The Supreme Court’s landmark ruling that the unborn has no constitutional rights beyond the right to life as set out in the Eighth Amendment clears the path for a referendum to repeal the constitutional ban on abortion. A different finding by the court could have derailed the Government’s plans for a public vote in late May; now, with the court’s unanimous decision, it can publish the referendum Bill and formally set the campaign in motion.
The case was initiated in 2016 by a Nigerian man and his Irish-citizen partner, who argued that the Minister for Justice should have taken into account when deciding on the man's deportation that his partner was pregnant with their child. The High Court judge, Mr Justice Richard Humphreys, agreed on the basis, he said, that the unborn enjoyed unwritten personal rights under the Constitution. Strictly speaking, this was an immigration case. But the implications of the High Court's decision went much further.
With an abortion referendum on the horizon, the State's appeal thrust the Supreme Court into the white-hot glare of public controversy. It has in the past taken months to decide far less complex cases than this, so the seven-judge court deserves credit for producing its lucid 120-page judgment in less than two weeks. Its decision could hardly be clearer. The minister was obliged to consider the fact of pregnancy in weighing up whether to deport, it found, and to take account of the fact that an Irish-citizen child – who would acquire constitutional rights when born – was on the way.
On both sides, however, the judgment itself should be welcomed as a serious, reasoned contribution to the law and to public debate
On the broader issue, however, the court overturned the High Court and found that the unborn had no inherent rights other than the right to life as set out in the Eighth Amendment. On another question that has divided opinion for decades – did the unborn have a right to life before the Eighth Amendment was passed in 1983 – the court opted not to offer a view. Having given the most complete account yet of the judicial debate on that issue, the court left the question hanging – arguing that its role is to interpret the constitution as it stands, not as it was 35 years ago.
Both sides in the abortion debate will take something from the decision. Anti-abortion campaigners will argue that the courts cannot be relied on to uphold the rights of the unborn post-repeal and, as they did in 1983, will raise the possibility of judicial-led liberalisation of the proposed 12-week abortion regime. Those on the pro-repeal side, however, will now see even more value in the enabling constitutional provision insisted on by the attorney general, believing it will nullify that judicial activism argument.
On both sides, however, the judgment itself should be welcomed as a serious, reasoned contribution to the law and to public debate. The politicians and the judges have had their say. Now it’s for the people to speak.