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