The judgment of the Supreme Court overturning a High Court decision on the constitutional rights of the unborn, is a slam dunk for the State and clears a significant obstacle on the path to an early summer referendum.
Ministers were confident the court would set aside the findings of the High Court that the unborn had rights outside the Eighth Amendment of the Constitution - particularly - but not limited to - the children’s rights amendment - and that confidence was not misplaced.
It means that removing the Eighth Amendment - as the Government proposes - will remove the constitutional protection for the unborn and allow for the legalisation of abortion.
Had the court left any ambiguity on this question, it would have opened the prospect of legal challenges to any future abortion legislation. But the court, in a brief summary of its judgment delivered with clarity by the Chief Justice Frank Clarke, removed any doubt. The unborn do not have constitutional rights beyond the Eighth Amendment.
The Government will now finalise the wording for the referendum. It will propose the deletion of the existing Article 40.3.3 (ie, the Eighth Amendment) and replace it with what the Government calls an “enabling” provision - “Provision may be made by law for the regulation of termination of pregnancies.”
A Cabinet meeting will be held on Thursday to approve the wording of the provision and the Referendum Bill - which sets the legal basis for the referendum .
It is likely that the Dáil will hold a special sitting on Friday to begin debating this Bill, as it is scheduled to be in recess next week for the St Patrick’s Day break.
Once the Bill has been proposed in the Dáil, the Referendum Commission will be set up by the Government, which is also likely to happen on Friday.
It is understood a judge has been asked and agreed to chair the commission, which will oversee the campaign, provide information about the referendum to voters, commission an advertising campaign to publicise the vote, and so on.
A date for the referendum - which the Government hopes to schedule for May 25th - will not be set formally until the referendum bill has passed through the Dáil and the Seanad. However, the Bill is expected to pass through both Houses without difficulty.
Along with the Bill, Minister for Health Simon Harris will publish his policy paper on abortion, setting out the intended content of the legislation on abortion which will follow in the autumn if the referendum is passed.
This will be based largely on the report of the Oireachtas Committee and will include the promise to introduce abortion on request up to 12 weeks, and afterwards in specific circumstances such as where there is a threat to the mental or physical health of the woman, and in cases of fatal foetal abnormalities.
The proposing of the Bill in the Dáil, and the setting up of the Referendum Commission, will mark the formal beginning of the campaign. But as campaigners on both sides will tell you, it has in effect been underway for months. The Supreme Court judgment allows us to say with some confidence when it will end.
