A Proposal for Constitutional Change
'For more than 30 years the Constitution has prevented the Oireachtas from introducing evidence-based legislation on abortion in Ireland; constitutional change is urgently required.'
Article 40.3.3 of the Irish Constitution protects the right to life of “the unborn”. Abortion is only permitted where there is a real and substantial risk to the life of the pregnant woman, as legislated for by Article 40.3.3 and the Protection of Life During Pregnancy Act 2013. The current constraints on abortion in Ireland are so restrictive, they violate international human rights law.
The Citizens' Assembly, consisting of 100 citizen members, considered Article 40.3.3 with the benefit of expert, factual, independent advice. In April 2017, they delivered their recommendation: Remove Article 40.3.3 and replace it with a provision that empowers the Oireachtas to legislate for abortion while taking account of any rights of the pregnant woman or the foetus.
This briefing by Birmingham Law School's Professor Fiona de Londras asserts that the proposal of a short, clear provision in a referendum should be endorsed by the Oireachtas. Such a provision would provide that “Nothing in this Constitution prohibits abortion as provided for by law”. It also emphasises that it is ill-advised to explicitly reference foetal rights in any new constitutional provision proposed in a referendum.