Wednesday 23 October 2019

Unborn does not have rights beyond right to life in Eighth Amendment, Supreme Court rules

Supreme Court
Supreme Court
Shane Phelan

Shane Phelan

The Supreme Court has rejected part of a High Court judgment which found the unborn had rights beyond the right to life contained in the Eighth Amendment.

The keenly awaited judgment from the seven-judge court will remove much uncertainty over the proposed referendum on removing the amendment, which the Government hopes to hold in May.

Delivering judgment at the recently opened courthouse in Limerick, Chief Justice Frank Clarke said it was the unanimous view of the court that the unborn does not have rights outside the right to life in the Eighth Amendment.

It also found that the unborn was not considered to be a child for the purposes of Article 42A of the constitution, introduced with the passing of the children’s rights referendum in 2012.

Had the High Court findings been upheld, even if the amendment were to be repealed later this year, it was considered conceivable legal challenges aiming at safeguarding the unborn could be mounted.

Health Minister Simon Harris said he noted the clarity the Supreme Court had brought with its decision. He said he would consider the judgment and get advice from the Attorney General before bringing a memo to Cabinet shortly with the final wording of the referendum bill.

The judgment removes a potentially significant stumbling block to the holding of the abortion referendum.

The issue of the rights of the unborn arose in an immigration case involving a Nigerian man who was facing deportation and wanted the order revoked by the Justice Minister.

His Irish partner was due to give birth to a child three weeks after the proceedings began. The child was born in August 2015.

In the High Court Mr Justice Richard Humphreys found the unborn child had rights under the Constitution beyond the right to life. He also found the minister should take into account the impending birth when considering whether or not to revoke such orders.

The findings were appealed by the State, which argued the only right the unborn has is the right to be born. Other constitutional rights only kick in when a child is born, lawyers for the State argued.

Mr Justice Clarke said the Supreme Court found the Justice Minister was obliged to consider the fact that the pregnancy of the partner of a deportee was a relevant factor in any decision to revoke a deportation order and was obliged to give separate consideration to the likely birth in Ireland of the child of a potential deportee.

He also said the minister was obliged to take account of the fact that an Irish citizen child will acquire on birth constitutional rights which may be effected by deportation.

The weight the minister must accord to these factors was not an issue in this case, he said. It was not the case that the minister, having considered these matters, was precluded from refusing to revoke the deportation order.

Accordingly, Mr Justice Clarke said, the decision of the High Court on this aspect of the case was correct and it was incumbent on the minister to consider these factors in making a decision.

However, he said neither the common law cases and statutory provisions nor the pre and post amendment court decisions relied on by Mr Justice Humphreys supported the High Court judge’s conclusion that the unborn possesses inherent constitutionally protected rights other than those expressly provided for in Article 40.3.3, the Eighth Amendment.

“The most plausible view of the pre-Eighth Amendment law was that there was uncertainty in relation to the constitutional position of the unborn which the Eighth Amendment was designed to remove,” he said.

Mr Justice Clarke also said the Thirteenth Amendment, which says the prohibition on abortion does not limit the right to travel abroad, and the Fourteenth Amendment, which allows for the distribution of information about foreign abortion services, supported the Supreme Court’s view that the present constitutional rights of the unborn “are confined to the right to life contained in Article 40.3.3, with due regard to the equal right to life of the mother”.

He said: “While it does not alter the outcome of this case, the minister is accordingly not obliged to treat the unborn as having constitutional rights other than the rights contained in Article 40.3.3.

“It is accepted that the right to life is not impacted in the deportation or revocation decision in this case. The High Court determination in this regard is reversed.”

Mr Justice Clarke said the High Court determination that the unborn is a child for the purposes of Article 42A was also being reversed by the Supreme Court.

During hearings last month, Mary O’Toole SC said if the decision was upheld, there would be difficult to predict consequences for the State.

She argued there would be ramifications for areas outside immigration, such as in medical treatment, succession law and for bodies such as the Child and Family Agency.

Would the Government, for example, have to make all women of child bearing age take folic acid to vindicate the rights of the unborn, she asked the court.

She argued birth was the “brightline” event marking when the unborn is entitled to the full extent of constitutional rights available to citizens.

Lawyers for the Nigerian man, his partner and their daughter argued the State had adopted and “extreme” and “absolutist” position of insisting the unborn is a “constitutional nullity” outside the Eighth Amendment.

Maurice Collins SC argued the State was effectively saying, when the people voted for the Eighth amendment in 1983, they were “unwittingly excluding the unborn from every other constitutional protection”.

Minister for Children Katherine Zappone welcomed the ruling.

“I welcome the clarity offered by today’s Supreme Court decision and look forward to continuing the process of putting the Eighth Amendment before the Irish people by way of referendum,” she said.

Senator Catherine Noone, who chaired the Oireachtas Committee on the Eighth Amendment, said the decision was a “landmark” one which would allow the Government to move forward with the planned referendum.

“I urge us all to accept the court’s judgment in good faith and move forward in a civilised and respectful manner, as has been the case for the most part so far,” she said.

The Pro Life Campaign said the ruling showed the importance of keeping the Eighth Amendment in the Constitution.

The campaign’s legal advisor, Professor William Binchy, said: “The Supreme Court’s judgment makes it all the more necessary to oppose the Government’s proposal to introduce abortion on demand.

“The court has made it clear that unborn babies, up to birth, would have no constitutional protection against the legislation that the Government intends to introduce.”

Niamh Uí Bhriain of Save the 8th group said the decisions exposed “the frightening reality” of Government proposals on abortion.

“It confirms that if the Eighth Amendment is abolished, then the only constitutional protections enjoyed by unborn children would be abolished along with it,” she said.

She said if the referendum is passed it would give future Governments “carte blanche” to extend abortion on demand later in pregnancy without any approval from the public.

However, three organisations campaigning for the removal of the Eighth Amendment welcomed what they described as the “certainty and clarity” provided by the ruling.

Orla O’Connor, director of the National Women’s Council of Ireland, said: “The judgment paves the way for a referendum on the Eighth Amendment and will hopefully allow the Government to bring the referendum bill to the Dáil this week.

“From talking to people across the country we know that people are looking for controlled change of our laws on abortion. They want to protect women’s health and well-being and ensure that doctors can care for their patients here in Ireland. This is only possible if we remove the Eighth Amendment from our Constitution and allow the Dáil to legislate for the provision of abortion care, in line with best medical practice.”

Linda Kavanagh, spokesperson for the Abortion Rights Campaign, said the ruling meant nothing now stands in the way of the referendum taking place, while Ailbhe Smyth, convenor of the Coalition to Repeal the Eighth Amendment, said it was now looking forward to the confirmation of a date for the referendum.

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