This Friday, 8 March, voters will head to the polls to vote in two referendums to make further changes to the Constitution.
One of these referendums, the Care referendum, proposes removing two articles, 41.2.1 and 41.2.2, referring to the life of women in the home, while inserting a new article on the provision of care.
Keith Walsh, senior counsel and former Chair of the Law Society of Ireland, is in favour of the proposed amendment and said it is essential to remove “an antiquated, out-of-date and out-of-touch article 41.2” from the Constitution.
Speaking on RTÉ’s This Week, he said the Constitution was about “a statement of rights” and was not just symbolic.
Arguing in favour of the Government’s proposed amendments, he added that article 41.2 was “a hollow promise that failed women” and that changing it would reflect how Irish families have changed since 1937 when the Constitution was drafted.
“Historically it has failed women both inside the home and outside the home and it does need to go,” Mr Walsh said.
He added: “We want to see the removal of this article and there are plenty of reasons why we would like to see a new article inserted and it’s just unfortunate it is called ‘the Care Article’.”
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However, Dr Maeve O’Rourke, a lecturer in human rights at Ollscoile na Gaillimhe who is a “reluctant” no-voter, said she is opposing the amendment because she believes the Government’s proposed replacement of article 41.2 is “harmful”.
“The Government has rejected what the Citizens’ Assembly recommended in 2021 and that Citizens’ Assembly was explicitly set up by Taoiseach Leo Varadkar in 2018 to figure out how to replace article 41.2,” Dr O’Rourke told the same programme.
She added: “What they decided after two years of legal advice and deliberation was that Irish society needs a right to care in the Constitution that would be guaranteed by the wording: ‘the State shall take reasonable measures to support care within and outside the home’.”
Dr O’Rourke explained that the “reasonable measures” language came from South Africa’s constitution and would enable judges to rule on “a socioeconomic right without overstepping the separation of powers”.
“I think it’s harmful to replace the women in the home provision with something that is not a right,” she said.
“I’m not happy with article 41.2, and I don’t know anyone personally who is, but I’m not willing and I think many people aren’t willing to give up the right to care that we should and can have in the Constitution.”
Dr O’Rourke added: “Disabled people are rightly concerned, and so are many others, that the Government’s wording will fill up that space in the Constitution’s fundamental rights provision that says care, and once it says the thing about care that the Government wants next week it’ll be very difficult to change that.”
Read more:
Countdown to polling on 8 March twin referendums
Referendums: Q&A with The Electoral Commission
Watch: Referendums on family and care explained
