If 8th Goes, Unborn Will Have NO Rights - Supreme Court

09.03.2018

In a landmark decision, clearing the way for the government’s abortion referendum, the Supreme Court has ruled that the unborn have no constitutional rights beyond the right to life, protected by Article 40.3.3, the 8th Amendment. Thus if the amendment is removed the unborn will have no constitutional rights whatsoever. Not the right not to be tortured; not the right not to be bought and sold, not the right not to be abused. No rights at all.

The decision arose from an appeal by the State against a decision of the High Court. During the hearing, the position adopted by the State, that unborn children have no rights whatsoever beyond the right to life, was described as “extreme, striking and startling”.

The issue arose in an immigration case involving a Nigerian man, his Irish partner and their child, who was unborn when the legal proceedings began in 2015. The man wanted the State to revoke a deportation order against him.

The State’s case made no distinction as to the stage of development of the unborn, whether it was just after conception or just before delivery. The unborn child concerned in the immigration case was just 20 days away from birth.

The Supreme Court’s decision in this case reverses it position in the R v. R frozen embryos case, where the court found that while the embryos in question were not entitled to the protection of the Eighth Amendment, they were nevertheless entitled to a measure of constitutional recognition, entitlement and respect.

During the hearing, lawyers for the State were pressed by the court about whether there was a right to life for the unborn in the constitution before the Eighth Amendment. Senior Counsel Nuala Butler said the State's case was that this had never been definitively decided by the courts before 1983. She conceded that if this was an issue the court had to decide on, it would have to do so, without submissions on the issue on behalf of the State. Mr Justice Liam McKechnie commented that it was remarkable that the Minister for Justice steadfastly refused to give his position on this matter.

The Court concluded that “[t]he 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.” But it interpreted the will of the people in inserting the rights to travel and information re abortion as evidence that the uncertainty was removed in a restrictive fashion.

Had the Court found that the unborn enjoys other constitutional rights than the right to life, or had this question remained uncertain, any abortion legislation passed following repeal of the 8th Amendment might have been vulnerable to legal challenge. This decision makes that almost impossible. The vote in May will be an all or nothing one for the unborn. The stakes are now even higher.

Family & Life. March 8. RTÉ. March 7.