In the famous McGee which found the prohibition on artificial contraception unconstitutional in the case of a married woman whose life would be endangered by pregnancy, the Supreme Court relied in part on the right to life. In the circumstances conception was likely to put the plaintiff’s life in jeopardy. The Supreme Court relied in part on the grounds that the law did not vindicate the plaintiff’s right to life.
The McGee case affirmed an implied right to life for the unborn child and this principle was later reiterated by the Supreme Court. Notwithstanding the finding that there was an implied right to life and notwithstanding those abortions remained firmly criminalised, a specific right to life for the unborn child was inserted in the Constitution following significant political pressure for a referendum.
These texts of the famous 8th Amendment of the right to life of the unborn child, provided
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 insofar as practicable by its law to defend and vindicate that right.
The interpretation of the amendment led to perhaps the most contentious series of cases in terms of public controversy in the history of the State. The courts in reliance on the 8th Amendment restrained a counselling service from assisting pregnant women to travel abroad, to obtain abortion by referral, from making travel arrangements or informing them of the identity and location and method of communications with UK abortion services, in cases taken by the Society for the Protection of the Unborn Child (SPUC). This was later found to be inconsistent in part with the European Convention of Human Rights.
The most dramatic case was the so-called X case in 1991 in which the High Court, on the application of the Attorney General, issued an injunction preventing a 14-year-old girl who became pregnant as a result of rape from travelling outside the State to obtain an abortion.
The High Court discussed the reconciliation of the right to life of the unborn and the right to life of the mother. The right to life of the unborn could be terminated only if there was an inevitable and immediate risk to the life of the mother for the avoidance of which a termination of pregnancy was necessary. There must, as a matter of probability, be a real and substantial risk to the life as opposed to the health of the mother which can only be avoided by termination of pregnancy.
The Supreme Court in the X case the court found the girl concerned to be at a substantial suicide risk on the basis of psychological evidence and that this could be avoided only by termination of pregnancy. The Supreme Court proceeded by a majority of four to one. The dissenting judge was of the opinion that the evidence not come close to being sufficient to justify an abortion.
The strength of the public feeling that followed from the High Court case was matched by that following from the Supreme Court case. Political pressure led to referends one in 1992 and one in 2002 seeking to strengthen the right to life of the unborn child in light of the Supreme Court’s interpretation, which was perceived by some to have frustrated the 8th Amendment.
In 1992, three referenda were held on the same day on the right to travel, the right to information and on restricting the “substantive” protection. The first two referenda were carried and specifically allowed for the provision of information on the right to travel so that no further injunctions of the type mentioned above have since issued.
The third referendum seeking to narrow the interpretation of a risk to life so as to exclude the risk of suicide was not passed. A similar proposal was rejected again by a further referendum in 2002.
In a subsequent court case similar to the X case, the Health Authority sought a care order permitting a child in care to travel for an abortion. The District Court granted the order and on review, it was upheld by the High Court which found that there was evidence of a risk of suicide justifying the abortion under the X case principles.
In a 2007 a girl in the care of the HSE became pregnant but the foetus which would not be viable outside the womb. The High Court decided that she was entitled to travel to the UK for an abortion and that it was not necessary to obtain court approval to travel. The HSE did not have power to stop her from travelling.
In 2006, the right to life was considered in the context of the use of frozen embryo. A husband and wife had agreed to the fertilisation of a number of embryos, the first of which was used for a successful pregnancy. The parties later separated and the wife wished to implant the remaining frozen embryos. The husband did not consent and the matter was contested in the High Court. The High Court considered that foetus outside the womb was not within the scope of the Article, because it related to termination of pregnancy. It held that the embryo outside the womb had no constitutional right to life.