John Bruton puts it up to Enda Kenny - "Equal means equal, whether the word “equal” is used by lawyers or by mathematicians. And, in any normal language, a risk is not equal to a certainty"

"Keep smiling Kenny, while I stick this knife in"

Former Taoiseach, John Bruton, has a very good article in today's Irish Times.  Read the whole thing below. This will undoubtedly make Mr Kenny squirm a little.  He writes:

The Constitution, in article 40.3.3, gives a right to life to an unborn child. It says: “The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.”

The underlying idea behind putting human rights in the Constitution is to ensure that they cannot be easily reduced just because a (possibly temporary) majority in public or parliamentary opinion wants to do that to meet a popular demand.

This constitutional right to life of a yet unborn child was inserted into the Constitution by the people in a referendum in 1983. In the X case in 1992,the Supreme Court decided, to the surprise of many, that this article could be construed as allowing for the life of an unborn to be ended if the mother was believed to be suicidal.

Following a recent European Court of Human Rights case, the Government is now contemplating introducing a law that would say the life of an unborn child may be ended when there is a threat of suicide by the mother-to-be.

It also proposes to clarify that where there are medical threats to the life of the mother, and an appropriate medical treatment may involve the ending of the life of the unborn child, this may be permitted.

Would a law including a provision allowing a suicide threat to be a basis for ending the life of an unborn child be consistent with the plain words of the Constitution, which require the State to “defend and vindicate” the unborn child’s “equal” right to be allowed to live? I believe the answer to the question is no.

The Irish Constitution belongs to the people. It uses language, ie words, to convey certain understandings of what the Irish people guarantee one another. Because the words in the Constitution may be changed only by the people, it follows that the words in the Constitution should be interpreted as the same words would be understood in daily usage.

They should not be reinterpreted in some arcane way that can be understood only by a priesthood of constitutional lawyers. If that were to be the standard of interpretation, how could the people be expected to make informed and intelligent decisions in constitutional referendums?

Look at the actual words in the Constitution: article 40.3.3 acknowledges an equal (my emphasis) right to life of a mother and of her unborn child. The sentence would have made have sense even if the word “equal” was not there. It would also have made sense if the sentence had said that “due regard” was to be had to a “superior right to life” of the mother. But that is not the wording of the Constitution.

The word “equal” is there, referring to the right to life of both mother and unborn child, and it was put there with the explicit approval of the people. It would be hypocritical to pretend that the Constitution is not framed as it is, and hypocrisy is not a solid basis for constitutional interpretation.

How ought the words “equal right to life” be interpreted? Many words we use in daily language have ambiguous or various meanings, but the word “equal” has only one meaning. Equal means equal, whether the word “equal” is used by lawyers or by mathematicians.

And, in any normal language, a risk is not equal to a certainty. A risk that someone might unilaterally end their life is not equal to a certainty of the ending of another person’s life by the actions of that person or of another. That, in simple terms, is the difficulty with legislation that says that a threat or an idea of suicide is a ground for ending the life of a constitutionally recognised third party, an unborn child.

A law that took away a right to life of that unborn child before the right in question could be exercised independently could hardly be interpreted as “defending and vindicating” the same right, as the Constitution requires.

Judge Hederman put it this way, in his minority judgment, in the Supreme Court on the X case. “The eighth amendment establishes beyond any dispute that the constitutional guarantee of the vindication and protection of life is not qualified by the condition that the life must be one which has achieved an independent existence after birth.

“The right of life is guaranteed to every life, born or unborn. One cannot make distinctions between individual phases of the unborn life before birth, or between unborn and born.”

The other judges in their X case judgments offered two reasons for not treating the right to life of the unborn child as equal, in practice, to that of its mother, notwithstanding the words of the Constitution.

One was that the mother’s life is to be preferred because she has wider responsibilities. Then chief justice Finlay said that the court must concern itself “with the position of the mother within a family group, with persons on whom she is dependent”.

Given that in every case a mother of an unborn child will already be a member of a family group, that interpretation could allow abortion in almost any case. In any event, how is it to be argued that the as yet unborn child is not also a member of a family group, consisting not only of its mother, but also of its father?

The other argument used in the Supreme Court was that the life of the mother was a life in being, whereas the life of the unborn child was “contingent”. The late judge McCarthy said: “The right of the girl here is a right to a life in being; the right of the unborn is to a life contingent; contingent on survival in the womb until successful delivery.”

Essentially he was arguing that once a right is contingent on the behaviour of another person, it does not enjoy the protection of the Constitution. That is a really radical doctrine, which, carried to its conclusion, would undermine almost all human rights law. All lives are “contingent” on the behaviour of others. The life of a baby after birth is certainly “contingent” on the care given to it by its mother and by others.

For these reasons, I would argue that the Oireachtas should interpret the words in the Constitution in their normal meaning, particularly the simple word “equal”.

In considering legislation, the members of the Oireachtas should read for themselves the words in the Constitution, and the X case judgment, and decide for themselves what they can or must do in respecting the Constitution.

The Supreme Court does not instruct the legislature on how to legislate, and participants in each branch of the State should interpret the words of the Constitution as they are actually written, rather than as some of them might retrospectively prefer them to have been written.Members of the Oireachtas, in particular, should read the words of the Constitution, in the same way their constituents, who are the authors of the Constitution, would read them.

That should leave them fully free to frame legislation to deal with the C case as decided by the European Court of Human Rights, and with the Savita Halappanavar case, that would be consistent with article 40 of the Constitution. Neither case involved a threat of suicide. They involved medical judgment of objective medical risks.

On the other hand, to introduce a law providing that an expression of a threat of suicide by one person would be sufficient ground for the taking away of the life of another, would not be in accord with the actual words in the Constitution. There would be no “equal” right to life in such a law, and an equal right to life is what the Constitution requires.

If the Oireachtas does not like the way article 40.3.3 of the Constitution is framed it could of course ask the people if they wished to amend it. Personally I would not favour such a change.

But, in the meantime, the Oireachtas should interpret plain language plainly, and forbear from legal sophistry. To do otherwise would be to leave the constitutional protection of the most profound of all human rights, the right to be allowed to live and breathe, resting on sand. It would institute a rule of convenience, at the expense of a rule of rights.

JOHN BRUTON  is a former taoiseach