Irish Series: Landmark decision fof Supreme Court judges paves way to Repeal the 8th

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The Supreme Court in Ireland has overturned a High Court decision discussed in detail in Articles 1 and 2 of this series and determined that protections afforded to children under Article 42A do not extend to the unborn child and not beyond the right to life.

This landmark decision paves the way for the much anticipated and hotly debated abortion referendum to take place as expected in May 2018.

The seven judges of the Supreme Court handed down an unanimous ruling which said that the Minister is accordingly not obliged to treat the unborn child as having constitutional rights other than those rights conferred in Article 40.3.3, ie the Eighth Amendment. What is particularly striking about the decision is the fact that it was unanimous.

If the interpretation of the rights afforded to the unborn child as handed down in the High Court ruling in 2016 was upheld, it would have meant that there was a significant clash between the woman’s right to acces abortion services and the unborn child’s rights, for example to not have its parent deported, as was the circumstance in this case.

The Judgment clears the path for the Irish Government to publish draft legislation for the proposed Eighth Amendment Referendum. If the referendum is passed to remove the Eighth Amendment as currently drafted, it would mean that the protection currently afforded to the unborn child (ie Right to Life) is removed and the unborn child would not be protected at all within the Irish Constitution, therefore leaving it open for the State to legislate to put protections in place around abortion, such as time limits. The proposed wording is for unlimited abortion up to 12 weeks into a pregnancy. In the UK, pregnancy can be terminated up to 24 weeks.

As it currently stands, the unborn child’s right to life trumps a pregnant mother’s rights save in exceptional circumstances. The unanimous decision of the Supreme Court judges means that the State can legislate to protect human life in a manner which upholds a pregnant person’s rights.

Caoimhe Boyce is a dual-qualified solicitor with a real interest and working knowledge of the legal systems on both sides of the Irish Ocean. For further information, please contact her on cboyce@meaby.co.uk.

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