#17461 - Constitutional Rights The Right To Life - Constitutional Rights

CONSTITUTIONAL RIGHTS 6A • • • • ARTICLE 40.3.2-3 - amendment to protect the life of the unorn Enumerated Personal rights to life Life guaranteed to every citizen - 40.3.2 The extra section is the unborn RIGHT TO LIFE • Enumerated • 'essential value of every legal order & central to…all other rights' < dissenting judgement • Basically, if you're not alive you cannot enjoy the rights granted to you • However, Not absolute. < Keane J in concurring judgement in (Grogan No.5) • Exceptions in the past: (death penalty, self-defence) < AG v X • Gardai given special provision to kill people - assembly for e.g People v Shaw & Evans Shaw and Evans arrested and suspected of abduction and murder. The gardai maintained the hope that they were alive. They detained him 'unlawfully' for 30 hours in hope to discover the whereabouts of the victim. Here, the SC decided that the right to liberty not violated - Right to life trumps personal liberty right Even if unlawful. Burke Suing for documentary that they alleged that defamation… sought discovery from the D to see who the source was to the reporter. The D was journalist and TV station. The D said that the fact that this could risk someone's life due to the fact the IRA were a dangerous organisation, the court felt that - Risk of death outweighs right to sue & to a good name Delaney Occupants taken out of apartment to rescue them against their will. They entered with force without warrant - constitution granted this as they are allowed if they are vindicating the right to life. SC - Safeguarding a life trumps inviolability of the dwelling. Mooney Case not always heard in public if right to life is another matter. RE Ward of Court Ward now middle aged woman. 20 years before, entered hospital and due to anaesthetic problem she was left in vegetative state - not able to communicate and not aware of surrounding - not classic complete vegetative state but almost there. Been in condition for 20 years. Her physical health deteriorating and quality of life descending. Still able to experience pain. Not able to eat or drink anymore. Family wanted to end artificial nutrition and hydration > give her lots of painkillers and allow her to die peacefully. HC agreed on appeal, then SC had to determine if this was the correct decision SC: Hamilton J - Every reasonable step should be taken to preserve life save in exceptional circumstances Strong presumption to preserve it CJ: agreed with family to - Let 'nature takes its course' Rather than artificially keeping her alive, allow her to die naturally. Withdrawal of medical treatment in order to allow her to die. Not as positively killing her per se. - 'Keeping alive by abnormal, artificial, non-curative means' Not making positive contribution to life. MADE VERY CLEAR - Not right to end or shorten life, except by 'natural process of dying' O'Flaherty J • Death = part of life • Artificially preserved life 'without purpose, meaning or dignity' • Again, stressed that this does not involve authorising euthanasia. (killing by positive act) Egan J dissentedShe still had some cognitive function One shouldn't try to measure life's value No strong and cogent justification to starve and kill a human being Didn't believe families distress was sufficient DENHAM J • Focused on language • Constitution > - 'respect defend and vindicate' - Most important right and must be ABSOLUTE RESPECT FOR ALL LIVES. • However, vindicate and defence 'as far as practicable' • (3.1) > - protect life 'as best it may from unjust attack' > authority for the non-absolute idea. • Could you argue that preservation isn't necessarily an unjust attack on their right? Suffering > unjust attack so maybe not What is respect? - Respect someone's death in order to respect their life • Trying to preserve it at all costs is too far > freeing the dying from suffering is respecting life and its end. Fleming v Ireland She wanted to die when enjoyment of life was up and make the most out of it. In an ideal world, the P would've liked suicide by her husband however, this was against the law. This meant that if she wanted to be certain that her life was ended, she'd have to do it herself. She suffered from a disease that deprived her of the opportunity to kill herself. She sought that s(2)2 was invalid as it was an unjust attack on her right to life. Claimed that right to life, includes as a corollary the right to choose to die with dignity. (right of freedom of expression, right to silence) SC rejected this. You have to interpret the right to life under our constitution and not under your own philosophy. The constitution clearly 'imposes a positive obligation on the State to protect life' > corollary right doesn't come hand in hand w/ this. It implies a citizen - 'living as a vital human component in the social, political and moral order'. Court went out of its way to say that - Oireachtas can decriminalise assisted suicide to some extent Governor of X Prison v P McD Prisoner on 7-week hunger strike. Governor sought court order allowing force feeding. The court found - the - prisoner was capable of making this decision and so was entitled to refuse food and medical care even though it was lifesaving This comes under the right to refuse medical treatment despite the fact it could be viewed as 'objectively irrational' or could have adverse effects. Medical practitioner's advice or thoughts = irrelevant. RIGHT TO LIFE OF THE UNBORN • Largely from how the const. developed, this evolved. • • • • In Griswold, 1965 in America s aid married couple have right to use contraception Roe 1973 - abortion right also in the first 3 months. McGee Ireland > 1973 > said couples also had contraceptive right> evolution - If you grant right to bodily integrity > refusing abortion is violating this? - Privacy of pregnant women protected, too. - Bodily integrity is the inviolability of the physical body and emphasizes the importance of personal autonomy and the self-determination of human beings over their own bodies - Unborn > unenumerated right to life already > said in McGee, G, Norris but were obiter dicta 1861 offence against the person act > now repealed - Offence of attempt to carry out a miscarriage when unlawfully administering something to help. - If you weren't pregnant and you did this, you wouldn't be committing offence - Unless person giving the pills thought you were - Max. penalty of life imprisonment Pro-life Amendment campaign • Aim > to stop court creating abortion rights in following the US • But agreed that where a woman can die in birth, it may be terminated - specific irregularity that he described in lec. • Wanted an act criminalising abortion • Resulted in the Eight Amendment in 1983 (art.40.3.2.3) • ORIGINAL TEXT OF AMENDMENT - 'state acknowledges the right to life on unborn and with due regard to equal right to mother…respect as far as practicable by its laws to defend and vindicate this life' < clearly intended to fit in with the right of life. ➢ Unborn not defined ➢ Pro-life suggested a draft saying unborn = fertilisation < parliament refused ➢ The oireachtas included, 'with due regard to the equal right to life of the mother' < this was not proposed either ➢ What is due regard? ➢ Not absolute > as far as practicable < practicability in Irish text is stronger ABORTION AND INFORMATION • SPUC looking for injunctions • Unborn obviously can't defend. • Spuc can make case where unborn can't. Court: - Life unborn trumped right to information assisting abortion