Ms Mary O'Toole:

This exemplifies the juxtaposition of opinion. The belief is that simply repealing the eighth amendment and not replacing it with anything will lead to abortion on demand because women will have their right to bodily integrity reinstated, that is, their right to health and their right to life, and that there will be no right to life for the unborn. One side of the debate believes that would be the consequence of repealing the amendment without replacing it with any other provision. The other side of the debate believes that repealing will leave the right to life of the unborn as an inherent right in the Constitution and will lead to a circumstance where a woman's right to bodily integrity would be trumped by that right to life. Those are the two controversies.

We have had a lot of discussion over whether the pre-1983 position is correct or not. My conclusion is that it is very difficult to say whether the pre-1983 position will re-emerge, certainly in so far as the rights of the unborn are concerned. Professor de Londras said in her paper that if a woman's right to life and to bodily integrity were to come back to the fore, that there is no reason why the Legislature cannot modify those rights in the common good, just as they do with regard to other rights. This, however, is not regarded by the other side of the debate as sufficiently secure for their purposes. Again, there is a degree of uncertainty about exactly what would happen. To my way of thinking, the Citizens' Assembly wanted to start with a clean slate and to ask how do we do this. There are, of course, risks and benefits to each of those approaches. How one sees those risks and benefits would also hugely depend on where one is standing. It is the difficult task of this committee to look at that.

I think it very unlikely that abortion on demand would be the result of the repeal of the eighth amendment simpliciter. The whole ethos of the manner in which we deal with these issues in Ireland makes that an unlikely outcome. Certainly at present, however, an enormous deference is paid by the courts, as Dr. Kenny has said, to the views of the Legislature on how these rights should be balanced. That is the present reality and the Supreme Court has reiterated as recently as the MR & Anor v. An tArd Chláraitheoir & Ors decision on the surrogacy issue that it is a matter for the Legislature to balance these precarious rights. In the course of the X case Mr. Justice McCarthy complained that the Legislature has not introduced legislation as to how these rights are to be balanced and left it to the court. No, then, I do not think that a repeal would lead to abortion on demand. One is dealing, however, with the two views on each side as to what the consequences of repeal without replacement might be. One is trying to balance all of that.