The Supreme Court has unanimously held that the only constitutional protection for the unborn is contained in the Eighth Amendment, according to Mr Justice Bryan McMahon, a retired judge of the High Court.
In a letter to this newspaper (May 4th) he said: "It follows, as many have already noted, that if the Eighth Amendment is removed in the upcoming referendum, there will be no constitutional protection for the unborn. And this will be the position from the moment of conception right up until the moment the unborn 'quits the mother's womb'.''
Mr Justice MacMahon is correct in saying that many others have also taken the view that it follows from the Supreme Court decision in question that, if the amendment is removed, there will be no constitutional protection for the unborn. I would go further and say that this view has also been voiced – or at the least tacitly accepted – by some of those who support the repeal of the amendment. It is a view which, with all respect to my distinguished former colleague and those who agree with him. I believe to be dangerously simplistic and – no doubt unintentionally – misleading.
Judgment was delivered in the Supreme Court case – M & ors -v the Minister for Justice and Equality and ors – on March 7th last. The single judgment, which was delivered by the Chief Justice, Mr Justice Frank Clarke, was agreed to by the six other members of the court, all of whom had contributed to the judgment. It has to be said at the outset that there is no reference from beginning to end of the Chief Justice's judgment as to what the consequences of a repeal of the Eighth Amendment might be. That is hardly surprising since such a question was not before the court in any form and could not have been.
It was, however, the case that the hearing of the appeal by the court had been expedited, no doubt because of the possibility that some of the findings of the court might be relevant in the event of the Oireachtas considering the enactment of legislation providing for the forthcoming referendum.
Deportation order
The case arose out of the proposal by the Minister to deport the first respondent, a Nigerian national, who was in a relationship with an Irish woman,the second respondent, who was carrying his unborn child. It was largely concerned with the extent to which the Minister was obliged to take into account the pregnancy in deciding whether the deportation order should be revoked, it being, of course, the case that the child when born would be an Irish citizen.
It was further argued that article 40.3.1 and 2 protected not merely the right to life of the unborn but also what were called the "potential rights" which he or she would enjoy when born
A number of arguments were advanced in the High Court on behalf of the respondents. Undoubtedly the most important in the context of the referendum was the submission that, while the right to life of the unborn child was guaranteed by article 40.3.3 of the Constitution, that right was also one of the “personal rights” protected by implication by other articles of the Constitution, namely article 40.3.1 and 2, which deal with personal rights.
It was further argued that article 40.3.1 and 2 protected not merely the right to life of the unborn but also what were called the “potential rights” which he or she would enjoy when born.
The child was already born when the case was heard in the High Court and the first respondent had been granted a right of residence which rendered the deportation irrelevant. The case was thus, from a legal perspective, effectively moot, but the High Court and the Supreme Court were satisfied that the important issues which it raised were likely to recur in the future and should be definitively resolved.
The High Court judge took the view that a number of cases decided prior to the enactment of the Eighth Amendment had held that the right to life of the unborn was already recognised and guaranteed by article 40. 3.1 and 2. He further held that the constitutional rights of the unborn were not confined to the right to life protected by the amendment. Under article 40.3.1 and 2 they included the unborn’s potential rights when born, including the right to the care and company of her father. The Minister was, accordingly obliged to consider that right when deciding whether the first respondent should be deported.
The Supreme Court concluded that the cases relied on in the High Court judgment had not decided that the right to life of the unborn was already recognised and protected by article 40.3.1 and 2. The observations of the judges in those cases acknowledging the right to life of the unborn were not a necessary part of the reasoning leading to the decision in each case and hence, in legal language, were no more than obiter dicta (ie things said by the way) which, while deserving of respect, were not binding on the courts in subsequent decisions.
The court further held that the present constitutional rights of the unborn are confined to the right to life guaranteed in article 40.3.3 and that the Minister was not obliged to treat the unborn as having rights other than the right to life guaranteed by article 40.3.3. That right was not implicated in the deportation decision and the High Court decision on this aspect of the case was accordingly reversed.
It is of critical importance that the Supreme Court did not decide in that case whether the dicta of the judges already referred to correctly stated the law as to the right of the unborn to life before the enactment of the Eighth Amendment. If they did correctly state the law, then a further question remains to be answered, ie whether that would also be the law in the event of the amendment being removed from the Constitution by the decision of the people on May 25th.
New provision
That question can be answered only in the light of the text of the amended Constitution, including the new provision replacing article 40.3.3, ie: “Provision may be made by law for the regulation of termination of pregnancy.”
The Supreme Court said it was not necessary – and arguably not possible – to resolve the question as to whether the law was correctly stated in the dicta of the judges. Those judges were concerned with the Constitution prior to the enactment of the Eighth Amendment. The Supreme Court in the M case was solely concerned with the Constitution as it stands.
The Chief Justice’s judgment does, however, contain this important passage: “Perhaps the most plausible interpretation of the constitutional [position] prior to the passage of the Eighth Amendment was that there was uncertainty. At least four positions were capable of being canvassed: that the unborn had a right to life and a range of other rights guaranteed by the pre-1983 Constitution; that the unborn had a right to life guaranteed by the Constitution, forming a gateway to rights which were acquired on birth; that the Constitution did not contain or protect any right of the unborn; and, fourth, that the Constitution protected a right to privacy which permitted a termination of a pregnancy. In the face of this range of possible views as to the legal position, the purpose of the Eighth Amendment was to remove uncertainty.’’
The court also pointed out that, while the question as to whether the dicta in the pre-1983 cases correctly stated the pre-1983 law did not have to be answered, it was the case that some of those dicta were grounded on a particular philosophical approach based upon the natural law, which had been disavowed by the court in a later case. The fact remains that the court having declined to reject any of the four possible views as to the pre-1983 position, it must be open to the courts to hold in a future case that, following the removal of article 40.3.3 in its present form, the right to life of the unborn continues to exist, but subject to the power of the Oireachtas to provide for its termination.
Manifestly, it will be open to the courts, freed from the constraints imposed by the present wording of article 40.3.3 – “with due regard to the equal right to life of the mother” –to hold that any provisions enacted under the new article 40.3.3 must strike the correct balance between the right to life of the unborn and the constitutional rights of the mother, including not merely her right to life but also her right to health, bodily integrity, privacy and personal autonomy.
Hypothesis
Let us test the proposition that the constitutional right to life of the unborn will cease to exist by considering an extremely unlikely hypothesis. Suppose the Oireachtas, purportedly exercising its powers under the new article 40.3.3, enacted legislation repealing the Protection of Life During Pregnancy Act 2013 and providing that a pregnancy could be terminated for any reason at any stage with the consent of the mother, provided that any necessary procedure was carried out by a registered medical practitioner.
If that legislation was challenged in the courts, then, if Mr Justice McMahon is correct, the courts, up to and including the Supreme Court,would be unable to hold that the Constitution as amended recognised in even the most highly qualified form any right of the unborn to life and that the outcome would be a rejection of any challenge to its validity.
The article does not purport to confer a right to life on the unborn: it recognises that such a right exists and guarantees that it will be defended and protected
Having spent a large part of my life as a barrister and judge, I have learned to be wary of forecasting what courts might or might not decide. It may be that such would be the outcome. I can only say that the proposition advanced by Mr Justice McMahon and others that such an outcome would be the necessary consequence of the decision in M v the Minister passes my comprehension. What is there in that judgment which will oblige the courts to reject in their entirety the opinions of Walsh J, McCarthy J and Barrington J in the pre-1983 cases that the right to life of the unborn was protected and guaranteed by implication in the Constitution prior to the Eighth Amendment?
There is another feature of the present article 40.3.3 which deserves mention. In the first sub-paragraph: “The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and as far as practicable, by its laws to defend and vindicate that right.”
The article does not purport to confer a right to life on the unborn: it recognises that such a right exists and guarantees that it will be defended and protected. That reflects a strand in our constitutional jurisprudence which treats certain fundamental rights as anterior to and not merely deriving from the Constitution.
It may be argued in the hypothetical scenario I have suggested that the court should not frustrate the will of the people in repealing article 30.3.3 by holding that the right to life of the unborn still exists as a right implied under article 40. 1 and 2, although not in the form enshrined in the repealed article. That argument would be unsustainable in the light of the actual wording of the repealed article which acknowledges the right to life of the unborn as pre-existing and as not conferred by that article.
It would, of course, be preferable if one could predict with certainty what the outcome would be of any challenge to the legislation which is introduced in the event of the repeal being carried. But some degree of uncertainty is unavoidable in this difficult and complex area. For my part, I accept that the control of abortion should be entrusted to the Oireachtas, subject to the jurisdiction of the courts to rule on its constitutional validity, and that this is the appropriate response to an admittedly complex problem in a mature democracy.
Ronan Keane was Chief Justice between 2000 and 2004