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Repealing The Eighth Amendment

“It’s just one man’s opinion, but it’s my opinion and I reserve the right, above all others, to hold that opinion.”

The movement to ‘Repeal the Eighth Amendment’ is certainly gathering momentum, and various categories of unborn babies are facing an increasing prospect of being legally aborted within Ireland. The law already allows the abortion of the children of suicidal mothers (subject to certification by three professionals that the case comes within the parameters of the Protection of Life in Pregnancy Act 2013), and the danger of abortion is extended by the same Act to children of mothers whose lives are in danger from the pregnancy in the opinion of two professionals in ordinary cases, or just one in emergency cases.

Ms Justice Mary Laffoy Chairperson of the 100-member convention taxed with considering issues including the Eighth Amendment.

The protagonists of the ‘Repeal’ campaign aim to further extend legal abortion in Ireland to other tragic cases, for example, unborn children suffering from a fatal foetal anomaly, anencephaly, various chromosomal or genetic anomalies, and to children conceived through rape or incest. Other ‘Repealers’, depending on the extent of their liberalism, would extend a right of abortion to the mothers of any or all children regarded by their mothers as flawed, unhealthy, unwanted or inconvenient.

It is argued by the protagonists of the ‘Repeal the Eighth’ that this repeal will free the legislators from the restrictions of the Eighth Amendment and enable them to enact laws to cater for these needy cases. But the question remains ‘will it’?

Where do lawmakers get their authority to enact laws anyway? Most people and most democratic constitutions would say that the power of the legislature to make laws comes to them from the people. But are there limits to the powers the people may grant to the legislature? The theory of parliamentary supremacy (or “legal positivism”) would hold that there is no limitation on the laws Parliament may enact. As Sir Leslie Stephen explained in this theory in his book ‘The Science of Ethics’: “If a legislature decided that all blue-eyed babies should be murdered, the preservation of blue-eyed babies would be illegal”.

But differently from many other constitutions, the Irish Constitution in Article 6 says that “All powers of government, legislative, executive and judicial, derive, under God, from the people…”.  These words “under God” were deliberately added to ensure that the Irish constitution would not be guilty of the absurdity to which the theory of absolute parliamentary supremacy leads. The Dáil is not omnipotent, but is subject to the law of God.

The awkward fact for atheists, agnostics, the lapsed, and those in the Dáil who haven’t read article 6 of the Irish Constitution, is that those who did write it and the majority who enacted it in 1937, mostly believed in God, and gave the Dáil no power to enact laws which are contrary to the law of God. When God said “Thou shalt not kill”, the consequence of Article 6 is that no TD, no Seanadóir, no Judge, no Doctor shall kill or authorise the killing of any innocent unborn child.

So, surely before they repeal the eighth Amendment (or Article 40, s.3, 3° which it inserted into the Constitution), abortion advocates need to surely repeal or amend Article 6, and also perhaps paganise or at least de-Christianise that Preamble to Bunreacht na hÉireann whose first words are “In the Name of the Most Holy Trinity, from Whom is all authority…”.

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