The government has published a summary of the legal advice it got on the 8th amendment referendum.
The Attorney General believes it would be legally safer to insert a new article into the constitution if the 8th amendment was repealed.
This would give the Oireachtas the power to decide what the states abortion laws should be.
The AG believes a simple repeal would potentially leave any new laws open to legal challenges based on other rights contained in the constitution.
The advice explained that "There is no absolute certainty about the post-repeal
landscape of rights. If Article 40.3.3 were repealed simpliciter, it might subsequently
be argued before the Courts that the unborn have residual rights arising under other
Articles of the Constitution that could continue to restrict the power of the Oireachtas
to legislate on the issue."
"To mitigate the uncertainty that might arise in such circumstances, it was advised that
consideration should be given to inserting wording into the Constitution that expressly
affirms the right of the Oireachtas to legislate for the regulation of termination of
pregnancy", the Attorney General told the government.
