Supreme Court judgment on unborn to be delivered on Wednesday

By Ann O’Loughlin

The Supreme Court will give its judgment concerning the extent of the constitutional rights of the unborn on Wednesday in Limerick.

The seven judge court has been working on its decision almost from the moment it reserved judgment on February 15th.

The entrance to the new state of the art multi million euro courthouse on Mulgrave St , Limerick. Pic: Liam Burke Press 22

It will be delivered this Wednesday during the historic first ever sitting of the Supreme Court in Limerick.

Although the timescale involved is unusually tight for a case raising such significant constitutional issues, the court previously indicated its awareness the outcome of the case could have implications for the planned referendum on whether to repeal the Eighth Amendment next May.

For those reasons, it agreed to fast-track the case, made directions for exchange of lengthy detailed submissions on the legal issues, and heard it over two days.

In a pre-hearing ruling refusing to allow the Pro Life Campaign be joined to the case, Mr Justice O’Donnell also remarked, if the people are going to vote on the law, there should not be “avoidable uncertainty” on what that law is.

The case involves an appeal by the State against findings by the High Court the unborn has constitutional rights beyond the right to life set out in the Eighth Amendment, Article 40.3.3, which guarantees equal protection for the right to life of the unborn and its mother.

The High Court’s Mr Justice Richard Humphreys said the unborn enjoyed rights under the personal or unenumerated rights provisions in Article 40.3.1 and Article 40.3.2.

He also held the unborn is a child within the meaning of Article 42A, which requires the State to protect and vindicate the rights of “all children”.

Although the judgment was given in an immigration case, the findings, if upheld, have implications well beyond immigration cases.

In its appeal, the State has essentially asked the Supreme Court to find that the unborn has no constitutionally protected rights beyond the right to life in Article 40.3.3 and cannot invoke, or have invoked on its behalf, any other constitutional rights.

It argued the unborn has a constitutionally protected right to be born and any other rights only become effective on a live birth. Article 40.3.3, it submitted, recognises unborn as a “distinct class” from the constitutional terms “citizens”, “persons” and “children”.


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