Supreme Court rules unborn have no Constitutional rights outside Eighth Amendment

The Government can now proceed with trying to call a referendum on the 8th amendment

Supreme Court rules unborn have no Constitutional rights outside Eighth Amendment

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Updated: 15.30

The Cabinet will meet Thursday morning to approve a bill to hold a referendum on abortion.

It comes after the Supreme Court ruled that the unborn have no rights under the Constitution outside of the Eighth Amendment.

The decision from the seven judge court overturns a High Court ruling handed down last year. 

The unanimous ruling finds that the rights of the unborn in the Constitution are confined to the right to life alone.

It means the Government can proceed with trying to call a referendum on the 8th amendment.

This afternoon, the Taoiseach Leo Varadkar confirmed the Government will try to get a referendum bill into the Dáil tomorrow or Friday:

"It is important that we dot the i's and cross the t's," he said.

"We don't want to make any unforced errors when it comes to a referendum on changing our Constitution.

"The Attorney General has asked for the remainder of the day to consider the written judgement - I have agreed to that.

"Cabinet will meet tomorrow at 11am to hear his advice."

Following the judgement the Minister for Health, Simon Harris said the judgement has provided "great clarity" to legislators.

"I think regardless of your view on the issue of the Eighth  Amendment, it is very important when you put a referendum to the people that whatever way the people decide to vote that there is clarity in terms of the Constitutional and legal reality after that vote," he said.

"I think what the Supreme Court has done today is provide that clarity.

He said he does not believe the Constitution of Ireland is the appropriate place to "regulate access to healthcare for women."

"I don't believe doctors in this country should have to dust down Bunreacht na hÉireann to decide whether or not they can treat a women who may have diabetes and be at risk of going blind and losing her kidney function.

"The Constitution is not the place to deal with this issue - and that is why we are proposing a referendum."

Supreme Court

Chief Justice Frank Clarke gave the verdict from Limerick.

He said: "Neither the Common Law cases and statutory provisions, nor the pre and post 8th amendment cases relied on when analysed and understood, support the High Court's conclusions that the unborn possess inherent constitutionally protected rights other than those expressly provided for in Article 40.3.3".

"The most plausible view of the pre 8th amendment law was that there was uncertainty in relation to the constitutional position of the unborn which the 8th amendment was designed to remove.

"In addition the provisions of the two subparagraphs to Article 40.3.3 introduced by the 13th and 14th amendments support the court’s view that the present constitutional rights of the unborn is confined to the right to life guaranteed in Article 40.3.3 with due regard to the equal right to life of the mother."

The Supreme Court was tasked with considering a High Court ruling that could have had implications for the planned abortion referendum.

It related to an immigration case in which a Nigerian man tried to fight his deportation by saying his child was due to be born shortly, and that child would have the full rights of an Irish citizen.

In the Supreme Court appeal, it was argued the unborn child had rights - including the right to have both parents there when it was born.

The State refuted this, saying the only right the unborn has is the right to life which is contained in the 8th amendment.

Read the full judgment here

What this means

The Government can now proceed with trying to call a referendum on the 8th amendment.

The Cabinet needs to approve the referendum bill, which outlines what question people will be asked to vote on.

That then needs to be approved by the Dáil and Seanad before the date of the referendum will be known. 


Dublin Senator Catherine Noone, who chaired the Oireachtas Committee on the 8th Amendment, has welcomed the "clear and unanimous decision" by the Supreme Court regarding the rights of the unborn.

Senator Noone said: "Today the Supreme Court made a landmark decision, this judgement will allow us to move forward to a May referendum on the 8th amendment.

"It is my belief that the only rights afforded to the unborn under the current constitutional status, is the right to life provided for in the Eighth Amendment and this does not extend to other areas of the Constitution"

"I urge us all to accept the Court’s judgement in good faith and move forward in a civilised and respectful manner, as has been the case for the most part so far".

Justice Minister Charlie Flanagan said: "I welcome the clarity that this Supreme Court judgement provides regarding the status of the unborn within the Constitution.

"In relation to the implications for the status of potential deportees from the state with regard to their family status; this is a detailed and comprehensive judgement, and my department, along with others will analyse it fully."

Children's Minister Katherine Zappone said: "I welcome the clarity offered by today’s Supreme Court decision and look forward to continuing the process of putting the 8th amendment before the Irish people by way of referendum.

"I will continue to work with Government colleagues to ensure the referendum can proceed as quickly as possible."

While Labour representative on the Committee on the 8th Amendment, Jan O'Sullivan, said: "I welcome this very clear and unanimous ruling by the Supreme Court today.

"The decision paves the way for the Oireachtas to debate with clarity the wording of the proposed Government referendum, which is coming before the Dáil this week.

"I look forward to engaging in the debate with my Oireachtas colleagues, and would again call on the Government to ensure it keeps to its timetable of a May referendum on the Eighth Amendment so that the maximum number of people will be available to vote on the issue, many for the first time."

Three organisations leading a campaign to repeal the 8th amendment also welcomed the clarity.

Orla O’Connor, director of the National Women’s Council of Ireland, said: "The judgement paves the way for a referendum on the 8th amendment and will hopefully allow the Government to bring the referendum bill to the Dáil this week.

"From talking to people across the country we know that people are looking for controlled change of our laws on abortion".

Linda Kavanagh, spokesperson for the Abortion Rights Campaign, said: "The Supreme Court ruling today means that nothing now stands in the way of this referendum as promised by the Government."

And Ailbhe Smyth, convenor of the Coalition to Repeal the Eighth Amendment, added: "It is up to Government to officially set a date for the referendum on the 8th amendment and we look forward to having confirmation on that date in the very near future."