No equal right to life if law embraces suicide risk

The Constitution, in article 40.3.3, gives a right to life to an unborn child. It says: “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 underlying idea behind putting human rights in the Constitution is to ensure that they cannot be easily reduced just because a (possibly temporary) majority in public or parliamentary opinion wants to do that to meet a popular demand.

This constitutional right to life of a yet unborn child was inserted into the Constitution by the people in a referendum in 1983. In the X case in 1992,the Supreme Court decided, to the surprise of many, that this article could be construed as allowing for the life of an unborn to be ended if the mother was believed to be suicidal.

Following a recent European Court of Human Rights case, the Government is now contemplating introducing a law that would say the life of an unborn child may be ended when there is a threat of suicide by the mother-to-be.

It also proposes to clarify that where there are medical threats to the life of the mother, and an appropriate medical treatment may involve the ending of the life of the unborn child, this may be permitted.

Would a law including a provision allowing a suicide threat to be a basis for ending the life of an unborn child be consistent with the plain words of the Constitution, which require the State to “defend and vindicate” the unborn child’s “equal” right to be allowed to live? I believe the answer to the question is no.

The Irish Constitution belongs to the people. It uses language, ie words, to convey certain understandings of what the Irish people guarantee one another. Because the words in the Constitution may be changed only by the people, it follows that the words in the Constitution should be interpreted as the same words would be understood in daily usage.

They should not be reinterpreted in some arcane way that can be understood only by a priesthood of constitutional lawyers. If that were to be the standard of interpretation, how could the people be expected to make informed and intelligent decisions in constitutional referendums?

Look at the actual words in the Constitution: article 40.3.3 acknowledges an equal (my emphasis) right to life of a mother and of her unborn child. The sentence would have made have sense even if the word “equal” was not there. It would also have made sense if the sentence had said that “due regard” was to be had to a “superior right to life” of the mother. But that is not the wording of the Constitution.