Opinion: Little will be gained if Citizens Assembly turns into a microcosm of broader abortion debate

Legal Professor, Fiona de Londras argues that for it to be useful, it should be oriented towards options for reform

Opinion: Little will be gained if Citizens Assembly turns into a microcosm of broader abortion debate

Fiona de Londras

The Taoiseach has announced that he will begin setting up the Citizens Assembly to consider the 8th Amendment next week. According to Mr Kenny, it is important that we don’t “rush” into a referendum on abortion; there is, he rightly notes, much to discuss. However, the composition and terms of reference for the Citizens Assembly will be key to how successful it is at informing the referendum that is surely to come in the next few years.

In terms of composition, we await confirmation of whether (and if so how) elected representatives will be selected. According to a recent story on The Journal, 42% of TDs did not respond when asked whether they were in favour of repealing the 8th Amendment and/or of holding a referendum.

The fact that it is difficult to know the starting position of a TD in advance is that it calls into question the wisdom of including TDs as members of the Assembly, but if they are to be included then pre-dispositions seem a relevant consideration in selecting members – provided the selection process isn’t random.

While the participation of elected representatives is not necessary to the success of the Assembly, transparency about selection if they are to be included surely is.

A second matter relates to the terms of reference for the Citizens Assembly.

It is not anticipated that the Assembly would propose the wording to be put to the people in a referendum, but it seems important that it would be able to consider at least two questions:

  • Should the referendum propose that the 8th Amendment be replaced with a positive statement of the right to autonomy and self-determination in medical decision-making, which would include but also go beyond abortion care and maternal medical in which pregnant women currently have limited choice, or simply that it be removed without replacement?
  • Should the Constitution itself place any limits on what the Oireachtas can do in terms of the regulation of abortion should the 8th Amendment be removed (e.g. by placing constitutional limits on term limits or grounds for accessing abortion), or should this be left as a matter of policy for the Oireachtas?

Neither of these questions is simple, but they should both be considered subject to a basic but important premise, i.e. that there will be a referendum of some kind. It is, surely, now beyond dispute that a referendum is needed so that the people can revisit this provision and their position on whether foetal life should have constitutional protection and, if so, of what type.

Given the complexity of these questions, it will be important that the Citizens Assembly is addressed by a wide and diverse body of experts who can provide insight into how abortion is regulated in other countries. There will no doubt be a temptation to invite speakers who hold declared pro-choice and anti-abortion positions per se.

However, it is not clear that such interventions would be particularly helpful. The Citizens Assembly is not intended to answer whether abortion should be legal in Ireland per se (that is for the people), but what the broad parameters of the constitutional amendment put to a referendum might be.

Thus, people with professional experience and knowledge of drafting legislation (including model legislation that has been proposed for Ireland), oversight responsibilities for similar legislation elsewhere, medical professional experience of the ‘workability’ of different grounds and limitations, for example, would all seem to be sensible types of experts to invite to address the Citizens Assembly.

Little will be gained if the Citizens Assembly turns into a microcosm of the broader debate on abortion per se; if it is to be useful, rather than a mere stalling exercise, it seems clear that it should have a purpose that is oriented towards discussing in broad terms the options for reform.

The details of the proposed reform might then be discussed in an Oireachtas Committee, informed by the views of the Citizens Assembly, but in the design of the Citizens Assembly it seems important to remember this: It is the people, not the Assembly or the Oireachtas, that determines the content of the Irish Constitution.

Whatever option is put before the People should give voters a real choice between the current legal regime and one that is more permissive in a meaningful way. If it can figure out how to do this, the Citizens Assembly will be a useful forum indeed.

Fiona de Londras is the Professor of Global Legal Studies at the University of Birmingham and one of the drafters of the Access to Abortion Bill 2015.