catherine Noone, recommended repeal of the constitutional ban on abortion and the legalisation of terminations on request up to 12 weeks in its report before Christmas.

The Taoiseach Leo Varadkar has said that he believes Ireland’s laws are too restrictive; the Minister for Health Simon Harris and several other Ministers have said that they favour repeal of the Eighth Amendment, and the Government is planning for a referendum to take place at the beginning of the summer.

However, no formal decisions have yet been made, and there remain several political and legislative stages to be completed before any liberalisation of Ireland’s strict anti-abortion laws is possible.

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Although the Dáil will debate the committee’s report for 5½ hours on Wednesday and Thursday, deputies will not be asked to vote on its recommendations.

In fact, a Dáil vote on the holding of the referendum is not expected to happen until late March. And a vote on the proposal for the legalisation of abortion up to 12 weeks cannot happen unless the referendum is passed, and not then until the autumn at the earliest.

Although many TDs – especially in Fine Gael and Fianna Fáil –did not declare their views when asked by The Irish Times last week, it's expected that many of those TDs will use the Dáil statements to make their position clear this week.

That may or may not include Fine Gael leader Varadkar and Fianna Fáil leader Micheál Martin, who have not yet put their positions on the record. Both men will be under pressure from their parties and the media to state their positions soon.

Three questions

Once this week’s debate is concluded, the next stage of the process will occur probably within the next fortnight to three weeks, when Simon Harris will seek decisions from the Cabinet on three questions.

First he will seek a decision in principle to hold a referendum on the repeal or replacement of the Eighth Amendment. The Government is still awaiting legal advice from the Attorney General on whether to simply repeal article 40.3.3 of the Constitution (as the Eighth Amendment is incorporated in the text), or to replace it with an article specifically empowering the Oireachtas to legislate on the subject.

The intention of such a replacement – rather than straight repeal – would be to make the process bullet-proof from legal challenge, although some politicians fear this approach could be messy and lead to unforeseen consequences. Either way, this decision is likely to be made soon, insiders say.

Secondly, Mr Harris will seek – on foot of the decision in principle to hold a referendum – the agreement of the Cabinet to begin drafting a referendum Bill, which must pass through the Dáil and Seanad before a referendum vote can take place.

At this stage the Cabinet will also have to agree the wording of the question to be put to the people. On the evidence of the Irish Times tracker of TDs and Senators voting intentions, passage of the referendum Bill is a foregone conclusion.

Even many TDs who are opposed to repealing the eighth say they believe the people should have a say on the matter in a referendum. The Government is targeting that the referendum Bill be passed through all stages in the Dáil and Seanad by the end of March.

Thirdly, Harris will seek the Cabinet’s agreement to draft the heads of a Bill to liberalise the law on abortion. In effect this work is already taking place, given Cabinet discussed it last week, but the Minister will seek formal permission to proceed with the drafting of the bill.

Subject to the Cabinet’s agreement, this Bill will be intended to give legal effect to many of the recommendations of the Oireachtas Committee – most notably the legalisation of abortion on request up to 12 weeks. The heads of this Bill – a truncated version explaining the intention of all the sections – will be published to allow people to see the Government’s intention for the future legal landscape of abortion, but it cannot be introduced to the Dáil unless the referendum is passed. Even then, because the Government does not have a majority in the House, the Dáil will amend, accept or reject the legislation as it sees fit.

Referendum Commission

Once the referendum Bill is introduced in the Dáil, a Referendum Commission can be set up. The commission, chaired by a judge of the higher courts, will be responsible for explaining the proposition to the electorate in a nonpartisan way.

A guide to the referendum will be circulated to every home in the State, while newspaper, television, radio and online advertising campaigns will be drawn up by the commission.

The working date for the referendum in Government circles is May 25th, even though no formal decision has been reached yet. However, sources say that date is likely to slip into June, with Friday, June 8th, considered the most likely polling day.

If the referendum is defeated, the Constitution remains as it is today, and no law further legalising abortion can be passed by the Oireachtas. However, if the referendum is passed, the Government’s Bill on abortion is likely to be introduced in the autumn.