Members of the Citizens’ Assembly have voted for a constitutional amendment which would mandate the Oireachtas to deal with the issue of abortion.

The citizens voted 51-38 to an amended ballot paper which suggested that Article 40.3.3, the Eighth Amendment, “should be replaced with a constitutional provision that explicitly authorises the Oireachtas to legislate to address termination of pregnancy, any rights of the unborn, and any rights of the pregnant woman”.

The alternative option was that Article 40.3.3 should be “replaced or amended with a constitutional provision that directly addresses the termination of pregnancy, any rights of the unborn and any rights of the pregnant woman”.

The former option would mandate the Oireachtas to legislate on the issue of abortion. The latter option would specify in the Constitution the circumstances in which abortion would be allowed and would limit the powers of the Oireachtas to legislate on the issue.

Three of the 92 members eligible to vote did not express a preference either way.

Assembly chair Ms Justice Mary Laffoy ruled out a re-run of the second ballot of the day in which initially 91 members (a 92nd joined in the afternoon) of the assembly voted 50-39 (with two abstentions) to reform rather than repeal the Eighth Amendment.

Legal uncertainty

Some citizens said they had voted for reform of the Eighth Amendment on the basis that Ms Justice Laffoy had advised that repeal might lead to legal uncertainty over the issue of abortion.

One member of the assembly said she had been persuaded to vote for reform rather than repeal on that basis, but was unsure whether that advice was correct.

Ms Justice Laffoy repeated that the legal consequences of repeal could not be established with certainty, citing a paper from Brian Murray SC, who had addressed members of the assembly on the issue previously.

He stated that a simple repeal of the Eighth Amendment might not necessarily lead to a more liberal abortion regime.

Earlier, members of the assembly voted overwhelmingly to recommend that the Eighth Amendment should not be retained in its current form.

A total of 79 members present voted in favour of the proposition that “Article 40.3.3 should not be retained in full”. This was 87 per cent of the votes cast.

Twelve members (13 per cent) voted in favour of the proposition: “Article 40.3.3 should be retained in full”.

Recent opinion polls

The vote to change the Eighth Amendment is broadly in line with recent opinion polls on the issue of abortion. Just 16 per cent of the public in an Irish Times opinion poll published in March believed the Eighth Amendment to the Constitution should be retained in its current format.

The afternoon session led to some heated exchanges between members of the assembly following the vote to reform rather than repeal.

Ms Justice Laffoy admitted it had been a “fraught” day for them, and asked that they be “respectful of your fellow citizens and alternative viewpoints” in the final session on Sunday.

She expressed a hope that the assembly members would “regain collegiality”.

On Sunday, the citizens will examine eight scenarios in which the Oireachtas might legislate for abortion, and also the time limits for such abortions.

They will examine scenarios where abortion might be allowed in circumstances where there is:

1) A real and substantial physical risk to the life of a woman.

2) A real and substantial risk to the life of a woman by suicide.

3) A serious risk to the physical health of a woman.

4) A serious risk to the mental health of a woman.

5) Pregnancy as a result of rape.

6) An unborn child with a foetal abnormality that is likely to result in death before or shortly after birth.

7) An unborn child with a significant foetal abnormality that is not likely to result in death before or shortly after death.

8) Availability upon request (no restrictions as to reasons).

Their deliberations and recommendations will form the basis of a report sent to the Oireachtas by Mrs Justice Laffoy in June.