No equal right to life if law embraces suicide risk

The word “equal” is there, referring to the right to life of both mother and unborn child, and it was put there with the explicit approval of the people. It would be hypocritical to pretend that the Constitution is not framed as it is, and hypocrisy is not a solid basis for constitutional interpretation.

How ought the words “equal right to life” be interpreted? Many words we use in daily language have ambiguous or various meanings, but the word “equal” has only one meaning. Equal means equal, whether the word “equal” is used by lawyers or by mathematicians.

And, in any normal language, a risk is not equal to a certainty. A risk that someone might unilaterally end their life is not equal to a certainty of the ending of another person’s life by the actions of that person or of another. That, in simple terms, is the difficulty with legislation that says that a threat or an idea of suicide is a ground for ending the life of a constitutionally recognised third party, an unborn child.

A law that took away a right to life of that unborn child before the right in question could be exercised independently could hardly be interpreted as “defending and vindicating” the same right, as the Constitution requires.

Judge Hederman put it this way, in his minority judgment, in the Supreme Court on the X case. “The eighth amendment establishes beyond any dispute that the constitutional guarantee of the vindication and protection of life is not qualified by the condition that the life must be one which has achieved an independent existence after birth.

“The right of life is guaranteed to every life, born or unborn. One cannot make distinctions between individual phases of the unborn life before birth, or between unborn and born.”

The other judges in their X case judgments offered two reasons for not treating the right to life of the unborn child as equal, in practice, to that of its mother, notwithstanding the words of the Constitution.

One was that the mother’s life is to be preferred because she has wider responsibilities. Then chief justice Finlay said that the court must concern itself “with the position of the mother within a family group, with persons on whom she is dependent”.

Given that in every case a mother of an unborn child will already be a member of a family group, that interpretation could allow abortion in almost any case. In any event, how is it to be argued that the as yet unborn child is not also a member of a family group, consisting not only of its mother, but also of its father?

The other argument used in the Supreme Court was that the life of the mother was a life in being, whereas the life of the unborn child was “contingent”. The late judge McCarthy said: “The right of the girl here is a right to a life in being; the right of the unborn is to a life contingent; contingent on survival in the womb until successful delivery.”