Supreme Court Ruling – Rights of the Unborn

Recent Supreme Court Ruling: Rights of the Unborn

A seven judge Supreme Court, having heard two days of evidence, has unanimously reversed the High Court’s determination that that the unborn possesses rights under our Constitution in addition to the right to life guaranteed by Article 40.3.3 of the Constitution as inserted by the Eight Amendment. This appeal had the potential to derail the Government’s commitment to reform the State’s strict abortion laws and the long anticipated abortion referendum.

The substantive case concerned the issue of immigration and the factors that the Minister for Justice and Equality must take into account when considering an application relating to deportation where it was expected that the potential deportee would become the father of a child.

The Supreme Court appeal centred on the High Court finding of Mr. Justice Richard Humphreys that the unborn has constitutional rights in addition to the right to life in Article 40.3.3 and is a “child” within the meaning of Article 42A with constitutional rights which the State has a duty to protect and vindicate.

Article 42A was inserted into the Constitution in 2012 following the Children’s Referendum and recognises the “natural and imprescriptible “rights of “all children” and that the State “shall as far as practicable by its laws, protect and vindicate those rights”. Justice Humphrey in the High Court had found that the phrase “all children” in Article 42A applied to the unborn. The Supreme Court reversed this finding and restated the position that the present constitutional rights of the unborn is confined to the right to life guaranteed in Article 40.3.3 with due regard to the equal right to life of the mother.

The effect of the Supreme Court’s finding in this case is that it is now clear and unequivocal that the only constitutionally protected right of the unborn is the right to life contained in Article 40.3.3 as inserted by the Eighth Amendment. Prior to the hearing of the appeal Mr Justice Donal O’Donnell, had said, if the people are going to vote on the law, there should not be “avoidable uncertainty” about what the law is. This landmark judgment has eliminated any uncertainty concerning the constitutional rights of the unborn.

The judgment was delivered by the Chief Justice, Mr Justice Frank Clarke, sitting with Mr Justice Donal O’Donnell, Mr Justice William McKechnie, Mr Justice John Mac Menamin, Ms Justice Elizabeth Dunne, Ms Justice Iseult O’Malley and Ms Justice Mary Finlay Geoghegan, during a historic first sitting of the Supreme Court in Limerick on the 8th March 2018.

Read the full Judgment here: