State opposes 'partisan' Pro Life Campaign from being heard in appeal over constitutional rights of unborn

The Pro Life Campaign (PLC) says its experience and expertise extending over 25 years, including legal expertise of Professor Wiliam Binchy, in protecting the rights of women and their unborn children would be of assistance to the court in deciding the legal issues.

Ben Ó Floinn BL, for the PLC, told the court today it wanted to provide submissions addressing the legal issues and this was not about seeking a platform for its viewpoint.

The State opposes the PLC being involved, arguing the case concerns Irish constitutional law, and the PLC does not meet the necessary legal test to be joined, as it cannot bring any expertise the lawyers already involved do not have.

The State was also concerned at the perception of a "partisan" organisation, which is campaigning for a particular outcome in the planned referendum on the Eight Amendment (the 1983 anti-abortion amendment), being given a role in the appeal, Mary O'Toole SC said.

Maurice Collins SC, one of a team of lawyers opposing the appeal on behalf of a Nigerian man, his Irish partner and their child, who was unborn when the case was initiated, said they were neutral on the PLC application as long as it did not interfere with the timing of the appeal, due to open on February 21st.

Counsel said his side clearly understood their role in this appeal and the PLC need not be concerned that the State's arguments would not be met "as forcefully as we consider appropriate".

Mr Justice Donal O'Donnell, Mr Justice Liam McKechnie and Ms Justice Elizabeth Dunne said they will rule tomorrow on the PLC's application to be joined as an amicus curiae, an assistant to the court on legal issues, to the appeal, due to open on February 21st.

It concerns findings of the High Court’s Mr Justice Richard Humphreys in July 2016 that the unborn has constitutional rights in addition to the right to life in Article 40.3.3 and is a “child” within the meaning of Article 42A with constitutional rights the State is required to protect and vindicate.

The State will argue the unborn is not a “child” within the meaning of Article 42A – inserted as a result of the 2012 Children’s Referendum – and that its only constitutional right is the right to life as set out in Article 40.3.3.

During the hearing of the PLC's application today, Cora Sherlock, in an affidavit for the PLC, said it is concerned that government proposals concerning the referendum on the Eighth Amendment are being "crafted" in a manner designed to undercut future arguments that the unborn child has residual rights under other Articles of the Constitution.

The PLC is concerned the State will press in this appeal for a decision that Article 40.3.3 embodies the totality of the rights of the unborn, she said.

The PLC believed it was "wholly inappropriate" for the State to ask the court to make such a "wide-sweeping adjudication" and was also concerned the fast-tracking of the appeal at the request of the State was not to the advantage of the unborn.

If there is a possibility of the Supreme Court making a comprehensive determination of the rights of the unborn, other than the rights under Article 40.3.3, every possible safeguard needs to be in place to ensure the position of the unborn child is "articulated thoroughly" before the court, she said.

While not questioning the integrity of the respondents, they had to deal with a disparity of resources between them and the State and were also being asked to shoulder responsibility for making arguments, not just for their clients, but "on behalf of every unborn child, present and future, in Ireland", she said.

In an affidavit for the State, solicitor Ross Murphy said, in the circumstances of the appeal, and the wider political context, giving a platform for advancement of a particular view by a single issue campaign group "must be viewed with caution".

The case is predominantly concerned with legal issues and the PLC does not meet the test for an amicus, he said. While taking issue with some of the statements of Ms Sherlock, those arguments were "primarily political" and of no relevance to the application, he added.