An affidavit submitted today to the Supreme Court in the RvR embryo case has questioned the argument of the Attorney General in relation to voters’ intentions when passing the 1983 pro-life amendment. Pro-life advocate Mrs Esme Caulfield said that the Attorney General, who told the court on February 4th that the embryo outside the womb had no legal protection because that was not the intention of the voters in 1983, had utterly misrepresented and incorrectly presented her intentions as a Yes voter to the court.

Mrs Caulfield said that “the argument made by the Attorney General incorrectly interpreted and completely misrepresented my intention as a voter when I voted Yes to the 8th Amendment in 1983. The wording of that Amendment was as follows: ‘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, as far as practicable, by its laws to defend and vindicate that right. The amendment wording made no reference to a class or section of the unborn, such as embryos un-implanted in the womb, nor did it refer only to abortion. It simply acknowledged the right to life of the unborn. My intention in voting was to protect human life, and I strongly object to having my intention wholly and deliberately misrepresented by the Attorney General.”

Donal O’Donnell SC, for the Attorney General, had previously argued that an embryo is not an “unborn” within the meaning of Article 40.3.3, and, because of this and the absence of any regulation of fertility treatment, the embryo has no status under Irish law. He then added that “It is open to the people to make a decision they wish to protect embryos but that issue was not decided in 1983, when the anti-abortion amendment was passed, and it remains to be decided”. Counsel further argued that there was nothing in Irish law to stop embryos being produced for commercial reasons and also agreed the destruction of fertilised embryos prior to implantation in a woman’s womb is permitted under law.

Mrs Caulfield further argued: “I did not vote Yes in order to exclude children conceived outside of the womb – in fact, because of the birth of Louise Brown, the world’s first IVF baby in 1978 - the safety of unborn children conceived ex-utero was in my mind and in the public arena. The only limit on the category of humans specified in the eighth amendment was in respect of birth - and I submit that this amendment cannot logically be used as a limitation on those whose lives are constitutionally protected before birth.

Furthermore I submit that the Attorney General cannot possibly know the mind and the intention of the electorate voting in 1983as he so claimed on February 4th last. It is a physical and legal impossibility.”

The long-time pro-life activist pointed out that the precedent given in the 1996 Hanafin case should preclude the Attorney General or others from claiming to know the minds of the voters.

Mrs Caulfield was told that her affidavit would be taken into consideration by the Supreme Court. Her affidavit is given in full below.

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THE HIGH COURT

In the matter of Esme Caulfield and the Attorney General and Ireland

Affidavit of Esme Caulfield

I Esme Caulfield, aged 18 years and upwards and a citizen of Ireland, make oath and say as follows:

I make this affidavit from facts within my own knowledge save where otherwise appears and wherever it so appears I believe the same to be true.

I wish to seek this court’s assistance in seeking amicus curiae status in the case of R vs R, in order to submit a correction of legal argument made in relation to my intention when voting Yes to the 8th Amendment to the Constitution in 1983.

I have not previously been party to this case but, because of the arguments made by Counsel Dónal Ó Donnell on behalf of the Attorney General in the Supreme Court on Wednesday February 4th 2009, my intention to protect the unborn when approving Article 40.3.3 of Bunreacht na hÉireann in 1983 has been utterly misrepresented and incorrectly presented before that court.

Dónal O’Donnell SC, for the Attorney General, argued that an embryo is not an “unborn” within the meaning of Article 40.3.3, and, because of this and the absence of any regulation of fertility treatment, the embryo has no status under Irish law. He then added that “It is open to the people to make a decision they wish to protect embryos but that issue was not decided in 1983, when the anti-abortion amendment was passed, and it remains to be decided”.

Counsel further argued that there was nothing in Irish law to stop embryos being produced for commercial reasons and also agreed the destruction of fertilised embryos prior to implantation in a woman’s womb is permitted under law.

I submit that the argument made by the Attorney General incorrectly interpreted and completely misrepresented my intention as a voter when I voted Yes to the 8th Amendment in 1983. The wording of that Amendment was as follows:

“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, as far as practicable, by its laws to defend and vindicate that right.”

The amendment wording made no reference to a class or section of the unborn, such as embryos un-implanted in the womb, nor did it refer only to abortion. It simply acknowledged the right to life of the unborn. My intention in voting was to protect human life, and I strongly object to having my intention wholly and deliberately misrepresented by the Attorney General.

I did not vote Yes in order to exclude children conceived outside of the womb – in fact, because of the birth of Louise Brown, the world’s first IVF baby in 1978 - the safety of unborn children conceived ex-utero was in my mind and in the public arena.

The only limit on the category of humans specified in the eighth amendment was in respect of birth - and I submit that this amendment cannot logically be used as a limitation on those whose lives are constitutionally protected before birth.

Furthermore I submit that the Attorney General cannot possibly know the mind and the intention of the electorate voting in 1983as he so claimed on February 4th last. It is a physical and legal impossibility.

In the 1996 Hanafin judgment, Hamilton J wrote:
“Because of the secrecy of the ballot, it is not possible to ascertain, by direct evidence, the factors which influenced the people in casting their votes, what their motives were in casting their votes or the reasons why they cast their votes in a particular way.”

Hamilton J was ruling on whether Hanafin could argue that government spending on the Yes campaign in the 1995 divorce referendum influenced the voter.

So, in the first part of this sentence in his ruling he dealt with that:
“Because of the secrecy of the ballot, it is not possible to ascertain, by direct evidence, the factors which influenced the people in casting their votes,
But the next part of the sentence, serves as a precedent against the mind-reading tendencies of Attorney Generals and others:

“what their motives were in casting their votes or the reasons why they cast their votes in a particular way.”
I submit that the Attorney General’s arguments are but a speculative guess and that, as a Yes voter to the 8th Amendment in 1983, my intention has been misrepresented by the Attorney General before the Supreme Court. I seek the assistance of this court in allowing me to remedy this before the Supreme Court in R v R.

I also wish to draw to the attention of the Supreme Court that the people, when asked in the proposed 25th Amendment to the Constitution in 2002 to restrict the legal protection of unborn human life to the embryo-child post implantation, rejected that proposal.

I ask this honourable court to allow me to present this matter to the Supreme Court in connection with the present hearing of the case R v R.

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Source: TruthTV


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