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The Supreme Court case that needs to be resolved before the Eighth Amendment referendum

A ruling by the High Court in 2016 found that references to the “unborn” in the Constitution meant an unborn child.

Rage Against the Regime protest Source: Niall Carson via PA Images

This article was first published on 1 February. It has been updated and republished today ahead of the hearings next week. 

THE SUPREME COURT is to expand on a High Court ruling that found that the “unborn” has rights beyond the right to life, which would have significant ramifications in the event of a ‘repeal’ vote in the proposed Eighth Amendment referendum.

The case is to appear before a panel of seven judges on Wednesday 21 February with hearings expected to last two days.

The State is appealing a High Court decision handed down in July 2016 where Judge Richard Humphreys ruled that the use of the word “unborn” in Bunreacht na hÉireann meant an “unborn child”, with the unborn’s rights extending beyond the right to life.

The judgement was made in a case of a man and a woman and their unborn child, now two years of age. The man, who’s originally from Nigeria, was facing a deportation order after being refused asylum in 2007.

During the case, the legal team representing the Department of Justice argued that the couple had no constitutional right to remain here because they weren’t married, and said that the only right the unborn had was the right to life.

But in his ruling, the judge said that argument was “entirely without merit”, expanding beyond that to say that references to “the unborn” in the Constitution was “clearly a child”.

“In my view, the unborn child is clearly a child and this, protected by Article 42A. Any other conclusion would fly in the face of the ordinary meaning of language, the use of the term child in numerous statutory contexts prior to the adoption of Article 42A, and the sheer social biological and human reality that an unborn child is, indeed, a child. Ask any happily expectant parent.”

The judgement continues:

The unborn child enjoys significant rights and legal position at common law, by statute and under the Constitution, going well beyond the right to life alone. Many of these rights are actually effective rather than merely prospective.

Judgement 3 A snippet from the 2016 High Court judgement that says the Constitution protects all children 'both before and after birth'.

The judge revoked the Nigerian man’s deportation order, saying that the Minister for Justice needed not only to consider the unborn’s right to life, but the legal rights received upon being born. This included safeguards inserted as part of the Children’s Referendum that the State had a duty to protect all children.

If this ruling was to be upheld, it could cause complications for the State in the context of the Eighth Amendment referendum, as barrister Paul Anthony McDermott explained.

“If you now say the unborn has rights other than the right to life, if the unborn is defined from week zero, you come to a slightly strange scenario where on one hand the Supreme Court is saying, for example, that an unborn has a right to stay in Ireland, but on the other hand, the Oireachtas is saying there’s a right to abort that unborn.

So on the one hand you’re saying that this unborn has the right not to be deported, not have their mother deported, but on the other hand can be aborted here.

He said that immigration was the most pointed example of this “slightly awkward clash of different rights”, which was why the State had sought clarification.

Although Judge Humphreys is not the only judge to comment on the definition of “unborn” in the Constitution, his definition is seen as the most definitive, which is why the State decided to pursue further clarification.

McDermott said that the complication and significance of the judgement could mean that it would take more time than other Supreme Court rulings.

“Presumably the court is aware that this could impact on the referendum,” he added.

Cases are usually listed up to three months to allow time for a judgement to be given – three months after that would mean the decision was published at the end of May, which is the time the government has indicated the referendum will be held.

Irish Children's Referendum The 25 May is the rumoured date for the referendum. Source: PA Images

Another thing that could happen during this judgement is the court could make a comment about the Eighth Amendment generally.

“I’d imagine the Supreme Court would try to be careful to not be seen to interfere with the referendum or influence it, it will try to stick to the narrow question – but you couldn’t rule out the possibility that it might say something in its judgements that might throw a light on what the current [Eighth Amendment] wording means,” McDermott said.

Rights of ‘the unborn’ before 1983

Last month, the government published a summary of the legal advice it received from the Attorney General Seamus Woulfe on the proposed wording for the Eighth Amendment referendum.

Rather than adopting the recommendation from the Oireachtas Committee on the Eighth Amendment to have a straight repeal, the government opted for an enabling clause to be included in the Constitution giving the Oireachtas the power to legislate on abortion.

Ireland: Ireland: Thousands Strike 4 Repeal in Dublin Pro-choice campaigners on O'Connell Bridge in Dublin last March. Source: PA Images

The reason the Attorney General gave for this approach is that if Article 40.3.3 was simply repealed, it could be argued before the courts that the unborn has residual constitutional rights, which “could continue to restrict the power of the Oireachtas to legislate on the issue”.

McDermott said that this is something that will form part of the discussion around what the definition of “unborn” is, and whether there are constitutional protections for the unborn before that Amendment was inserted in October 1983.

What has never been clear is – before 1983, did the unborn have protection in the Constitution even though there was no expressed reference to them? And if the answer to that is yes – and some judges had said yes, the unborn were protected – does that just mean they had a right to life protected, or did they have other rights?

Under the Children’s Rights referendum, the State has a duty to protect all children; in his ruling Judge Humphreys said it was his view that those rights afforded in 2012 cover the unborn as well.

“Insofar as Article 42A of the Constitution protects ‘all’ children, such protection covers the child both before and after birth,” he said in his judgement.

But other High Court judges have made the opposite ruling, so there’s never been a definitive ruling with regards to the unborn in the Constitution and what it means.

The ruling wouldn’t have a bearing on the right of the unborn to citizenship, as the Twenty-Seventh Amendment of the Constitution specifically refers to that right being given to someone who is “born in the island of Ireland” and who has at least one Irish parent.

The context in which questioning of the definition arose was within immigration, which McDermott argues is where it’s “particularly acute”.

“If you’re an unborn being carried in the womb of a mother in Ireland, and if your mother has been deported to a country that’s dangerous or with very poor healthcare, that can have a big impact on your life.”

Immigration solicitor Wendy Lyon of KOD Lyons told TheJournal.ie that if the judge’s ruling is upheld, it could “potentially be very serious”.

“It could be very useful in immigration law if a client is expecting a child that would be good grounds to remain – a child who is Irish or an EU citizen would have very strong rights to remain, so in that respect it’s useful.

But that opens a whole other can of worms for the State such as social welfare – should the unborn’s mother be entitled to child benefit? Should the Census start counting a foetus as a child? And mortality rates – miscarriages count for 20% or 30% of pregnancies, so think of the effect on mortality rates.

She said that these wouldn’t necessarily come to pass if Humphreys’ ruling is upheld, but said that based on her reading of the case, “it didn’t seem necessary to reach that issue”.

“The principle of making a constitutional decision, you have to make sure that it’s necessary and I wouldn’t really find it necessary,” she said, saying that there were enough grounds for the couple to avoid deportation without concluding that “the unborn” meant “unborn child” with rights beyond the right to life.

Prediction

Although judges have commented on the definition of unborn before, this case is unprecedented in that a specific definition has never been sought before.

The wording for Ireland’s constitution is also unique, as there aren’t many cases that afford such strong legal protection to the “unborn”. This will make it difficult for judges to seek previous cases in which to base their judgement on.

“Our constitution has had its own peculiar history on this issue,” McDermott says.

It’s hard to compare it with any other country because we’ve had two referenda, we’ve had the X Case, there’s been so many twists and turns it’s probably hard to look at any other country and say that’s just like ours.

“I would imagine that whatever happens in the referendum, this Supreme Court judgement could be one of the most important judgments of the year, or the decade maybe.”

Claim dismissed

On 7 February, a three-judge panel ruled against the Pro Life Campaign’s application to become a legal adviser in the case.

Mr Justice Donal O’Donnell, Mr Justice William McKechnie and Ms Justice Elizabeth Dunne rejected the application for the Pro Life Campaign to become an amicus curiae or an impartial adviser, saying that this was a “pure issue of law, with no medical or social issue”,  and both parties in this case were already legally represented by “experienced teams”.

The panel of judges also questioned the impact the groups involvement would have in the context of the upcoming Eighth Amendment referendum, and asked why they had waited until the last minute to lodge the application to become an amicus, when when the appeal was lodged in the summer of 2016.

Read: Abortion referendum proposed for May, but 12-week law goes too far for Coveney

Read: Explainer: What is the 8th Amendment?

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