WHAT HUMAN RIGHTS should be protected in our constitution? Is a right to life not the primary human right, in the sense that without it other human rights could not be exercised? Who is human? If a baby before it is born is human, ought it not have human rights?
These are the issues at the heart of the referendum on the 8th Amendment.
Fundamental values
In 1982, Garret FitzGerald, Leader of Fine Gael, told the party’s Ard Fheis: “All life, whether of citizens or of people of other nationalities, whether born or unborn, should be protected by our Constitution”.
This carefully worded statement was one of fundamental values, going to the heart of Garret FitzGerald’s, and Fine Gael’s, political tradition. It also was a statement of the philosophical beliefs of a majority of the Irish people about the value and dignity of each individual, before and after birth.
As one of his successors, I was often asked what Fine Gael stood for, and my answer was that the party stood for three things, for a society in which “every person counts”, for exclusively constitutional politics, and for European unity. I added that “every person” included babies before birth.
These three principles were consistent with, and flowed from, one another. Protection of human life necessitated the avoidance of violent conflict in Europe, and also lay behind the party’s commitment to constitutionalism in Irish politics. Respect for human life, born and unborn, foreign or native, was at the heart of our entire approach to politics.
The primary human right
The idea that a constitution should protect human rights is in fact fundamental to our western civilisation. Without a right to life, one cannot exercise any other constitutional rights. The right to life is thus the primary human right.
For example, the Irish Constitution also explicitly recognises a right to freedom of expression, to one’s good name, to property and to elementary education. But none of those constitutional rights can be exercised, if one had not first had the right to be born.
The Irish courts have gone further and have decided that the Constitution creates other rights, not explicitly mentioned in the Constitution, so called “unenumerated rights”. These unenumerated constitutional rights include a right to marry, a right to procreate and a right to bodily integrity. Again, it would be impossible exercise any of those rights, if one had not first had a right to be born.
It was also in that pro life spirit, that the Irish people also decided that the Irish Constitution should ban the death penalty, even for heinous crimes. Our strong public, and private, support for life saving aid to third world countries is also derived from the same pro life convictions among the Irish people. An avoidable death of a baby in Africa is a pro life challenge too.
The 8th Amendment
Indeed, at the time the 8th Amendment was introduced, there were many who argued that it was not needed, because a child before birth would be deemed by the Irish courts to enjoy a right to life anyway, an unenumerated right so to speak, because without it, it would not be able have to exercise the other rights to which it would be constitutionally entitled.
Unfortunately that is not the way things have turned out. The Supreme Court has decided recently that a child in the womb has no rights at all, except the basic right to life contained explicitly in the 8th Amendment. Now even that will be taken away if a majority vote Yes on 25 May.
Abortion ends a life. Once it has happened there is no going back, no recovery. It is final.
Yes, there are tragic pregnancies, and difficult consequences flow from them. But at least there is some possibility to remedy, or alleviate, some of those consequences. But no remedy is open to the unborn child whose life is ended. It is over before it has properly begun.
A matter of public policy
The taking of the life of another, without its consent, can never be a private matter, for a woman or for a man. It is inherently a matter of public policy. Indeed, if human rights are to mean anything, any denial of the human rights of another person is necessarily and always a matter of public policy.
I have to say I have a real difficulty understanding the concept of human rights espoused by the proponents of abortion legislation.
It seems that some of them believe a baby, before birth, is not really human at all. Thus it would not have human rights, including a right to life. The idea here seems to be that, because an unborn baby is totally dependent on its mother, it is therefore not yet human, and has no human rights.
But dependency is part of life, and not a sound ground for denying the humanity of anyone. Babies after birth, and older people at the end of their lives, are deeply dependent too. They could not survive on their own.
An obligation to protect
But, to date, no one is suggesting they should not have human rights. If a two-day-old baby is human, and has a right to life, why not little girls and boys three months before they are born? What is the ethical and scientific basis for saying one has human rights, and the other does not?
Some suggest that the decision of whether an unborn baby should be allowed to live or die should be left exclusively to the sole discretion its mother. This would be to deny any individual human right to the child. No, the nature of all human rights are that the State also an obligation to protect them. They are not just left on trust to anyone, man or woman.
For example, a child’s constitutional right to elementary education is not simply left to the discretion of its parents. The State has always had a right to step in to ensure the child is educated. In fact the State’s constitutional ability to vindicate the rights of the child was increased by the recent Children’s Referendum.
Surely if the State is to have a obligation to step in to protect a one-month-old baby, it also has an obligation, four months earlier, to protect its right to be born, in the first place.
We shouldn’t abandon a human’s right to life
The circumstance in which a child was conceived should not decide whether it has a right to live or not.
Nor should we abandon a human right to life, just to bring our laws into line with those of our neighbours. We won our independence so we could make our own laws for ourselves, particularly on a matter of life and death, as this is.
I was very disappointed that the Oireachtas Committee was not asked to explore these fundamental questions of what it is to be human, who is human, and who should have human rights, before making its radical recommendations. Without such a discussion, the referendum is simply premature.
As a society we must agree amongst ourselves on the basis and scope of human rights in Ireland, before making a decision to withdraw the most fundamental of all human rights from a section of our people. We have not done that.
That is why I urge people to vote “No” on 25 May.
John Bruton is a former Taoiseach.
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