by Bruce Arnold | Front Page
We respect the Supreme Court as the highest institution in the State, a forum in which “justice shall be administered” to all, without fear or favour. The Court has the duty, in final appeal, “to respect, and, as far as practicable, by its laws to defend and vindicate” the fundamental rights of those in its charge, especially the most vulnerable. I regret to say that it has failed lamentably in the discharge of this weighty responsibility, in its recent decision on immigration and unborn rights (known as the M case).
The basic right to life
It is an undeniable medical fact that an unborn child is capable of independently enjoying the most primitive form of the natural right to life, that is, the right not to have her tiny human life wilfully taken away or ended by another. In this respect it is a fundamental right, inalienable and imprescriptible, neither given by, nor taken away by, the Supreme Court. Yet that is precisely what they have done in respect of the unborn child. They have taken away all its rights up to, and including, the moment when the umbilical cord is cut. It is my view that every living human being, in fact, can be said to enjoy this negative right simultaneously and without conflict, because it simply requires that everyone else refrains from deciding to take away her life. The unborn child, as a human being, enjoys that restraining right independently of her mother. If we are willing to deny that minimal basic right to any living human being who is capable of enjoying it, we have no claim on the right for ourselves.
Does an unborn child have any other rights? The Supreme Court held that it does not, that birth is the “gateway” to all its other constitutional rights. This appears to misconstrue the meaning of a natural right. The capacity to exercise a natural right is not decisive. Some natural rights may always be enjoyed (e.g. the right not to be tortured), even when other rights cannot be exercised, for want of capacity. A child born prematurely and placed in an incubator is for a time every bit as dependent and incapable of exercising human rights as a baby in the womb. By what mad logic can it be lawful to kill one and not the other? If the capacity to exercise a right were the proper legal criterion, many adults would also lose their natural rights —and become non-persons— at various points of their lives. It is the capacity to enjoy a right that must be conclusive.
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