Supreme Court reverses High Court determination on constitutional rights of the ‘unborn’

The Supreme Court has reversed the High Court’s determination that the “unborn” possesses inherent constitutionally protected rights other than those expressly provided for in article 40.3.3.

The question was considered as part of the State’s appeal to a High Court ruling concerning the planned deportation of a Nigerian man whose Irish partner was pregnant with his child.

The unanimous judgment was handed down in Limerick’s new courthouse this morning in a hearing broadcast live on TV.

Chief Justice Frank Clarke thanked court staff for their “great assistance during the difficult weather situation last week”.

Writing in a “lengthy” judgment, Mr Justice Clarke said that “neither the common law cases and statutory provisions, nor the pre- and post-Eighth Amendment cases relied on, when analysed and understood, support the High Court’s conclusions”.

He added: “The most plausible view of the pre-Eighth Amendment law was that there was uncertainty in relation to the constitutional position of the unborn which the Eighth Amendment was designed to remove.

“In addition the provisions of the two subparagraphs to Article 40.3.3 introduced by the Thirteenth and Fourteenth Amendments support the Court’s view that the present constitutional rights of the unborn is confined to the right to life guaranteed in Article 40.3.3 with due regard to the equal right to life of the mother.”

However, the court upheld the High Court’s declaration that the Justice Minister is obliged to consider the fact of pregnancy of the partner of a proposed deportee as a relevant factor in any decision to revoke a deportation order, and is obliged to give separate consideration to the likely birth in Ireland of a child of the potential deportee.

Moreover, the minister is obliged to take account of the fact that “an Irish citizen child will acquire on birth constitutional rights which may be affected by deportation”.

Therefore, the formal order of the Supreme Court was to dismiss the State’s appeal and affirm the declaration made by the High Court.

Responding to the judgment, Justice Minister Charlie Flanagan said: “I welcome the clarity that this Supreme Court judgement provides regarding the status of the unborn within the constitution.”

The minister added: “In relation to the implications for the status of potential deportees from the state with regard to their family status; this is a detailed and comprehensive judgement, and my Department, along with others will analyse it fully.”