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Abortion - Report of the Joint Committee on the Eighth Amendment of the Constitution

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  • #212
    NuMarvel
    Registered Users, Registered Users 2 Posts: 3,279 ✭✭✭NuMarvel


    end of the road wrote: »
    the constitution is perfectly fine. it recognises the right of the unborn to life and the state will try and protect as much as it can. it also recognises that it can't stop people from traveling. that's not hypocritical, just recognising the realities.

    Incorrect. Up until 1992, the Constitution could be used to prevent someone from accessing abortion outside the State. We even did it once, so it's effectiveness is a reality.
    end of the road wrote: »
    the 8th has plenty of reasons for repeal but access to abortion on demand, something one doesn't have a right to, is not that reason.

    Repeal doesn't create a right to abortion on demand, so this is irrelevant. If the 8th is repealed, it will still be the law that abortion is criminalised except when the woman's life is at risk. The Protection of Life During Pregnancy Act will still be in place until it's changed, repealed or struck down.


  • #213
    end of the road
    Registered Users, Registered Users 2 Posts: 29,494 ✭✭✭✭end of the road


    NuMarvel wrote: »
    Incorrect. Up until 1992, the Constitution could be used to prevent someone from accessing abortion outside the State. We even did it once, so it's effectiveness is a reality.



    Repeal doesn't create a right to abortion on demand, so this is irrelevant. If the 8th is repealed, it will still be the law that abortion is criminalised except when the woman's life is at risk. The Protection of Life During Pregnancy Act will still be in place until it's changed, repealed or struck down.


    the reality is that once repeal happpens abortion on demand with no question will be legislated for. it's an absolute given IMO.

    I'm very highly educated. I know words, i have the best words, nobody has better words then me.



  • #214
    NuMarvel
    Registered Users, Registered Users 2 Posts: 3,279 ✭✭✭NuMarvel


    end of the road wrote: »
    the reality is that once repeal happpens abortion on demand with no question will be legislated for. it's an absolute given IMO.

    Exactly. Rights to abortion will arise from legislation , not repeal itself. Repeal doesn't create a right to abortion to demand, it just removes the barrier to being able to legislate for abortion in anything but extreme circumstances.

    And it's not a given that the laws recommended by the Committee on the 8th would pass a vote in the Oireachtas after repeal. FF and FG TDs will have a free vote so it's anyone's guess what way they'll vote, especially FF. SF TDs will likely abstain. The majority of the rest will likely vote in favour, but that's nowhere near enough to make the legislation a sure thing.


  • #215
    Itssoeasy
    Registered Users, Registered Users 2 Posts: 40,972 ✭✭✭✭Itssoeasy


    end of the road wrote: »
    the reality is that once repeal happpens abortion on demand with no question will be legislated for. it's an absolute given IMO.

    No it's not a given. Having watched the committee even the TDs who moved slightly from a pro life stance like Anne Rabbitte of Fianna Fail moved but still didn't vote for Abortion on demand from what I remember. Bernard Durkan said straight out he's against abortion at least once, and other members were not comfortable with Abortion, but I think it was Ned O Sullivan of Fianna Fail who said "we need to trust the women of Ireland."

    Also remember Sinn Fein as a party are opposed to abortion which lead to it's members of the 8th Amendment to abstain on some of the votes, and they are not as far as I know giving a free vote to it's TDs and Senators in I'm assuming will be a vote on any legislation.

    So to say it's all a certainty is a bit premature EOTR. Also as has been said there will be legislation to be passed if the 8th Amendment is repealed.


  • #216
    Itssoeasy
    Registered Users, Registered Users 2 Posts: 40,972 ✭✭✭✭Itssoeasy


    Well jaysus lads has my last post completely off the wall wrong or is there nothing either side can disagree with ? 😂


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  • #217
    MrPudding
    Registered Users, Registered Users 2 Posts: 9,779 ✭✭✭MrPudding


    recedite wrote: »
    I'll just point out that the constitution absolutely is a place for laws, that's what it is made of.
    And its very easy to change. Whoever is an interested citizen shows up on polling day and casts a vote. Then its done.

    Constitutional laws tend to be broader in scope than legislation, and are approved by the people directly as opposed to being approved by politicians representing the people.

    Nonsense. The entire point of a constitution is that it is difficult to change.

    MrP


  • #218
    MrPudding
    Registered Users, Registered Users 2 Posts: 9,779 ✭✭✭MrPudding


    recedite wrote: »
    Yes, mainly that murder is illegal in Amsterdam.
    But you can get an abortion or smoke cannabis in Amsterdam and be completely immune to any prosecution when you return to Ireland.
    Because nothing illegal has been done in either jurisdiction.

    But that does not have to be the case. It is possible to have legislation that criminalising act in a foreign jurisdiction, even where the particular act is legal in that foreign jurisdiction.

    In the UK the Bribery Act 2010 makes bribery an offence, prosecutable in the UK, irrespective of where in the world the act took place, and irrespective of the legality of the act in the jurisdiction where it took place.

    The UK also has a law making it an offence to have sex with a child in a foreign country, again, even where it is legal to have sex with children in that country where the act took place.

    It is undoubtedly possible that laws could be enacted to allow prosecution of women that get abortions in other countries. But for some reason, no one is asking for it...

    MrP


  • #219
    recedite
    Closed Accounts Posts: 13,989 ✭✭✭✭recedite


    MrPudding wrote: »
    Nonsense. The entire point of a constitution is that it is difficult to change.
    MrP
    No, the point is to set the boundaries within which the parliament (Dail) can legislate.
    MrPudding wrote: »
    It is undoubtedly possible that laws could be enacted to allow prosecution of women that get abortions in other countries. But for some reason, no one is asking for it...
    Yes. Unusual situations but true. However that is not what people were suggesting earlier on this thread. It was suggested that the right to travel would be affected if constitutional protection of the unborn was serious, and therefore some level of hypocrisy was implied.
    But that would be a form of thoughtcrime. Your suggestion now is that laws could be enacted to allow prosecution of women after they have got abortions abroad, and then returned to Ireland.
    Yes you are right, the 8th amendment probably would allow such laws. On the other hand it does not require them, and there never seems to have been any appetite among public or politicians to introduce a law that would be generally unworkable. For a start there would be no evidence available in this jurisdiction that it was abortion and not miscarriage.


  • #220
    MrPudding
    Registered Users, Registered Users 2 Posts: 9,779 ✭✭✭MrPudding


    recedite wrote: »
    No, the point is to set the boundaries within which the parliament (Dail) can legislate.
    Indeed, and being set up so that it is difficult to make changes. The Dail can change legislation really easily. Th epoint of a Consitution is that the government of the day cannot change stuff willy nilly because, well, it is difficult to change.
    recedite wrote: »
    Yes. Unusual situations but true. However that is not what people were suggesting earlier on this thread. It was suggested that the right to travel would be affected if constitutional protection of the unborn was serious, and therefore some level of hypocrisy was implied.
    But that would be a form of thoughtcrime. Your suggestion now is that laws could be enacted to allow prosecution of women after they have got abortions abroad, and then returned to Ireland.
    Yes you are right, the 8th amendment probably would allow such laws. On the other hand it does not require them, and there never seems to have been any appetite among public or politicians to introduce a law that would be generally unworkable. For a start there would be no evidence available in this jurisdiction that it was abortion and not miscarriage.
    The point being made is that there seems to be no appetite for it, even form those that profess to want to protect the unborn.

    If there was an appetite and a willingness to do it, it could be done and could be workable. If we take the example of the Bribery Act 2010 in the UK, there would be no evidence in the UK that bribery took place, but there would be evidence in other countries, and the government can get that information.

    If a woman goes to the UK for an abortion there will be a record of that. As much as the anti-choicers might like us to think, it is not a free for all in the UK. Names are taken and records are kept. All that would be required is a little co-operation from the UK authorities and we could have 100% solid proof that an abortion took place.

    Would it be easy? No. it would be difficult, but we are talking about the murder is innocent babies here. Would saving their live not be worth a little effort?

    MrP


  • #221
    end of the road
    Registered Users, Registered Users 2 Posts: 29,494 ✭✭✭✭end of the road


    MrPudding wrote: »
    Indeed, and being set up so that it is difficult to make changes. The Dail can change legislation really easily. Th epoint of a Consitution is that the government of the day cannot change stuff willy nilly because, well, it is difficult to change.


    The point being made is that there seems to be no appetite for it, even form those that profess to want to protect the unborn.

    If there was an appetite and a willingness to do it, it could be done and could be workable. If we take the example of the Bribery Act 2010 in the UK, there would be no evidence in the UK that bribery took place, but there would be evidence in other countries, and the government can get that information.

    If a woman goes to the UK for an abortion there will be a record of that. As much as the anti-choicers might like us to think, it is not a free for all in the UK. Names are taken and records are kept. All that would be required is a little co-operation from the UK authorities and we could have 100% solid proof that an abortion took place.

    Would it be easy? No. it would be difficult, but we are talking about the murder is innocent babies here. Would saving their live not be worth a little effort?

    MrP


    the uk authorities would never co-operate with ireland on such an issue. it's not workible hence nobody is campaigning for it as the burdin of proof put on the authorities to provide evidence would be beyond reasonable expectation.

    I'm very highly educated. I know words, i have the best words, nobody has better words then me.



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  • #222
    MrPudding
    Registered Users, Registered Users 2 Posts: 9,779 ✭✭✭MrPudding


    end of the road wrote: »
    the uk authorities would never co-operate with ireland on such an issue. it's not workible hence nobody is campaigning for it as the burdin of proof put on the authorities to provide evidence would be beyond reasonable expectation.

    How do you know? Have you asked them? The UK authorities need all the friends they can get right now, who knows how accommodating they might be. Besides, we are talking about murder here. Surely the government should try. It is murder. Of babies.

    MrP


  • #223
    NuMarvel
    Registered Users, Registered Users 2 Posts: 3,279 ✭✭✭NuMarvel


    end of the road wrote: »
    the uk authorities would never co-operate with ireland on such an issue. it's not workible hence nobody is campaigning for it as the burdin of proof put on the authorities to provide evidence would be beyond reasonable expectation.

    It's entirely workable. It's just not palatable, especially to anti-repealers. The country was in uproar when we put the injunction on the girl in the X Case; if we did something similar on just 5% of the women who travelled, people would be demanding repeal of the 8th within weeks.

    The resistance of anti-repealers to stopping or criminalising women who travel is nothing to with practical reasons and everything to do with tactical reasons.


  • #224
    recedite
    Closed Accounts Posts: 13,989 ✭✭✭✭recedite


    MrPudding wrote: »
    Indeed, and being set up so that it is difficult to make changes. The Dail can change legislation really easily.
    MrP
    A bill must pass through multiple readings and stages, usually with amendments added, and then go to the Seanad, usually over several months.
    A referendum can be decided in one day by the people. The real difference is in who makes the decision; the people or the parliament.
    MrPudding wrote: »
    How do you know? Have you asked them? The UK authorities need all the friends they can get right now, who knows how accommodating they might be. Besides, we are talking about murder here. Surely the government should try. It is murder. Of babies.
    I have not asked them, but it seems obvious to me the NHS would not cooperate in the prosecution of their patients regarding services provided by the NHS. For private clinics it would be extremely bad for business.

    But why don't you ask, seeing as you are the one advocating it?


  • #225
    end of the road
    Registered Users, Registered Users 2 Posts: 29,494 ✭✭✭✭end of the road


    MrPudding wrote: »
    How do you know? Have you asked them? The UK authorities need all the friends they can get right now, who knows how accommodating they might be. Besides, we are talking about murder here. Surely the government should try. It is murder. Of babies.

    MrP


    considering the british refuse to be accommodating in terms of the murders of civilians they were responsible for during the troubles either directly at their hands or via their loyalist proxies, why would they be accommodating in relation to the killing of the unborn from ireland?
    the reality is the burdin of proof upon the irish authorities in terms of abortion would be so hard to put together that it would be unreasonable to expect it.
    NuMarvel wrote: »
    It's entirely workable. It's just not palatable, especially to anti-repealers. The country was in uproar when we put the injunction on the girl in the X Case; if we did something similar on just 5% of the women who travelled, people would be demanding repeal of the 8th within weeks.

    it's not workable though. considering the government refuse to enforce existing laws to the best of their ability, then the people demanding repeal would be unlikely to get anywhere even if the authorities were to try and fail to prosecute those traveling for abortion.
    NuMarvel wrote: »
    The resistance of anti-repealers to stopping or criminalising women who travel is nothing to with practical reasons and everything to do with tactical reasons.

    no it's to do with reality. the burdin of proof required would be such that it would be unreasonable to expect the authorities to provide it, given that the woman could just as easily have had a miscarriage.

    I'm very highly educated. I know words, i have the best words, nobody has better words then me.



  • #226
    NuMarvel
    Registered Users, Registered Users 2 Posts: 3,279 ✭✭✭NuMarvel


    end of the road wrote: »
    it's not workable though. considering the government refuse to enforce existing laws to the best of their ability, then the people demanding repeal would be unlikely to get anywhere even if the authorities were to try and fail to prosecute those traveling for abortion.

    You're just repeating your comments without addressing my points. You say it's not workable, but ignore the reference I made to the one time the government tried it and it worked. Like it or not, it could be done. Even if Mr P's specific example wouldn't work, I've previously listed other ways, all based one precedent in Irish law. If I can do that, you can be certain the legal experts in the pro life campaigns can do it too.


  • #227
    end of the road
    Registered Users, Registered Users 2 Posts: 29,494 ✭✭✭✭end of the road


    NuMarvel wrote: »
    You're just repeating your comments without addressing my points. You say it's not workable, but ignore the reference I made to the one time the government tried it and it worked. Like it or not, it could be done. Even if Mr P's specific example wouldn't work, I've previously listed other ways, all based one precedent in Irish law. If I can do that, you can be certain the legal experts in the pro life campaigns can do it too.

    i am not repeating myself as i don't repeat myself. i have tried to address your points, i except you may not like the answer i gave which is fair enough.
    i'm suggesting that the reality is that just because the government tried it before, it doesn't mean they would be in a position to try it again, due to the fact that the burdin of proof for cases has increased in the years since the case you reference.

    I'm very highly educated. I know words, i have the best words, nobody has better words then me.



  • #228
    NuMarvel
    Registered Users, Registered Users 2 Posts: 3,279 ✭✭✭NuMarvel


    end of the road wrote: »
    i am not repeating myself as i don't repeat myself. i have tried to address your points, i except you may not like the answer i gave which is fair enough.
    i'm suggesting that the reality is that just because the government tried it before, it doesn't mean they would be in a position to try it again, due to the fact that the burdin of proof for cases has increased in the years since the case you reference.

    This is the first I've heard of it, and I've worked in the legal field for nearly 15 years now. Please, tell us how the burden of proof has changed to such a degree that the state wouldn't be able to do now what they did back in 1992.


  • #229
    recedite
    Closed Accounts Posts: 13,989 ✭✭✭✭recedite


    NuMarvel wrote: »
    Even if Mr P's specific example wouldn't work, I've previously listed other ways, all based one precedent in Irish law.
    Remind us what exactly you are talking about.


  • #230
    NuMarvel
    Registered Users, Registered Users 2 Posts: 3,279 ✭✭✭NuMarvel


    recedite wrote: »
    Remind us what exactly you are talking about.

    I thought I'd posted them here, but it was actually in the After Hours thread.

    In summary, absent the 13th and 14th amendments, you could:

    1 -Seek injunctions on travel or having an abortion abroad, similar to injunction brought in the X Case. An injunction could feasibly be brought by anyone, not just the state, and breaching the injunction could see the woman facing fines and/or prison sentences.

    2 - Criminalise the act of arranging an abortion. This would be similar to the laws on assisted suicide which makes it an offence to arrange the suicide of another person, even if it's due to take place outside the state.

    3 - Criminalise the distribution of information about abortion, as was the case prior to 1995. This could easily apply to print or online publications.

    All of this could be done in addition to Mr P's suggestion, which has similarities to our Sexual Offences (Jurisdictions) Act.


  • #231
    NuMarvel
    Registered Users, Registered Users 2 Posts: 3,279 ✭✭✭NuMarvel


    According to the Irish Times, the Committee’s report is due to be discussed by the Cabinet at its meeting this morning, and the Health Minister is likely to seek formal cabinet approval before the end of the month for a referendum. The Dept of Health is also continuing to work on draft legislation to legalise abortion on request within the first 12 weeks.

    What stood out for me was this part:
    However, it is not yet clear what the wording of such a referendum would be. According to sources familiar with the issue, the Government is awaiting legal advice from the Attorney General before it decides whether to propose deleting article 40.3.3 – which guarantees the equal right of the unborn child and the mother – of the Constitution entirely, or whether it will propose replacing the article with another article specifically authorising the Oireachtas to legislate on the issue.

    A replacement article specifically authorising the Oireachtas to legislate was the Assembly’s recommendation. However, the committee recommended straight forward repeal, as the Constitution already grants the Oireachtas the power to legislate, and a replacement article may deny people access to a judicial review that they would be entitled to in any other matter.

    My preference would be for the former, but I’d vote in favour of either proposition in a referendum.


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  • #232
    Hotblack Desiato
    Registered Users, Registered Users 2 Posts: 37,208 ✭✭✭✭Hotblack Desiato


    Is there not the risk that (following complete repeal without replacement) a court could find that an implicit right to life for the foetus exists elsewhere in the constitution?

    I'm partial to your abracadabra,

    I'm raptured by the joy of it all.



  • #233
    Hotblack Desiato
    Registered Users, Registered Users 2 Posts: 37,208 ✭✭✭✭Hotblack Desiato


    recedite wrote: »
    A bill must pass through multiple readings and stages, usually with amendments added, and then go to the Seanad, usually over several months.
    A referendum can be decided in one day by the people. The real difference is in who makes the decision; the people or the parliament.

    You're forgetting that for the people to get the chance to vote in the first place, the referendum bill has to go through all the usual legislative steps first. The people only get to vote on a question if the government allows them to.

    Secondly you are overlooking that any legislative change required to give effect to a constitutional amendment has to go through all the usual parliamentary steps, which may never happen at all.

    We voted in 1979 to allow the Seanad electorate to be broadened (7th Amendment) to date nothing has been done. It took over 20 years for the Oireachtas to finally give legislative effect to the X Case Supreme Court decision.

    I'm partial to your abracadabra,

    I'm raptured by the joy of it all.



  • #234
    oscarBravo
    Technology & Internet Moderators Posts: 28,850 Mod ✭✭✭✭oscarBravo


    Hotblack Desiato wrote: »
    Is there not the risk that (following complete repeal without replacement) a court could find that an implicit right to life for the foetus exists elsewhere in the constitution?

    It's possible, but I think that the Supreme Court would have to take into account the people's wishes in repealing the 8th.


  • #235
    ForestFire
    Registered Users, Registered Users 2 Posts: 2,964 ✭✭✭ForestFire


    Why is it always discussed how 'the' question will be formed?

    Also regarding Leo's comment that the question might be taking to far a step?

    Can the referendum not pose more that one question? Or a range of answers like.....

    Do you a agree that abortion should allowed
    A) never (or as it currently stands)
    B) up to 4 weeks
    C) up to 6 weeks
    D) 8
    E) 10
    F) 12
    .
    .
    .
    O) 30 weeks
    ?

    Then you pick the number that has 50% for that and above?


  • #236
    volchitsa
    Registered Users, Registered Users 2 Posts: 9,640 ✭✭✭volchitsa


    I gather the referendum can only ask a single yes/no question.

    ”I enjoy cigars, whisky and facing down totalitarians, so am I really Winston Churchill?” (JK Rowling)



  • #237
    Edward M
    Closed Accounts Posts: 1,837 ✭✭✭Edward M


    volchitsa wrote: »
    I gather the referendum can only ask a single yes/no question.

    If so does that mean we would be asked to repeal or not the eighth?
    Would repeal then mean it would be up to government to legislate for how any termination would be allowed to take place?
    I had thought it might contain two options, one for the status quo, and one which would allow whatever terms or conditions abortion might be allowed in and we would get to choose which option we might favour.


  • #238
    NuMarvel
    Registered Users, Registered Users 2 Posts: 3,279 ✭✭✭NuMarvel


    Hotblack Desiato wrote: »
    Is there not the risk that (following complete repeal without replacement) a court could find that an implicit right to life for the foetus exists elsewhere in the constitution?

    It's possible, but I don't think anyone considers it likely. At least, not to the point that it wouldn't let us legislate to allow wider access to abortion. If it was, the pro life groups wouldn't have sought the 8th in the first place, and pro choice groups and politicians would be seeking something than straight forward repeal.
    Edward M wrote: »
    If so does that mean we would be asked to repeal or not the eighth?
    Would repeal then mean it would be up to government to legislate for how any termination would be allowed to take place?
    I had thought it might contain two options, one for the status quo, and one which would allow whatever terms or conditions abortion might be allowed in and we would get to choose which option we might favour.

    The constitution doesn't allow for referendums other than those with a yes/no answer, so we can't have the kind of referendum you're talking about.

    The ballot paper itself will be about what's in the constitution and ask if we're in favour or against the constitutional change that's being proposed. Strictly speaking, that's what we're voting on.

    At the same time, the government will publish a draft or outline of intended post-change legislation. Realistically, that'll form the basis of much of the debate and will inform many people's decision on their actual vote. Obviously though, the final version of that legislation will be decided by TDs and Senators.

    Unless they're part of the proposed constitutional change, you won't get a chance to vote directly on the specific reasons or timeframes that abortion is allowed. There would be nothing technically stopping the Government giving you a second paper to gauge your opinions on the various reasons and timeframes, like the one the Assembly voted on, but it cause more confusion that it's worth. Especially when it will simply be a glorified opinion poll that has no legal weight.


  • #239
    ForestFire
    Registered Users, Registered Users 2 Posts: 2,964 ✭✭✭ForestFire


    Edward M wrote: »
    If so does that mean we would be asked to repeal or not the eighth?
    Would repeal then mean it would be up to government to legislate for how any termination would be allowed to take place?
    I had thought it might contain two options, one for the status quo, and one which would allow whatever terms or conditions abortion might be allowed in and we would get to choose which option we might favour.

    I guess the single question can have multiple changes, but in the end you have to agree or disagree with it all, so for example:-

    Do you agree to repeal the 8th and replace it with subsection "x.yy.z" as per the "some document" that allows abortion in "these Case" up to and including 12 weeks.

    Yes or No?

    My point is they have to fix the number of weeks prior to referendum, so in this case 60% of the population might say, 12 weeks is a bit much, I would have been happy with 10 but not 12 - NO


  • #240
    Itssoeasy
    Registered Users, Registered Users 2 Posts: 40,972 ✭✭✭✭Itssoeasy


    Well given Leo Varadkars comments yesterday evening it seems he's less willing to state his position. It seems the cabinet is split(hardly surprising) and him mentioning the 12 weeks without restriction(I don't like the phrase on demand, It's a foetus not a film on netflix) seems to suggest that the cabinet took the temperature of their constituents over christmas and clearly it wasn't the overwhelming agreement he expected.

    This makes the wording of the question asked of the people even more important.


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  • #241
    Hotblack Desiato
    Registered Users, Registered Users 2 Posts: 37,208 ✭✭✭✭Hotblack Desiato


    There were always going to be 2 or 3 in the cabinet opposed, that's not a surprise.

    I'm partial to your abracadabra,

    I'm raptured by the joy of it all.



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