Professor Fiona de Londras:

I share Dr. Kenny's view that Mr. John O'Dowd was precisely right in his argument that the statements preceding 1983 were obiter.

For the sake of fairness and completeness, we should also note that we have two conflicting High Court judgments. I mentioned them on page 10 of the longer submission the committee has received from me - IRM v.Minister for Justice and Equality and Ugbelase and Ors v.Minister for Justice, Equality and Law Reform in 2009 - where there are conflicting dictaabout whether or not the right to life is the only constitutional right that the unborn, as the constitutional term goes, currently holds in Ireland, so there is a persistent uncertainty and I believe that it is under appeal to the Supreme Court.

On the question of whether legal certainty is the most important value, I think it is for this committee and eventually the electorate to decide on that but it is certainly not the exclusive value. That would be the first point I would make. Second, when thinking about legal certainty, it is important to consider what legal certainty might mean. In the context of the regulation of any form of health care, but let us say abortion for these purposes, there are various actors who need varying kinds of certainty. The Oireachtas needs some degree of certainty to know what it can do to the same extent as one knows in any case what one can do. The courts at least need some degree of clarity around what they think it is that the electorate might have meant. Medical practitioners need certainty about what they are permitted to do. As Ms O'Toole mentioned, public authorities with people in their care who may have pregnancies that they cannot or do not want to continue with need certainty about what they do. People who seek abortion care need certainty about what they can do. I am not sure any constitutional provision could secure certainty across all of those levels. It is a mixture of constitutional provisions, legislation, principles, working principles, protocols and so on that goes across a wide range of agencies.

Regarding the last point about whether repeal of Article 40.3.3^owould mean that the other rights which women hold under the Constitution would simply be reinvigorated, I agree entirely. I made that point in my submission that any idea that the right to life or competing right to life might have a form of primacy over those other rights not relating to life allows those rights to come back into the fold in a fuller sense and that is where proportionality analysis would come in, as it does in other rights-related situations.