By Ann O'Loughlin
The Pro Life Campaign will apply to the Supreme Court tomorrow to allow it to be heard in the forthcoming appeal concerning the extent of the rights of the unborn.
Today, Benedict Ó Floinn BL, for the Campaign, told the Chief Justice Mr Justice Frank Clarke that the group, arising from "concerns over recent developments", wished to be joined to the action as an amicus curiae - an assistant to the court on legal issues.
Mr Justice Clarke granted counsel permission to serve short notice of its application to be joined as an amicus and returned the matter to Tuesday when he is due to hold a further case management hearing concerning the appeal.
The appeal is due to open before a seven-judge court on February 21 and has been set down for two days.
It will potentially involve the courts’ widest ever consideration of the extent of the unborn’s constitutional rights and the court's judgment may affect the wording of this summer’s referendum on repeal of the Eighth Amendment of the Constitution - Article 40.3.3, giving the unborn an equal right to life to its mother.
The appeal is against findings of the High Court’s Mr Justice Richard Humphreys in July 2016 that the unborn has constitutional rights in addition to the right to life in Article 40.3.3 and is a “child” within the meaning of Article 42A with constitutional rights the State is required to protect and vindicate.
The State will argue the High Court got it wrong in deciding the unborn has constitutionally protected personal rights, equivalent to those of an Irish citizen child, extending beyond the right to life in Article 40.3.3.
Its core argument is that the unborn is not a “child” within the meaning of Article 42A – inserted as a result of the 2012 Children’s Referendum – and its only constitutional right is the right to life as set out in Article 40.3.3.
If the Supreme Court decides otherwise, that has wide-ranging implications for the rights of pregnant women, as well as for the functions of a range of agencies, particularly Tusla, the State believes.
The State will be represented in the appeal by three senior counsel – Mary O’Toole, Nuala Butler and Denise Brett; and three junior counsel, Simon Mills, Silivia Martinez Garcia and Andrea Mulligan.
The lawyers who acted for the plaintiffs in the High Court case are opposing the appeal and will be represented by a team of four barristers, senior counsel, Michael Conlon and Maurice Collins, and junior counsel, Paul O’Shea and Irene Fisher.
While Mr Justice Humphreys’ judgment was given in an immigration case, the implications of his findings - if upheld - extend well beyond immigration cases.
The Supreme Court will also be asked to consider an apparent clash between two other High Court judges, in judgments in two other immigration cases, about the extent of the rights of the unborn.
Other issues to be addressed in the appeal include the rights of unmarried couples and their children. Those arise from the High Court’s view that, in light of EU law and legal and societal changes, including laws permitting same-sex marriage, non-marital relationships attract constitutional protection under Article 41.