The referendum will ask us if we want to remove (repeal) Article 40.3.3 and insert additional wording allowing the Oireachtas to legislate for abortion in Ireland (enable). This is called ‘repeal and enable’.
What does ‘enable’ mean?
The ‘enable’ part means the Eighth Amendment will be replaced by a clause which states the Oireachtas will have full responsibility to legislate on this matter. For example: “That provision may be made by law for the regulation of termination of pregnancy.”
Why is that important?
There have been past legal arguments that suggest the Irish Constitution by its very nature is implicitly anti-abortion, even if the Eighth Amendment is removed from the Constitution. If the people vote explicitly to give power to the Oireachtas to legislate for the provision of abortion, it will be harder to legally challenge the new law.
So the law can never be challenged?
Laws will always be tested because of the importance of judicial oversight. But any judge would have to strongly consider the fact that the people have voted to give the Oireachtas full responsibility to make the laws on their behalf.
If the public vote yes
By removing Article 40.3.3 (the Eighth Amendment) we will be removing the absolute Constitutional ban on abortion in Ireland. This will not change the laws on abortion in Ireland immediately. But it will allow the Dáil to legislate for access to abortion care for women in Ireland.