We respect the Supreme Court as the highest institution in the State, a forum in which “justice shall be administered” to all, without fear or favour. The Court has the duty, in final appeal, “to respect, and, as far as practicable, by its laws to defend and vindicate” the fundamental rights of those in its charge, especially the most vulnerable. I regret to say that it has failed lamentably in the discharge of this weighty responsibility, in its recent decision on immigration and unborn rights (known as the M case).
The basic right to life
It is an undeniable medical fact that an unborn child is capable of independently enjoying the most primitive form of the natural right to life, that is, the right not to have her tiny human life wilfully taken away or ended by another. In this respect it is a fundamental right, inalienable and imprescriptible, neither given by, nor taken away by, the Supreme Court. Yet that is precisely what they have done in respect of the unborn child. They have taken away all its rights up to, and including, the moment when the umbilical cord is cut. It is my view that every living human being, in fact, can be said to enjoy this negative right simultaneously and without conflict, because it simply requires that everyone else refrains from deciding to take away her life. The unborn child, as a human being, enjoys that restraining right independently of her mother. If we are willing to deny that minimal basic right to any living human being who is capable of enjoying it, we have no claim on the right for ourselves.
Does an unborn child have any other rights? The Supreme Court held that it does not, that birth is the “gateway” to all its other constitutional rights. This appears to misconstrue the meaning of a natural right. The capacity to exercise a natural right is not decisive. Some natural rights may always be enjoyed (e.g. the right not to be tortured), even when other rights cannot be exercised, for want of capacity. A child born prematurely and placed in an incubator is for a time every bit as dependent and incapable of exercising human rights as a baby in the womb. By what mad logic can it be lawful to kill one and not the other? If the capacity to exercise a right were the proper legal criterion, many adults would also lose their natural rights —and become non-persons— at various points of their lives. It is the capacity to enjoy a right that must be conclusive.
All children, born and unborn
The ‘children’s amendment’ solemnly affirmed by the people just over five years ago, expresses a wide and inclusive guarantee of the natural rights of all children. In language consistent with earlier fundamental rights provisions, the State “recognises and affirms the natural and imprescriptible rights of all children and shall, as far as practicable, by its laws protect and vindicate those rights.”
Interpreting narrowly the circumstances and supposed objective of the amendment, rather than the text itself, the Supreme Court held that it was not the intention of the people to include the unborn child in the phrase “all children,” in the general guarantees of Article 42A.1. How did the Supreme Court know this? Where did the court get this from? In citing the putative intention of the people in this way, the Supreme Court leaves itself open on several counts to a charge of wilful inconsistency.
In the X case, the Court decided that the right to life does not extend to the protection of one’s physical or mental health. Then, in the present case, it reasoned that “having regard to the nature of the rights of the child intended to be protected by Article 42A, it is difficult to see any right contained therein which could avail an unborn child.” With respect, it is not so difficult. Many important rights of a born child, other than the basic right to life, are equally relevant to and enjoyed by the same child long before her birth. They are not triggered by cutting the umbilical cord.
Any child, born or unborn, is entitled to the safeguarding of her developmental health and well-being. She has a right not to be subjected to a cruel or inhuman treatment, the wilful infliction of pain, or any medical or chemical intervention or experiment not intended to remedy her own medical needs. A moment’s reflection will remind us of the relevance of these and other basic human rights to the well-being of the unborn.
The wide terms of Article 42A.1 clearly acknowledged such natural rights and guaranteed to vindicate them for all children. By what awful logic have they now been denied to the unborn child by a decision of the Supreme Court? Is this really what the people “intended” in enacting the children’s amendment?
Again, in the course of its judgement, the Court approved a judicial observation on the meaning of the Eight Amendment to the effect that “nobody could dispute that the primary purpose of the referendum was to prevent decriminalisation of abortion without the approval of the people as a whole.” That being the case, how can the Supreme Court now stand over its decision in the X case, which produced a result diametrically opposed to the admitted intention of the people in 1983? Is it the case that the Court upholds the supposed will of the people when it suits its own judicial policies, but ignores it otherwise?
What part of “all children” in Article 42A.1 did the Supreme Court not understand? The Court held that “it is simply not possible to interpret that phrase as encompassing the unborn. They are separately dealt with in Article 40.3.3 of the Constitution.” This reasoning interprets a particular provision as implying an exclusion from a general one. That could only makes sense when both provisions deal with exactly the same matter. That is not the present case.
Article 40.3.3⁰ did not purport to give a comprehensive account of the constitutional rights of the “unborn” any more that it did the rights of a “mother.” It addresses a unique relationship, which for a time intertwines two natural rights. It would be absurd to suggest that, because the role of a mother is addressed specifically in one Article, a woman who happens to be a “mother” is thereby excluded from other personal constitutional guarantees. Neither can one logically conclude that a human being, who happens to be as yet “unborn,” is excluded from the general guarantees made to “all children” in Article 42A.1, merely because her gestational relationship with her mother is addressed in one particular provision.
The Supreme Court also excluded the possibility of unwritten or residual rights of the unborn elsewhere in the Constitution, despite the unanimous weight of earlier judicial observations to this effect. It concluded that “the only right of the unborn child as the Constitution now stands which attracts the entitlement to protection and vindication is that enshrined by the amendments in Article 40.3.3, namely the right to life, or in other words, the right to be born.”
The failure of the Court to consider the full text of the guarantee in Article 42A.1 before reaching this conclusion is inexcusable. It is also, once again, inconsistent. The Court rejected the natural law approach favoured by the High Court on the authority of its own 1995 decision that “the courts … at no stage recognised the provisions of the natural law as superior to the Constitution.” This rejection is unjustified on two counts.
First, the recognition of inalienable and imprescriptible rights, acknowledged in the text of the Constitution itself to be “antecedent and superior to all positive law,” cannot logically imply a conflict with the text of the Constitution which so acknowledges them. If the right is expressly acknowledged to be a “natural” right, the true source can only be human nature itself. This argument is a straw man.
Second, even if it did imply a conflict, the re-enactment of explicitly natural law terminology in the 2012 constitutional amendment regarding the natural rights of children, would, on a principle admitted by the Court, have the effect of re-affirming a natural rights theory in the Constitution and thus correcting the 1995 decision, which supposedly disqualified such concepts.
If there were no place for natural law principles in the Constitution, the words enacted in 2012 would be meaningless. But that proposition is simply a judge-made rule, dating from 1995, which itself reversed many years of earlier natural law jurisprudence. The 1995 rule cannot operate prospectively to set at nought the words of an amendment enacted 17 years later. It must, on its own principles, yield to the sovereign correction made by the people in the 2012 amendment.
The source of rights
None of this is to suggest that the Supreme Court is either wilfully antagonistic to the rights of the unborn or incompetent in the interpretation of the Constitution. The root of the problem, I suggest, is a shared mind-set that is firmly closed to the notion of natural human rights, despite the clear language of the Constitution itself.
The Court, for example, asked itself whether it would be “possible to look at Article 42A.1 as creating a standalone provision conferring rights on children?” It did not trouble to analyse the words “natural and imprescriptible,” used here and elsewhere in the Constitution to characterise fundamental rights. These words are clearly essential, however, to understanding the proper meaning of the constitutional guarantees.
The Constitution does not purport to confer natural rights on anyone. The plain meaning of Article 42A.1, for example, is that it acknowledges and protects the natural rights of all children, which evidently includes the right to life of a child. What human right could be more “natural and imprescriptible”? One does not have to have the intellect of a Cicero or an Aristotle to appreciate that a “natural” right is precisely one that is drawn from human nature. It does not depend for its origin or authority on any human law, although it requires such laws for its effectiveness. The Constitution, as a statement of the basic norms of justice in human society, must acknowledge and vindicate such rights.
The power of the people to make laws is not absolute. As legislators, attending to the common good, we are circumscribed by our own nature and by the inherent principles of human equality and justice. We cannot validly make laws that go against that nature to the extent of depriving others of their basic natural rights. In the last analysis, Courts of Justice have an inherent jurisdiction to strike down even a purported constitutional amendment that deprives human beings of their most basic natural rights.
Absolute democratic sovereignty
I believe therefore that the Supreme Court decision on natural rights in the recent immigration case is profoundly mistaken. It is based on a judicial policy of absolute democratic sovereignty, which reduces natural rights to the level of a civil right such as Irish citizenship, conferred on us —or withdrawn— by leave of fifty percent plus one of our fellow citizens who cast a valid vote in a referendum. “The Constitution can, and should, be interpreted to mean what it says, and perhaps as importantly does not say.” Thus, if Article 40.3.3⁰ (the Eighth Amendment) is repealed in the forthcoming referendum, “the right to be born” will disappear without trace. Thereafter, no unborn child will have any constitutional protection whatever. On the same mistaken principle, a repeal of Article 42A.1 would be sufficient to deprive all children of their “natural and imprescriptible rights,” however contradictory such a proposition might be.
The Supreme Court has thus abandoned any possibility of a restraint on unjust law-making by reference to natural rights. If a majority may lawfully vote to deprive innocent human beings of their most basic natural right, contrary to the fundamental principles of equality and justice, there can be no judicial restraint whatever in regard to other rights.
This is an Irish version of the infamous ‘blue-eyed babies’ conundrum discussed by theorists of parliamentary sovereignty. Could the people decide to deprive all blue-eyed babies of their right to life? Perhaps more plausibly, could a majority decide at referendum that a wealthy minority can be deprived of their property? Can the people validly enact any radically discriminatory provision it might choose? Is the right to life itself thus to be put in the balance, like that of a hapless gladiator slave in a Roman arena awaiting the thumbs up or thumbs down of a blood-maddened populace or a delusional Caesar?
This calamitous decision will remain in force until perhaps reversed by some future Supreme Court. In the meantime, it leaves me in no doubt that to repeal Article 40.3.3⁰ in such circumstances would complete the wanton destruction of the very foundations of human rights in our Constitution, not to mention the countless human lives that would be lost.