Ms Mary O'Toole:

Yes, if there was repeal, the court would, as part of its deliberations try to decide what the meaning and effect of the repeal was. This has happened in other cases where the court had to look at the effect of a provision that had been changed by referendum. The court would try to see what the objective was in repealing. The issue is the uncertainty about the conclusions it would come to. It would obviously conclude that the eighth amendment was to be taken out of the Constitution so that the right to life of the unborn was not going to be an explicit constitutional right, and then there is the balancing right to life of the woman, except that the woman's rights to life and probably to bodily integrity would be part of the ordinary constitutional values. What is unknown in that scenario is whether, notwithstanding that repeal, the court might take the view that there was still some residual unenumerated rights in regard to the unborn. There are commentators who believe that is an unlikely outcome and those who believe it is impossible to call. As Dr. Kenny has said, it is very difficult to say with certainty but yes, the courts would discuss what the amendment meant, what it was intended to achieve and be guided by that.

It is very difficult to know. For instance, in the C case, Mr. Justice Geoghegan decided that the right to travel amendment did not create an independent right to travel for an abortion. It depends on how clear what was intended is and how one can bring before the court, in the midst of the competing views that happen at the time of a referendum, what it was intended to achieve.