It seems highly likely that the Irish courts are about to be asked, yet again, to resolve a highly emotive and complex constitutional issue involving the right to life of the unborn. On this occasion, it has nothing to do with abortion, but the case is not unique for that.
The Eighth Amendment obliges the State to defend and vindicate the right to life of the unborn as far as practicable. It does not make any mention of abortion, and has previously generated Supreme Court decisions around the status of frozen embryos and the deportation of pregnant women. Its sweeping terms now come into focus in the context of a clinically dead pregnant woman.
The issue is whether the woman should be kept alive long enough to deliver the baby. Some members of her family object to this, but next of kin have no formal status in Irish law to make decisions for adults. The case boils down to conflict between two competing rights that are protected by the Irish Constitution. On one side of the argument lies the right to die a natural death, recognised in 1996 in the case of Re a Ward of Court. This case concerned a woman left in a near-persistent vegetative state following surgery. Because she showed some minimal response, the hospital was unwilling to discontinue artificial nutrition and so she remained in this condition for 20 years. The Supreme Court held that she had the right to have nature take its course and to die a natural death. Unless an individual so wishes, they are constitutionally entitled not to have life artificially maintained by the provision of nourishment by abnormal artificial means, which have no curative effect and which are intended merely to prolong life.
One view is that discontinuing treatment in the present case would merely involve allowing nature take its course; there would be no question of a deliberate acceleration of the death of the unborn. In the 2002 case of Baby O, in which a pregnant woman sought to resist deportation on the basis of the heightened risk of infant mortality in her home country, the Supreme Court differentiated between deliberate terminations and decisions which merely expose the unborn to a higher risk of a natural death. This suggests that the woman in this case should be allowed to die, and the death of the unborn would be nothing more than a natural consequence of this.
However, an alternative view might be that unlike the mother, the life of the unborn is not beyond rescue. The treatment would not merely prolong life, it would save it.
The most significant consideration here is how the right of the mother to die a natural death interacts with the Eighth Amendment, which protects the right to life of the unborn. In Re a Ward of Court, the right to life was described as the "pre-eminent personal right". In the X Case, the Supreme Court held that the right to life of the unborn would take priority over lesser personal rights of the mother.
It is well known that the Supreme Court in the X Case ultimately held that the mother (a suicidal 14-year-old rape victim) may have an abortion because her life was in danger. This can be viewed in two ways. One is that if the unborn may be required to entirely forfeit the "pre-eminent personal right" (the right to life) where necessary to save the right to life of the mother, perhaps the mother might be required to merely delay the exercise of a lesser right (the right to die a natural death) to save the life of the unborn?
The alternative view is that the Eighth Amendment only requires the State to defend unborn life "as far as practicable".
Whatever the outcome of this case, it is unfortunate in the extreme that the courts are once again called upon in such circumstances, making an already tragic situation even more difficult. Prominent pro-life activists have made it clear that they see no moral objection to allowing this woman to die naturally. Whether or not we ever liberalise abortion laws in Ireland, there is surely a better and more precise way to prohibit abortion than the Eighth Amendment.
Dr Conor O'Mahony is a senior lecturer in Constitutional Law at University College Cork.