The Supreme Court will today begin hearing an appeal whose outcome could throw the Government's plans for an abortion referendum into doubt. Depending on the court's ruling, the vote could be delayed by months, forcing a fundamental rethink of the proposed wording and approach.
Seven justices will sit this morning to hear the State's appeal of a High Court decision last summer that ruled for the first time that the unborn has rights in law beyond the constitutionally protected right to life. Lawyers for the State will seek to have the High Court decision overturned. If the State fails in its case, there will be significant implications for the protection of the unborn, not least in relation to the proposed referendum.
Government Ministers have been told they are almost certain to win the appeal; the judgment in the High Court, by Mr Justice Richard Humphreys, made new law on the subject, recognising rights for the unborn that no court previously had identified. But they acknowledge there is no certainty until a judgment is delivered, and they are increasingly nervous that anything other than a complete victory for the State side could thrown the plans for a referendum into confusion.
Original case
The case concerns a Nigerian man who came here in 2007, his Irish partner and their child, who was born in August 2015. The man was refused asylum. The couple took proceedings in July 2015 aimed at preventing his deportation and seeking residency on the basis of potential parentage of an Irish-born child. The child was not a party to the proceedings when they were initiated but was later joined to the case by Mr Justice Humphreys.
In his judgment granting the man leave to challenge his deportation, the judge found that an unborn child, including of a parent facing deportation, enjoys “significant” rights and legal position at common law, by statute, and under the Constitution, “going well beyond the right to life alone”. Many of those rights are “actually effective” rather than merely prospective, he said.
Mr Justice Humphreys also interpreted article 42A of the Constitution, inserted as a result of the 2012 children’s referendum, as affording protection to all children “both before and after birth”. Until then the rights of the unborn had been interpreted to mean the right to life inserted by the Eighth Amendment and now enshrined in the Constitution as article 40.3.3.
The potentially far-reaching consequences of the judgment caused the State to immediately appeal the decision of Mr Justice Humphreys. Given the implication for the forthcoming referendum, the Supreme Court granted an accelerated hearing. The case is listed for two days, and a judgment is expected after a few weeks.
Potential for complications
Although very few legal sources expect anything other than a successful appeal, the potential for complicating factors is nonetheless significant. Ministers say the case will see the seven judges asked to adjudicate on the extent of the rights of the unborn for the first time in the history of the State. As such, the Government cannot finalise the wording of the referendum until the judgment is published.
Because the High Court judgment grounded the rights of the unborn not just in article 40.3.3 but also in the children’s rights amendment, anything other than a comprehensive overturning of the High Court decision would complicate the referendum’s intention of allowing for abortion by deleting the existing constitutional ban in article 40.3.3. If the judgment, or that part of it, is not overturned, the Government may have to insert an article explicitly recognising a right to abortion.
The State is expected to argue the High Court erred in deciding the unborn has constitutionally protected personal rights beyond article 40.3.3. Any legal entitlements of the unborn are dependent, the State is expected to argue, on being born alive.
The Government says it intends to finalise the referendum wording by March 6th. That will be possible only if the Supreme Court produces a very rapid judgment and comprehensively overturns the High Court decision.
If either does not happen, the Government’s timetable for the referendum will start to slip.
