Cardinal Desmond Connell has got it wrong, John Rogers believes, and those opposed to abortion may be mistaken to rely on his interpretation.
I have read Cardinal Connell's analysis (The Irish Times, Thursday) advising those opposed to abortion to be cautious before rejecting the proposed amendment to the Constitution. I believe the Cardinal is in danger of being in serious error on the question of whether protection is given to pre-implantation unborn life by the proposed constitutional amendments and the proposed Protection of Human Life in Pregnancy Act 2002.
Fundamental to this issue is the absence from the Constitution of a definition of "the unborn".
Article 40.3.3 which was adopted by the people in 1983 provides: "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 proposed new sub-article 40.3.4, if adopted by the people next week, will provide: "In particular the life of the unborn in the womb shall be protected in accordance with the provisions of the Protection of Human Life in Pregnancy Act 2002."
If the proposed amendments to the Constitution are carried, their effect will be that should the Protection of Human Life in Pregnancy Bill be enacted within 180 days from next Wednesday, then the totality of the legal and constitutional protection for "the unborn in the womb" will be found in the two constitutional provisions quoted above and in the proposed Act of 2002.
What would be the extent of that protection in the new constitutional and legal order were the proposed Act enacted as envisaged? Would protection extend to the unborn prior to implantation in the womb as Cardinal Connell contends?
The answer lies in the application of the doctrine which requires the interpretation of the Constitution as an harmonious instrument. This means that relevant provisions of the Constitution must be read and construed together and not in isolation so as not to conflict with other relevant provisions or principles of the constitutional order.
One must read and construe the proposed new sub-article and Article 40.3.3 together. The natural and ordinary meaning of these provisions taken together is that the proposed new clause provides particularly for the protection of "the life of the unborn in the womb" while Article 40.3.3 sets out the principle that the State must defend and vindicate the right to life of the unborn with due regard for the equal right to life of the mother.
Dr Connell's argument does not address (although it is something that has evidently caused him and his legal advisers considerable concern) the possibility that applying the principle of harmonious constitutional interpretation, the provisions of Article 40.3.4 may have the effect of limiting the definition of the unborn under Article 40.3.3 to the post-implantation unborn.
It has to be said that whether Article 40.3.3 as it stands on its own protects the pre-implantation unborn is a matter of considerable doubt, but a possible effect of the incorporation of the proposed Article 40.3.4 is to lend support to an interpretation of Article 40.3.3 which does not include the pre-implantation unborn. The new constitutional provision, if adopted, will expressly provide that such protection for the unborn in the womb be sourced in the proposed new Act of 2002.
A striking feature of the proposed Act of 2002 is that it does not contain a definition of "unborn life in the womb" although it is entitled "an Act to protect human life in pregnancy, to repeal sections 58 and 59 of the Offences Against the Person Act 1861 and to provide for related matters".
The proposed Act would provide a definition of "abortion" as follows: "The intentional destruction by any means of unborn human life after implantation in the womb of a woman".
Section 1 of the proposed Act of 2002, if enacted, would criminalise abortion as defined above. So it is clear and there is no ambiguity; the proposed Act protects only "unborn human life after implantation in the womb of a woman" by way of criminalising abortion as defined.
This being the case, it cannot be stated with any confidence that the Constitution, as amended by the addition of Article 40.3.4 will protect "the life of the unborn in the womb" before implantation, which is what Cardinal Connell contends to be the case.
Although an argument can be made that there is residual protection in Article 40.3.3 for unborn life prior to implantation in the womb, I have come to the conclusion that that is not an argument which could prevail in light of the clear meaning that must be given to Article 40.3.3 and the proposed Article 40.3.4.
Accordingly I feel I must say that the Cardinal's assurance to those opposed to abortion on this issue is unconvincing and one on which it would be unwise for them to rely.
John Rogers SC was Attorney General from 1984 to 1987