Lynn Ruane (Independent) | Oireachtas source

I thank the witnesses for their contributions. Ms O'Toole's contribution was very useful. I hope my questions do not touch on some of what she spoke about. I did not have the submission beforehand, so I will try to reword them so that they are more appropriate.

I am going to focus on constitutional certainty and on the merits of repeal versus replace, especially since I note that in her presentation Professor de Londras suggested the option of a negative provision in the Constitution. It is an interesting point and I am eager to know what the others think of this.

To save time, I will indicate which witnesses my particular questions are for. My first question is for Professor de Londras and Dr. Kenny and relates to Mr. John O'Dowd's presentation to the Citizens' Assembly. He asserts that the judicial statements made before the insertion of the eighth amendment to the Constitution relating to any rights of the foetus may not be binding as they were not necessary for the decision in any of the relevant cases. Do Professor de Londras and Dr. Kenny agree with this assessment and do they think it could be the case in any post-repeal judicial decisions on the right to life of the foetus?

Professor de Londras and perhaps the other witnesses could comment on the next two questions. Is trying to achieve legal certainty the most important value to consider when amending the Constitution? The eighth amendment, particularly the X case, has prevented the courts from considering all of the pregnant woman's rights in abortion cases. Is it fair to say that if the eighth amendment is removed those rights are reinvigorated and cannot be suspended?

My next question is to Dr. Kenny and Ms O'Toole because Professor de Londras outlined this matter in her presentation. Does she think a referendum on wording which repeals Article 40.3.3o instead of replacing it to include explicit exceptions-based grounds for abortion such as in cases of fatal foetal abnormality, rape, incest, or risk to health in the Constitution is a strong legal construct in the overall framework of constitutional, judicial and legislative laws.

This question is directed to Dr. Kenny who in his opening statement said it was not improper to exclude certain areas in the Constitution from judicial consideration and listed emergency legislation, among other legislation, as an example of such an area. Does he think that abortion legislation should be treated in the same way, constitutionally, as laws passed when the State is under threat or at war? It seems unusual to me that it would. I would like to hear his justification for continuing to treat abortion as an exceptional constitutional case.

My next question is for Ms O'Toole. There have been many high profile cases and ones in which she has been involved directly. Can she tell us more about the cases which make it to the court and maybe where legal advice is sought and where the treatment during pregnancy is not in relation to abortion but the wider issue on how the wording of eighth amendment has had an impact? We have heard her evidence today on the likelihood of various post-repeal judicial review scenarios. Given that she has direct experience in legal practice of how the Judiciary has previously balanced those rights between a pregnant woman and foetal life in the Constitution, what is her professional opinion on the status of a constitutional right to life of a foetus following a potential deletion of Article 40.3.3o and how would it be balanced against the rights of a pregnant woman?