The Pro Life Campaign will apply to the Supreme Court on Tuesday to allow it to be heard in the State's forthcoming appeal concerning the extent of the constitutional rights of the unborn.
On Monday, Benedict Ó Floinn BL, for the organisation, told Chief Justice Frank Clarke that the group, arising from "concerns over recent developments", wished to be joined to the action as an amicus curiae – an assistant to the court on legal issues.
Mr Justice Clarke granted counsel permission to serve short notice of its application to be joined as an amicus and returned the matter to Tuesday, when he is due to hold a further case management hearing concerning the appeal.
The appeal is due to open before a seven-judge Supreme Court on February 21st and has been set down for two days.
It will potentially involve the courts’ widest-ever consideration of the extent of the unborn’s constitutional rights and the Supreme Court’s judgment in the case may affect the wording of this summer’s referendum on repeal of the Eighth Amendment to the Constitution – Article 40.3.3, which gives the unborn and its mother an equal right to life.
The appeal is against findings of the High Court's Judge Richard Humphreys in an immigration case in July 2016 that the unborn has constitutional rights in addition to the right to life enshrined in Article 40.3.3.
Mr Justice Humphreys found that the unborn is a “child” within the meaning of Article 42A, with significant constitutional rights that the State is required to protect and vindicate.
In its appeal, the State will argue the High Court got it wrong in deciding that the unborn has constitutionally-protected personal rights, equivalent to those of an Irish citizen child.
Its core argument is that the unborn is not a “child” within the meaning of Article 42A – inserted as a result of the 2012 children’s referendum – and its only constitutional right is the right to life as set out in Article 40.3.3.
Wide-ranging implications
If the Supreme Court decides otherwise, it will have wide-ranging implications for the rights of pregnant women, as well as for the functions of a range of agencies, particularly Tusla.
The Supreme Court will also be asked to consider an apparent clash between two other High Court judges, in judgments in two other immigration cases, about the extent of the rights of the unborn.
Other issues to be addressed in the appeal include the rights of unmarried couples and their children.
Those arise from Mr Justice Humphreys’s view that, in light of EU law and legal and societal changes, including laws permitting same-sex marriage, non-marital relationships attract constitutional protection under Article 41.
