Give Me a Crash Course In . . . the Supreme Court abortion decision

Clarifying status of unborn allowed abortion-referendum wording to be finalised

The court  ruled the only right that the unborn has under the Constitution is the right to life set out in the Eighth Amendment. Photograph:Liam Burke/Press 22

The court ruled the only right that the unborn has under the Constitution is the right to life set out in the Eighth Amendment. Photograph:Liam Burke/Press 22

 

What did the Supreme Court decide this week?
The seven-judge court unanimously ruled the only right that the unborn has under the Constitution is the right to life set out in the Eighth Amendment, Article 43.3.3, inserted after a referendum in 1983.

How does this affect the upcoming referendum?
The constitutional status of the unborn has been clarified. Before this, there were conflicting High Court decisions, plus comments and statements made by various Supreme Court judges before 1983, which raised issues about whether the unborn had constitutional rights before 1983 and whether, after 1983, it had rights beyond the rights to life protected by the Eighth amendment.

The Supreme Court overturned findings by the High Court that the unborn had personal rights under Article 40.3.1 and Article 40.3.2.

It said the High Court was also wrong to find the unborn was a “child” within the meaning of Article 42A, inserted as a result of the 2012 Children’s Referendum, which requires the State to protect the rights of “all children”.

The court ruled, clearly and unequivocally, the only constitutionally protected right of the unborn is the right to life in the Eighth Amendment.

Before the appeal was heard, one of the judges, 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.The judgment has eliminated that uncertainty.

What would the opposite decision have entailed?
If the court had found the unborn had rights outside the Eighth Amendment, that had implications for the planned referendum and begged the question what’s the point of a referendum to repeal the Eighth if other provisions of the Constitution protect the unborn. Even if the Eighth was repealed, the potential would be there for litigation to protect the other identified rights of the unborn and possibly block legislation permitting abortion.

The State had expressed concern, if the Supreme Court upheld the High Court finding the unborn is a child, that would have far-reaching implications for the work of various State agencies, particularly Tusla. It said the child finding could impact on the medical treatment of pregnant women and wondered would the State be obliged, for example, to make the taking of folic acid compulsory for all women of child-bearing age.

What exactly does the Eighth Amendment say?
“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.”

What was the law before 1983?
Therein lies a question. The Supreme Court analysed remarks and statements by various judges before 1983 concerning the unborn’s right to life but concluded these did not amount to “decisions” by the courts and were instead “obiter dicta”, expressions of opinion not essential to a decision and therefore not legally binding as a precedent.

The Supreme Court concluded, before 1983, there was no formal court decision that the unborn had a right to life. It said the “most plausible” view of the position before 1983 was there was uncertainty about the constitutional position of the unborn and the Eighth was intended to remove that.

What happens next?
The Government is proceeding apace with plans for a referendum in late May. Within hours of the Supreme Court decision, the Cabinet approved the wording to be put to the people and the referendum Bill was introduced in the Dáil. The people will be asked whether they want to delete the Eighth Amendment and replace it with new wording stating “that provision may be made by law for the regulation of termination of pregnancy”.