Dr. Andrea Mulligan:

I agree with Dr. Casey on the reasons for the unusual clause in regard to the eighth amendment. It is important to bear in mind that the eighth amendment was a very unusual constitutional situation. It was a situation whereby an express right, that is, the right to life of the unborn, was being removed. As I understand it, the reason for the insertion of the specific clause enabling the Legislature to legislate was the concern that, in essence, the unborn had unenumerated rights to life outside of the eighth amendment. There might have been a situation whereby if the eighth amendment was repealed and termination of pregnancy was legislated for, there might yet be other unenumerated constitutional rights that would, in effect, mean that legislation might be unconstitutional.

In essence, that provision was there to provide some kind of constitutional insulation against that situation. There is also the Supreme Court case of I.R.M v. Minister for Justice and Equality, which was decided just leading up to the referendum in March 2018 and deals with that particular issue. It is a complicated issue of constitutional law. For the committee’s purposes, the key issue is that it probably was necessary - I know Dr. Hickey thinks it was not necessary – in that situation and it is certainly not necessary here. The answer is simple for the committee.