Legislating for Article 40.3.3: Cahill on Equality of Life

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.