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What the 'unborn' ruling means for the Eighth Amendment referendum

Yesterday, the Supreme Court clarified that the unborn does not have constitutional rights outside of the Eighth Amendment.

Court 2 in Limerick's newly opened Courthouse.
Court 2 in Limerick's newly opened Courthouse.
Image: Gráinne Ni Aodha

THE SUPREME COURT has clarified that the unborn has no constitutional rights beyond the right to life, and that references to “the unborn” do not mean an unborn child – so what does that mean for the proposed referendum on the Eighth Amendment?

In what is considered a significant and complex ruling, the seven Supreme Court judges gave their unanimous decision yesterday in a 124-page judgement that’s thought to have implications for the referendum on liberalising abortion laws, and on Bunreacht na hÉireann.

If the previous ruling had been upheld, which stated that the unborn had rights beyond the right to life, it would have caused confusion for the proposed referendum on repealing or retaining the Eighth Amendment, legal experts had argued. It may also have had significant implications for how the Constitution is implemented.

Fiona de Londras, a professor of Global Legal Studies at Birmingham Law School, told TheJournal.ie that it wasn’t entirely surprising that the Supreme Court gave the judgement it did, but added that it was “striking” that the verdict was unanimous.

“The entire court agreed that the constitutional rights of the unborn is solely in Article 40.3.3. There was no dispute, no contest, no argument – that’s striking and important.”

In cases with several judges, it’s possible for each judge to give their own separate judgement on the case – so one outcome could have seen seven separate findings.

In the judgement summary, which was read out in a Limerick court yesterday, Chief Justice Frank Clarke said that the issues raised in the case were “important” and “complex”.

The Supreme Court’s judgement was a clarification of a High Court case from 2016, which concerned a deportation order given to a Nigerian man in 2007.

In 2015, the man appealed for that order to be revoked, arguing that his Irish partner was pregnant with his then-unborn child. This current court case examines that argument.

Although the case was an immigration case, in his ruling Judge Richard Humphreys said that the unborn was “clearly a child”, with rights extending beyond the right to life alone.

If this interpretation had been upheld, and in the event of a ‘repeal’ vote in the proposed Eighth Amendment referendum, it would have meant that there was an awkward clash of rights between the woman’s right to access abortion, and the unborn’s right for its parent not to be deported, it had been argued.

As a result, Taoiseach Leo Varadkar had delayed publishing the draft legislation for the proposed Eighth Amendment referendum pending the outcome of the case. So now that we have the verdict, what does it mean?

The Eighth Amendment

In its judgement yesterday, the Supreme Court found that the unborn had no rights beyond the right to life, stating:

…the Minister is accordingly not obliged to treat the unborn as having constitutional rights other than the rights contained in Article 40.3.3 [the Eighth Amendment].
The High Court determination that the unborn is a child… is also reversed.

It stated that the reason the Eighth Amendment had been inserted in the constitution was “amongst other things, to copper-fasten the legislative prohibition on abortion”.

Conor O’Mahony, a senior lecturer in Constitutional Law at University College Cork, told Newstalk that the judgement had been “pretty clear and pretty emphatic” in relation to the Eighth Amendment.

“It clears a path really for what the government has in mind,” he said.

“If it had been upheld, the government may have had to go back to the drawing board for how the government would liberalise abortion laws. It’s now clear that the particular path that the government proposed that that will be sufficient as a workable proposal.”

de Londras also noted the speed at which the judgement was made, within two weeks instead of the expected 3-6 week timeframe for Supreme Court cases, which possibly hints at the importance of this case in relation to the Eighth Amendment.

She said that the judgement had emphasised that the Constitution should be read as is now, not as it was before the insertion of the Eighth Amendment in 1983.

“If the Eighth Amendment is repealed, we wouldn’t act as if the last 35 years hadn’t happened,” she said.

This would mean that there would be no uncertainty around whether the unborn has constitutional rights if the Eighth Amendment is repealed – the amendment’s removal would mean the unborn isn’t provided for at all within Bunreacht na hÉireann.

“But it also notes, as a matter of the common good, that the State can litigate to try to protect human life.

So this is exactly what we expected – so if there is a repeal of the Eighth Amendment, the unborn will not have a constitutional right that trumps the right of pregnant people, but the State will be allowed to try to protect life by putting protections around abortion like time limits, etc.

In relation to the Constitution, O’Mahony said that the High Court ruling had been stretched beyond what it was designed to do:

A lot of the commentary around this beforehand was that the High Court’s decision took two provisions of the constitution to places where they were never designed to go.

“The Eighth Amendment was only ever intended to protect the right to life, there was never anything else discussed really in that particular referendum campaign.

“Similarly, in the Children’s Amendment in 2012, there was no consideration of unborn children in the drafting or the referendum process on that.”

Yesterday, Health Minister Simon Harris said he was consulting with the Attorney General on the proposed wording of the Eighth Amendment.

More: Special Cabinet meeting to consider final wording of Eighth Amendment referendum

Read: Supreme Court rejects definition of ‘unborn’ as an unborn child in Constitution

Read: Ruling that Justice Minister ‘obliged to consider’ pregnancies in deportation cases could be ‘helpful’

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