What’s Your Advice?

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Fine Gael TD and Minister for Health Simon Harris

You may recall how last year Independents 4 Change TD Clare Daly proposed a bill which would have allowed abortions in cases of fatal foetal abnormalities.

It was voted down 104 to 20 with Government TDs at the time claiming it was unconstitutional, following advice from Attorney General Máire Whelan.

You may also recall Legal Coffee Drinker’s take on the matter.

At the time, LCD said:

“…it is not possible to say with certainty, or even as a matter of probability, that the Bill is unconstitutional. Many Bills, including those put forward by governments, have constitutional question marks hanging over them. That this will happen is expressly recognised by the Constitution itself, Article 26 of which provides that the President, before signing a Bill, may refer it to the Supreme Court to have a decision taken as to its constitutionality.”

To regard possible unconstitutionality, falling short of certainty, or even probability, as a ground for not voting for legislation would have ruled out much of the most important legislation passed in this jurisdiction. Constitutional rights – even the right to life of the unborn – are not absolute; nor, in this case, is the question of unconstitutionality. Indeed, it could be argued that, if anything, it is in the public interest that we get the opportunity to hear more, from the Supreme Court, on the meaning and scope of Article 40.3.3.”

Further to this, fellow Independents 4 Change TD Mick Wallace is planning to propose an identical bill in the Dáil next Thursday, June 30.

There have been reports that three Independent Alliance ministers – Shane Ross, Finian McGrath and John Halligan – have been planning to support Mr Wallace.

But today, on RTÉ’s News At One, Health Minister Simon Harris told presenter Richard Crowley that Mr Wallace’s bill is… unconstitutional.

Richard Crowley: “The 8th amendment. What’s happening with the Mick Wallace bill which was to come into the Dáil next Thursday?”

Simon Harris: “Well I fully understand what Deputy Wallace is trying to do and I’ve said very clearly, on the record, that I find the current situation facing parents experiencing fatal foetal abnormalities in this country to be utterly unacceptable. But I am duty-bound, as Minister for Health, to make sure that any actions we take are constitutional, that they’re legal and that they’ll actually have an impact.”

“I’ve been consulting the Attorney General, in relation to Deputy Wallace’s bill. This bill is pretty identical to a previous bill tabled in the Oireachtas last year and the advice available to me, and the advice available I will be making available to Government colleagues is that the bill is not constitutional and that arises from the fact that there is a very explicit protection of the right to life of the unborn in our constitution.”

“So, really, these issues need to be addressed through a Citizens’ Assembly whereby they can be discussed,  a proper debate can take place, expert views can be heard and ultimately that is the right forum. So as I very much respect what Deputy Wallace is trying to do, I won’t be in a position to accept the bill because, quite frankly, it won’t make the meaningful impact that he thinks it will because it’s not constitutional.”

Listen back here

50 thoughts on “What’s Your Advice?

      1. newsjustin

        Or from an Attorney General who passed Constitutional Law 101 and knows that a piece of legislation deliberately at odds withe the constitution is, in fact, unconstitutional.

        1. Nigel

          Well I was referring to the extremist anti-abortion activists who insisted on createing the stupid mess where an intervention to save a woman’s life is unconstitutional. Perhaps it’s worth bringing these bills forward over and over again just to highlight how messed up that is.

          1. Nigel

            Oh, and rape victims. And victims of abuse. And underage girls. All the tricky and horrible situations that have to be treated with inhuman inflexibility because they are unconstitutional. How long until the next grotesque public debacle arises out of their extremism do you think? I’d rather a hundred more bills like this be brought before the Dail and nudge people incrementally towards common sense than one single person have to go through another nightmare of the sort we excel at creating.

  1. realPolithicks

    They hide behind “unconstitutionality” and “a Citizens’ Assembly” so as to not actually take any action on this critical piece of legislation. They are just cowards, there’s no other description for them.

    1. phil

      Some might argue that the Dail is a Citizens’ Assembly, but I wouldn’t , too bloody tired of all this …

  2. Rugbyfan

    when you consider that seanad members were discussing seagulls yesterday you have to wonder how many brain cells the TD actually have!

    1. Nigel

      Are you more worried about being embarrassed than about whether seagulls might be causing real problems or not? I think it’s no bad thing to have a house that won’t stand on its dignity to discuss an issue perceived as silly by commentators.

  3. newsjustin

    More wishful thinking. The constitutional clause protecting the unborn’s right to life does not allow for the abortion of the unborn foetus – unless the mother’s life is in danger. You can’t wish that away.

    1. MoyestWithExcitement

      “Many Bills, including those put forward by governments, have constitutional question marks hanging over them. That this will happen is expressly recognised by the Constitution itself, Article 26 of which provides that the President, before signing a Bill, may refer it to the Supreme Court to have a decision taken as to its constitutionality.”

      “To regard possible unconstitutionality, falling short of certainty, or even probability, as a ground for not voting for legislation would have ruled out much of the most important legislation passed in this jurisdiction.”

      1. newsjustin

        This bill (any one that allows for the abortion of a foetus, with the exception of when a mother’s life is at risk by continuing the pregnancy) is unconstitutional. It is not possibly or probably unconstitutional, it is not a little bit unconstitutional. It is entirely unconstitutional. Law makers should abide by the constitution and not waste parliament’s time with entirely unconstitutional bills.

        1. MoyestWithExcitement

          It’s not up to fine gael to decide what’s constitutional. As noted above, if they decided to not vote on a bill because of its constitutionality then most bills would never be voted on so constitutionality is an excuse. It’s yet another lie from the fine gael government.

          1. Steve

            Moyest this is probably the first time I agree with you entirely. Let it go to the Supreme Court.

          2. newsjustin

            How would most bills not be voted on? Law makers tend, for some crazy reason, to propose legislation that is constitutional.

          3. newsjustin

            Let what go to the Supreme Court Steve? A piece of legislation deliberate designed to be unconstitutional?

          4. MoyestWithExcitement

            “How would most bills not be voted on? Law makers tend, for some crazy reason, to propose legislation that is constitutional.”

            Did you actually read the OP? Even after I quoted it in direct response to you, did you read it? It has your answer “Many Bills, including those put forward by governments, have constitutional question marks hanging over them.” Fine Gael are not legal experts and they represent neither the office of president nor justice. It is either staggering arrogance and indicitive of a ‘monarch’ attitude on the part of fine gael or it’s conscious lying to the Irish people. Fine Gael are a cancer.

          5. Steve

            …and we’re back to disagreeing….cancer comment etc.

            @newsjustin – as LCD said the right to life of the unborn is not absolute . the 8th recognises this with the reference to “as far as practicable”. Some things, like fatal foetal abnormality or rape may be interpreted by the SC as not meeting the spirit or intent of the 8th in protecting the physical or mental well being of the mother who has equal rights under the 8th.

            Let the SCC debate it.

          6. MoyestWithExcitement

            Is the attorney general in the Supreme Court or the office of the president? No? Good man.

          7. Andyourpointiswhatexactly?

            The current AG isn’t up to much, by all accounts. She’s very much at the beck and call of her paymasters.

          8. newsjustin

            Wishful thinking Moyest – as I said. You hope that an entirely unconstitutional piece of legislation will be made constitutional by passing it for review by the Supreme Court.

          9. MoyestWithExcitement

            The wishful thinking here is being done by fine gael and its supporters like you, newsjustin. They are not in a position to rule a bill unconstitutional. Fact. They have voted in bills with questions over constitutionality before. Fact. Citing constitutionality as a reason *not* to vote for something when it didn’t stop them voting on other things shows that they are lying. Either that, or they think themselves as our rulers as opposed to our servants which is what they are. Fine Gael are a disgrace to Irish society.

          1. newsjustin

            The bit allowing abortion of a living foetus where the mother’s life is not at risk.

          2. Bob

            Sorry, that sounds more belligerent that it’s meant to. I mean is the actual wording concerning non-life threatening abortions, or has that been changed in the new version?

          3. mildred st. meadowlark

            You’ll get no answer from newsjustin because the answer doesn’t suit his/her argument. It’s happened to me more than once.

          4. newsjustin

            Miaow Mildred.

            I don’t know how Mick plans to word it in the bill he’s going to promote. If it’s as reported – to allow for the abortion of foetuses with fatal or soon to be fatal disabilities – it’ll be entirely unconstitutional.

  4. Pedantic Pat

    Christ, he’s getting more anemic by the day. He’s the same colour as the wall behind him!

    1. Andyourpointiswhatexactly?

      He looks like his brother did when they had him made up as nearly dead in hospital in Love/Hate.

  5. newsjustin

    This is exactly the discussion that preceeded the same-sex marriage referendum.

    Give us a referendum
    Vote Yes
    We don’t need a referendum
    We shouldn’t need a referendum
    Just legislate and see what happens
    When are we getting a referendum……

    And around and around we go.

    1. Daisy Chainsaw

      Meanwhile women suffering with FFA can continue to fupp off to the UK where a foreign territory has taken it upon itself to treat women humanely, as sentient human beings, rather than reduced to the status of receptacle for a foetus.

      1. newsjustin

        I was commenting on the schizophrenic nature of the pro-choice views on a referendum.

        Oh and I’d read Friday’s Examiner before extolling the virtues and humanity of the British abortion industry.

  6. Tish Mahorey

    The Dáil IS the Citizens Assembly. You don’t cease to be a citizen and a representative of your peers when you are elected.

    This nonsense about a Citizens Assembly is attempting to create a barrier between the people and their parliament by pretending to be open and inclusive while really just denying them debate in their parliament.

    It also demonstrates how out of touch many politicians are with their constituents.

  7. Andyourpointiswhatexactly?

    Whenever I see him I think he can barely hold in his excitement at the thought of himself being the leader of FG/the country some day.

  8. Mulder

    Simple Simon says, see it be simple, put yer hand up yer and wave yer other hand all around, then wiggle yer thingey and pull yer ears and jump around.
    Then kick to touch as per usual and put hands over ears and eyes and head between yer legs and hope it will go away.
    Just like what an ostrich does when a lion, is charging it, stick head in the sand and hope and hope for the best.

  9. gorugeen

    Political advice is what it is pure and simple. The AG has shown to be a poor task master. A political puppet. It’s shameful but entirely expected behaviour.

  10. martco

    Citizens Assembly this
    Spring and Summer Statement that
    Fiscal Space the udder

    all utter nonsense-speak

  11. newsjustin

    If Danny Healy-Rea promoted a bill to make same sex marriage illegal, he would be laughed at and told that it was entirely unconstitutional and to get back in his box.

    But a TD aims to make bort ion illegal and people are like: “well maybe that’s not what the constitution says, maybe we should debate it, maybe we shold waste time finding out. Maybe we should decide to outlaw divorce again while we’re at it…”

    1. Daisy Chainsaw

      People got Irish divorced in the UK before the church and it’s lickspittles lost their iron grip on marriages. The same will happen to Irish abortions and we won’t have to hypocritically export 4,000 women a year.

      1. newsjustin

        That wasnt my point. But whatevs.

        Some people have a weird idea of the Constitution – one that is very flexible when it suits them and very fixed when it suits them too.

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