The Supreme Court ruling on the rights of the unborn will make it easier on the Government to hone legislation to advance the holding of a referendum on the Eighth Amendment to the Constitution before the summer.
The fact that the decision of all seven judges was unanimous will add impetus to the Government’s plans to hold a poll in May which, if carried, will mark one of the biggest shifts in Irish society in generations.
It was a landmark ruling on the substantive issue of the rights of the unborn and is likely to represent one of the most important decisions of the court in more than a decade.
It disputed the reasoning but did not overturn the decision of a High Court judge in relation to an immigration dispute involving a Nigerian man who argued that he should not be deported because the unborn child being carried by his Irish partner had constitutional rights.
Chief Justice Frank Clarke ruled: “While it does not alter the outcome of this case, the minister is accordingly not
obliged to treat the unborn as having constitutional rights other than the rights contained in Article 40.3.3 (the Eighth Amendment).
“The present constitutional rights for the unborn are confined to the right to life guaranteed in Article 40.3.3.”
It follows the decisive recommendation last December of the Oireachtas committee on the Eighth Amendment and is likely to bring further clarity to the kind of proposition the people will be asked to vote on.
Some of the reasoning advanced in favour of a constitutional right for the unborn was grounded on Article 42A, the 31st Amendment which was passed in November 2012 to strengthen the rights of children. The High Court determination that the unborn is a child for the purposes of Article 42A was reversed.
Welcome or not, the decision of the Supreme Court provides much-needed clarity in the abortion debate. It is now up to the politicians to come up with a final draft of appropriate wording to be put to the people in the referendum.
While some pro-life campaigners will be disappointed at the ruling, others may use it as a means of advancing their cause, arguing that repeal of the Eighth will mean there is no recognised constitutional protection for the unborn.
At the same time, pro-choice advocates will see in it a willingness of the courts to acknowledge the enormous social changes that Ireland has undergone in recent decades and the necessity to confront, once and for all, this most contentious issue.
The judiciary — known as the Third Estate — has had its say. It is now time for the First Estate, which is the executive arm of government, to act so that the Second Estate (the legislature) can bring final proposals for the referendum.
No doubt the media, often referred to as the Fourth Estate, will have its say but the most important estate of all may be the fifth, ie the people.
It will be up to all of us who comprise the Fifth Estate to decide what kind of Ireland we want for ourselves, for our children, and our children’s children.