Legislating for Article 40.3.3: Cahill on Equality of Life

by Human Rights in Ireland on January 16, 2013

Author: Dr Maria Cahill, Faculty of Law, University College Cork

The Wisdom of Dissent in the X Case

Freedom of expression is not properly protected if we only allow those we agree with to speak; rights of the accused are not properly protected if we only accord them to those whom we know are innocent, and the right to life is not properly protected if we only allow those whose existence does not distress us to live. As the readers of this blog are keenly aware, civilisations are made when we take fundamental rights seriously even in the hard cases.

Ireland embraces a radical protection of the right to life by prohibiting the death penalty (Article 15.5.2) even though there are many countries in the world in which this is legal; by pursuing a policy of military neutrality even though there are many countries in the world which do not hold this policy; and by protecting the right to life of the unborn (Article 40.3.3) even though there are many countries which allow abortion on demand.

In his judgment in the X Case, Mr Justice Hederman sustains his focus over several pages on the equality of protection for life guaranteed to the mother and the unborn child by the Constitution noting that:

“the right of life is guaranteed to every life born or unborn. One cannot make distinctions between individual phases of unborn life before birth, or between unborn and born life” (at p.72) and again that “the terms of the Constitution totally exclude any possible suggestion that the unborn life is any less a human life than a life which has acquired an existence independent of its mother” (at p.74-75).

That radical equality of protection for life guaranteed by the Constitution compels him to dissent from the majority position adopted by his colleagues; a dissent he explains using the following analogy:

“If this young person without being pregnant had suicidal tendencies due to some other cause then nobody would doubt that the proper course would be to put her in such care and under such supervision as would counteract such tendency and do everything possible to prevent suicide. … There would be no question whatsoever of permitting another life to be taken to deal with the situation even if the intent to self-destruct could be traced directly to the activities or the existence of another person.” (at p.75-76)

Supposing it had happened in 1992 that the 14-year-old girl who was at the centre of the X case claimed that she was entitled to make private arrangements to have the life of man who raped her terminated. The thought that she might meet him in the town where they lived or at the next sports day at school caused her such extreme stress and anxiety that she had arrived at the point where she was suicidal. After his release from prison, she would face the risk every day of her life that she might accidentally bump into him on the street; she couldn’t go on living until she knew he was dead.

Nobody could deny the emotional strength of that claim. No man or woman could brush off such an honest expression of real hurt or dismiss such a deeply-felt need to remove from the face of the earth the person who caused that pain.

And yet, were such a case to come before the court, the legal answer would be that the law does not grant to victims of rape the right to contract to have the life of the rapist terminated. Even if it seems cold and unfeeling, this is one of the choices that she does not have.

Similarly, if a man were to become suicidal on the break-up of his relationship, or the loss of his job, or following a false accusation of rape, the law would say that although we do not disregard his suffering, he cannot contract to have the life of his ex-girlfriend or his ex-boss or his accuser terminated. Those are choices that the law does not grant.

Article 40.3.3 of the Constitution makes it absolutely clear that the right to life of the unborn child in the womb is as valuable as the life of the mother, that of the rapist and that of the ex-girlfriend.

The majority of Supreme Court judges in the X case announced the principle that if the Constitution holds two lives to be equally valuable but one person insists that they are suicidal because of the continued existence of the other, then that first person can contract to have the life of the other terminated. Legislating for X means confirming and endorsing this principle.

To the contrary, justice requires us to hold that the equal protection of life guaranteed by the Constitution means that no person’s life can be disposed of because his or her continued existence leads to suicidal tendencies in another person. In doing so, we are not – no more than Hederman J – indifferent to the harrowing ordeal experienced by this young woman and other young people who are suicidal, but we insist, even in those very difficult circumstances, on taking seriously the radical equality of protection for life guaranteed by the Constitution.

  • Are the analogies here really logically supportable? Are the sources of suffering comparable? Pregnancy entails a series of intimate encounters and processes, corporeal obligations and burdens which have no ready analogy in any adult to adult context.

    • Benedicte Sage-Fuller

      I accept that pregnancy means a different physical experience than let’s say, simple visual encounter with an adult. In fact there is no other type of physical experience between two human beings (mother and child) that is comparable to pregnancy. The analogy was not between the types of physical encounters (seeing, talking, touching, being pregnant with, caring for, feeding, lifting, washing, etc), but as encounters between human beings (between adults, between adult and child, between man and woman, between mother/father and unborn child, between disabled person and fully autonomous person, etc).
      You cannot exclude the unborn from the analogy just by virtue of the fact that it is in a unique type of relationship. For instance you could qualify the relationship by saying that at least it only lasts for 9 months, whereas another adult could continue to live next door for years, and always represent a source of suffering. Or that a person who becomes profoundly disabled following a car accident engages involuntarily in a very long-lasting physical encounter with their parents/carers (being entirely dependent on them, making them physically tired, morally anxious and worried, something like “a series of intimate encounters and processes, corporeal obligations and burdens”). Should we also exclude that type of encounter?
      My understanding of the point made by Dr Cahill is that under the Constitution, the unborn is a human person, and that as such another human person does not have the liberty to decide to abort it, no more than he/she has the liberty to decide to kill another adult human being, or child human being.

      • I don’t have the liberty to kill another human being because they interfere with or unsettle my personal projects by their words or actions, or because they make significant demands on me – that’s true. But pregnancy is unique because it entails that another human being’s very life (as opposed to their past or present actions) may impact for a substantial period of time directly on my very life, my very body

        In the adult to adult scenarios set out in your comments, the state can, and we might argue is obliged, to assist the individual to ‘exit’, insofar as possible, situations of undue suffering. For instance, domestic violence law can assist a woman to exit a home shared with her rapist. As for the rapist next door, we could argue that government should also assist a woman in that circumstance to move away if she chose. It will certainly act in cases of harassment, and we would assume that no reasonable government could institute a policy of moving rapists in next door to their victims.

        As to your long-term care example, disability rights advocates argue for mechanisms which take account of an individual’s right to dictate the terms of his care consistent with his personal projects, and to access resources which help him to negotiate any sufferings which he must endure greatest degree possible. They should also argue for the rights of voluntary carers to regular assistance, support, ‘relief’ or ‘temporary exit’ from the burdens of long-term care for another, where those burdens induce physical and mental suffering (many even argue for a lower, more humane threshold). A state which pushes carers and those they care for to the brink through neglect and lack of support is a cruel state. But the impossibility of temporary withdrawal from the source of one’s suffering in the context described by the advocates of Miss X is what makes the X case different.

        Of course, if the bottom line is a prohibition against killing of any human entity then none of this matters. And you, Maria and I don’t agree about the role which that prohibition should play in Irish law. But I do think that if Maria’s argument is based on that prohibition, the only purpose of the analogies then is to import moral considerations extraneous to the argument actually being made. They call up images of the raped suicidal woman as unreasonable, dealing in dangerous emotions, and unable to shoulder her obvious social duties (Maria’s example of the man who has been sacked or dumped by his girlfriend is very troubling here).

        As I see it, those who refuse to legislate for suicide under X are asking certain women, in principle, to shoulder a profound and incomporable burden (or more accurately, to discharge that burden out of sight in another jurisdiction and to keep that suffering to themselves.)

    • Cillian Bracken

      The analogies may not be logically synonymous, but they are constitutionally.
      I believe that Dr. Cahill is trying to underline the somewhat oxymoronic state of the problem under equality, and that when the legislation is eventually enacted, this will bring the constitutional self-contradiction to the fore.

    • Maria Cahill

      Thanks Mairead, Benedicte, and Cillian for your comments.

      Of course I do not propose to give an answer to the question of whether the level of suffering caused by pregnancy is the same as the level of suffering caused by rape.

      The Constitution states that the unborn child in the womb has a right to life which is equal to that of the mother which means that it cannot be less than that of the rapist either. Hederman J’s analogy, which I’m just developing, is proposed and defended – as a matter of positive law – on that radical principle of equality of protection for life which the Constitution guarantees.

      • Just to clarify: I don’t think I was getting at a pregnancy/rape comparison at all. I was following your analogy about suffering caused by the devastating actions of others and working from there.

        • Maria Cahill

          Thanks Mairead. That’s where we disagree then; I think the starting-point should be the constitutional guarantee of equal right to life and we work from there.

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