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You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> Society for the Protection of the Unborn Child v. Grogan [1997] IESC 4; [1989] IR 753 (6th March, 1997) URL: http://www.bailii.org/ie/cases/IESC/1997/4.html Cite as: [1989] IR 753, [1997] IESC 4 |
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1. This
is an appeal brought by the Defendants in these proceedings (hereinafter
referred to as the Appellants) against the judgment of the High Court (Morris
J) delivered on the 7 August 1992 and the order made in pursuance thereof. By
the said order the Defendants (Appellants) their servants or agents or anyone
having knowledge of the said order were to be permanently restrained from
printing, publishing or distributing or assisting in the printing, publishing
or distribution of any publication produced under their aegis providing
information to persons (including pregnant women) of the identity and location
of, and the methods of communication with a specified clinic or clinics where
abortions are performed.
This
order was sought by the Plaintiff company (hereinafter referred to as the
Respondent) in proceedings instituted by it by way of plenary summons issued on
the 25 September 1989.
As
appears from the Statement of Claim delivered on behalf of the Respondents on
the 29 January 1990 the first to sixth named Defendants are sued in their
representative capacities as the officers of the Union of Students in Ireland,
an unincorporated association with its head office at 16 North Great Georges
Street in the City of Dublin; the seventh to tenth named Defendants are sued in
their representative capacities as the officers of the University College
Dublin Students Union, an unincorporated association with offices at the
temporary Union Centre, University College Dublin, Belfield and the eleventh to
fourteenth named Defendants are sued in their capacities as the officers of the
Trinity College Dublin Students Union, an unincorporated association with
offices at Trinity College in the City of Dublin. The fifteenth named Defendant
is a printer carrying on business from premises at 375 North Circular Road in
the City of Dublin and printed a welfare guide on behalf of the University
College Dublin Students Union for the years 1987-1988 and 1988-1989. This
latter Defendant has taken no part in these proceedings.
The
Appellants other than the 15th named Defendant are persons who are members of
three separate groups, namely, the Union of Students of Ireland, the Students'
Union of University College Dublin, and the Students' Union of Trinity College
Dublin.
By
Notice of Motion dated the 25 September 1989 and made returnable for the 9
October 1989, the Plaintiff sought an interlocutory injunction restraining the
Defendants from publishing, distributing or assisting in the printing,
publishing or distribution of any publication produced under their aegis
providing information to persons (including pregnant women) of the identity and
location of and the method of communication with a specified clinic or clinics
where abortions are performed.
Having
heard submissions on the application for the said interlocutory injunction the
learned High Court Judge (Carroll J) decided to refer certain questions to the
Court of Justice of the European Communities for a preliminary ruling in
accordance with Article 177 of the Treaty establishing the European Economic
Community and made no order on the application for the interlocutory injunction
other than referring the following questions to the Court of Justice:-
1.
Does the organised activity or process of carrying out an abortion or the
medical termination of pregnancy come within the definition of "services"
provided for in Article 60 of the Treaty establishing the European Economic
Community?
2.
In the absence of any measures providing for the approximation of the laws of
Member States concerning the organised activity or process of carrying out an
abortion or the medical termination of pregnancy, can a Member State prohibit
the distribution of specific information about the identity, location and means
of communication with a specified clinic or clinics in another Member State
where abortions are performed?
3.
Is there a right at Community law in a person in Member State "A" to distribute
specific information about the identity, location and means of communication
with a specified clinic or clinics in Member State "B" where abortions are
performed, where the provision of abortion is prohibited under both the
Constitution and criminal law of Member State "A" but is lawful under certain
conditions in Member State "B"?
Though
there was no express order refusing or adjourning the application for an
interlocutory injunction, the Respondent in these proceedings appealed to the
Supreme Court against the failure of the learned High Court Judge to grant the
said application for an interlocutory injunction.
By
its judgments delivered on the 19 December 1989 and the order made in pursuance
thereof, the Supreme Court allowed the appeal and made the order sought.
It
did, however, grant
"liberty
to any party to apply to the High Court before the said trial or determination
for a variation of the said order in the light of the preliminary ruling by the
Court of Justice of the European Communities on the questions referred to it by
the High Court under Article 177 of the Treaty".
By
its judgment delivered on the 4 October, 1991 the European Court ruled in
relation to Question No 1 that "medical termination of pregnancy, performed in
accordance with the law of the State to which it is carried out, constitutes a
service within the meaning of Article 60 of the Treaty".
Questions
2 and 3 of the Reference were considered together by the European Court and its
ruling was:-
"It
is not contrary to community law for a Member-State in which medical
termination of pregnancy is forbidden to prohibit students, associations from
distributing information about the identity and location of clinics in another
Member-State where voluntary termination of pregnancy is lawfully carried out
and the means of communicating with those clinics, where the clinics in
question have no involvement in the distribution of the said information."
The
ruling of the European Court of Justice is binding on the national court. (See
Murphy v Bord Telecom Eireann (1989) IRLM page 53 and Crotty v An Taoiseach
(1987) ILRM page 400).
The
Respondents' claim in these proceedings was heard by Morris J on the 17, 23 and
24 July 1992. The proceedings on the 17 July related to the evidence and on the
23 and 24 of July contained submissions by both parties.
In
the course of his judgment, delivered on the 7 August, 1992 the learned trial
judge stated:-
"I
accordingly accept that by virtue of this ruling [the ruling of the European
Court of Justice] a pregnant woman who is travelling to the United Kingdom for
the purposes of an abortion is travelling to avail of a service as defined by
the Treaty of Rome. However, a provision in this country which prohibited third
parties from furnishing her with information relating to these clinics is not
in conflict with the Treaty of Rome. It is well settled and has been found by
the Supreme Court both in Society for the Protection of Unborn Children of
Ireland Ltd v Open Door Counselling Ltd and Wellwoman Centre Ltd (1988) LR 593
and by the Supreme Court when hearing this case at the interlocutory stage
(Society for the Protection of Unborn Children of Ireland Ltd v Grogan &
Others, [1989] IR 753 that the distribution and provision of this information
is unconstitutional."
The
information to which he referred was the information contained in the
publications distributed by the Defendants.
In
the further course of his judgment, the learned trial judge stated that:-
"It
is submitted by Counsel for the Defendants that the Supreme Court in the
Attorney General v X and Others (1992) 1 IR 1 identifies a class of person and
a circumstance in which an abortion can be regarded as permissible. The test to
identify such a person is to be found in the following passage from the
judgment of Finlay CJ --
'I,
therefore, conclude that the proper test to be applied is that if it is
established as a matter of probability that there is a real and substantial
risk to the life, as distinct from the health, of the mother which can only be
avoided by the termination of her pregnancy, such termination is permissible
having regard to the true interpretation of Article 40.3.3 of the Constitution.'
It
is submitted by Counsel in these circumstances the communication of information
to such person would be justified and permissible so as to enable her to have
the abortion, and it is submitted that the Defendant's conduct is lawful as a
consequence.
I
identify a profound distinction between the distribution of the documentation
and information which the Defendants are engaged in in the circumstances of
this case, which involves the distribution of this information to the community
at large and to University students in particular, on the one hand and the
communication of such information to a clearly defined and extremely restricted
type of person identified in the test. No case has been made to me, nor could
it be made, that the conduct of the Defendants which it is sought to justify
relates only to persons coming within the class identified by applying that
test nor is it suggested that the Defendants wish to confine their activities
to the distribution of information to that class. Accordingly, this argument
fails on the grounds that it does not have any application in the circumstances
of this case."
It
is clear from the judgment of the learned trial judge that he considered that
he was bound by the rulings of the European Court of Justice and the decisions
of the Supreme Court in the two cases to which he referred and being so bound
he made the order which is the subject matter of the appeal by the Appellants
herein.
The
constitutional and legal position as to the provision of information with
regard to the Termination of Pregnancies has been altered by the provisions of
the Fourteenth Amendment to the Constitution and the provisions of the
Regulation of Information (Services outside the State for Termination of
Pregnancies) Act, 1995 (hereinafter referred to as the 1995 Act). However the
Appellants submit that the provisions of the said amendment to the Constitution
and the said Act have no relevance to the appeal herein; that the appeal must
be determined by this Court in accordance with the law prevailing at the time
of delivery of the judgment and of the making of the order appealed.
For
the reasons given by Mr Justice Blayney in the course of the judgment he is
about to deliver, which I have read and with which I agree, I am satisfied that
this submission is incorrect and that in considering whether the injunction
granted by the learned trial judge should be confirmed or not, the Court must
look at what the present state of the law is and not at what it was at the time
the proceedings commenced.
However,
it is necessary to deal with the state of the law prior to the passing of the
14th Amendment to the Constitution for the purpose of determining whether the
order of the High Court was correct at the time it was made.
Law
prior to the passing of the Fourteenth Amendment
The
law prevailing at the time of delivery of the said judgment was set forth in
detail by me when delivering the reasons of the Court in the Reference under
Article 26 of the Constitution in the matter of the Regulation of Information
(Services outside the State for Termination of Pregnancies) Bill, 1995
(hereinafter referred to as The Reference) at [1995] 2 IR 28, and [1995] 2 ILRM
81 appropriately summarised as follows:-
"The
right to life of the unborn was clearly recognised by the courts as one of the
unenumerated personal rights which the State guaranteed in its laws to respect,
and, as far as practicable, by its laws to defend and vindicate.
The
Eighth Amendment of the Constitution added to s 3 of Article 40 the following
sub-section:-
'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,'
thereby
acknowledging the right to life of the unborn."
In
The Attorney General (SPUC) v Open Door Counselling [1988] IR 593, the Supreme
Court considered the nature and extent of the right to life of the unborn, and
in particular, whether it was constitutionally permissible for the defendants
to provide information to pregnant women concerning the availability of
abortion services in foreign jurisdictions. This behaviour was held to be
unconstitutional. Finlay CJ stated at p 625:
"The
performing of an abortion on a pregnant woman terminates the unborn life which
she is carrying. Within the terms of Article 40, s 3, sub-s 3 it is a direct
destruction of the constitutionally guaranteed right to life of that unborn
child.
It
must follow from this that there could not be an implied and unenumerated
constitutional right to information about the availability of a service of
abortion outside the State which, if availed of, would have the direct
consequence of destroying the expressly guaranteed constitutional right to life
of the unborn."
The
other members of the Court agreed with this judgment.
The
decision in that case was further considered by this Court in SPUC v Grogan
[1989] IR 753. The Court rejected an attempt to distinguish its decision in
Open Door. Finlay CJ said at p 764:
"I
reject as unsound the contention that the activity involved in this case of
publishing in the students' manuals the name, address and telephone number when
telephoned from this State, of abortion clinics in the United Kingdom, and
distributing such manuals in Ireland, can be distinguished from the activity
condemned by this Court in The Attorney General (SPUC) v Open Door Counselling
Ltd [1988] IR 593 on the grounds that the facts of that case were that the
information was conveyed during periods of one to one non-directive
counselling. It is clearly the fact that such information is conveyed to
pregnant women, and not the method of communication which creates the
unconstitutional illegality, and the judgment of this Court in the Open Door
Counselling case is not open to any other interpretation."
The
provisions of the Eighth Amendment to the Constitution received further
attention by the Court in The Attorney General v X [1992] 1 IR 1. I quote from
my judgment in The Reference:
"The
events which gave rise to these latter proceedings were, in the words of
Costello J, painful and distressing: and there is no need to refer to them in
this judgment.
In
that case, the Court was obliged to consider the effect of that portion of the
Eighth Amendment which did not arise for 'interpretation or decision' in The
Attorney General (SPUC) v Open Door Counselling Ltd [1988] IR 593 and which
dealt with the equal right to life of the mother . . .
In
considering the terms of Article 40, s 3, sub-s 3 of the Constitution in this
context, the Court recognised that, in certain circumstances, there could be a
conflict between 'the right to life of the unborn' and 'the equal right to life
of the mother'; that where such conflict of rights could not be avoided, the
Constitution required that its provisions be interpreted harmoniously and that
the rights thereby guaranteed should be interpreted in concert in accordance
with the concepts of prudence, justice and charity. In the course of his
judgment, Finlay CJ stated at p 53 of the report:-
'Such
a harmonious interpretation of the Constitution carried out in accordance with
concepts of prudence, justice and charity, as they have been explained in the
judgment of Walsh J in McGee v The Attorney General [1974] IR 284, leads me to
the conclusion that in vindicating and defending as far as practicable the
right of the unborn to life but at the same time giving due regard to the right
of the mother to life, the Court must, amongst the matters to be so regarded,
concern itself with the position of the mother within a family group, with
persons on whom she is dependent, with, in other instances, persons who are
dependent upon her and her interaction with other citizens and members of
society in the areas in which her activities occur . . .
I,
therefore, conclude that the proper test to be applied is that if it is
established as a matter of probability that there is a real and substantial
risk to the life, as distinct from the health, of the mother, which can only be
avoided by the termination of her pregnancy, such termination is permissible,
having regard to the true interpretation of Article 40, s 3, sub-s 3 of the
Constitution.'
In
such a case, does a constitutional right arise or exist to obtain information
the purpose of which is to vindicate the right to life of the mother though
with the inevitable consequence of, and at the expense of, terminating the
right to life of the unborn child?
Once
the termination of the pregnancy is permissible, the mother has the right to
all relevant information necessary to enable her to have the pregnancy
terminated and this includes the information which was the subject matter of
the orders in The Attorney General (SPUC) v Open Door Counselling Ltd [1988] IR
593 viz information with regard to the identity and location of and method of
communication with a specified clinic or specified clinics . . .
In
such circumstances, the mother would have the right to travel outside the
jurisdiction to avail of such services to secure a termination of the pregnancy.
It
would appear, however, that irrespective of the mother's constitutional right
to travel, the exercise of that right would have to be subordinated to the
constitutional right to life of the unborn in circumstances where the pregnancy
constituted no threat to the life of the mother . . .
While
these observations were made in respect of the right to travel, they can, with
equal validity, be applied to the right to information.
If
the purpose of the travel or the securing of information is to procure an
unlawful abortion, then it would be unlawful having regard to the provisions of
Article 40, s 3, sub-s 3 of the Constitution, but if the purpose was the
procurement of a permitted or lawful abortion ie one that complies with the
test laid down in The Attorney General v X [1992] 1 IR 1, then neither the
travel nor the giving or obtaining of information with regard thereto would be
lawful.
That
would appear to be the position with regard to the provision of information
with regard to the services provided outside the State for the termination of
pregnancies prior to the enactment of the Fourteenth Amendment to the
Constitution."
Counsel
on behalf of the Appellants has submitted that the case of The Attorney General
v Open Door Counselling Ltd and Anor (hereinafter referred to as the Open Door
Counselling case) upon which such reliance was placed by the learned trial
judge was wrongly decided and should be departed from by this Court.
In
this connection it is relevant to refer to a portion of the judgment of Henchy
J in Mogul of Ireland Ltd v Tipperary (North Riding) County Council (1976) IR
260 where he stated at 272-273 of the Report:-
"A
decision of the full Supreme Court (be it the pre-1961 or the post-1961 Court),
given in a fully-argued case and on a consideration of all the relevant
materials, should not normally be overruled merely because a later Court
inclines to a different conclusion. Of course, if possible, error should not be
reinforced by repetition or affirmation, and the desirability of achieving
certainty, stability, and predictability should yield to the demands of
justice. However, a balance has to be struck between rigidity and vacillation,
and to achieve that balance the later Court must, at the least, be clearly of
opinion that the earlier decision was erroneous. In Attorney General v Ryan's
Car Hire Ltd the judgment of the Court gave examples of what it called
exceptional cases, the decisions in which might be overruled if a later Court
thought them to be clearly wrong. While it was made clear that the examples
given were not intended to close the category of exceptional cases, it is
implicit from the use in that judgment of expressions such as 'convinced' and
'for compelling reasons' and 'clearly of opinion that the earlier decision was
erroneous' that the mere fact that a later Court, particularly a majority of
the members of a later Court, might prefer a different conclusion is not in
itself sufficient to justify overruling the earlier decision. Even if the later
Court is clearly of opinion that the earlier decision was wrong, it may decide
in the interests of justice not to overrule it if it has become inveterate and
if, in a widespread or fundamental way, people have acted on the basis of its
correctness to such an extent that greater harm would result from overruling it
than from allowing it to stand. In such cases the maxim communis error facit
jus applies . . ."
However
the first question for determination in this Appeal is whether the Open Door
Counselling case was clearly wrongly decided by the Supreme Court, as it is
only in such circumstances that it would be open to this Court to overrule it.
In
considering this question, it is important to emphasise that the function of
the Court in the Open Door Counselling case must have been and was confined to
the issues and the parties before them.
As
stated by Finlay CJ at page 624 of the Report --
"The
function of the Courts, which is not dependent on the existence of legislation,
when their jurisdiction to defend and vindicate a constitutionally guaranteed
right has been invoked, must be confined to the issues and to the parties
before them.
If
the Oireachtas enacts legislation to defend and vindicate a constitutionally
guaranteed right it may well do so in wider terms than are necessary for the
resolution of any individual case. The Courts cannot take that wide approach.
They are confined to dealing with the parties and issues before them."
The
constitutional provision in issue in the Open Door Counselling case was the
Eighth Amendment of the Constitution which added to s 3 of Article 40 of the
Constitution the following sub-section:-
"3.
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."
As
stated by Finlay CJ at page 621:-
"It
was not part of the facts of this case nor of the submissions of the Appellants
that the service which they were providing for pregnant women in relation to
the obtaining of abortion outside this jurisdiction was in any way confined to,
or especially directed towards, the due regard to the equal right to life of
the mother mentioned in the sub-section of the Constitution which I have
already quoted, and this portion of that sub-section did not therefore arise
for interpretation or decision in this case."
Finlay
CJ identified the essential issue in that case where he stated at page 624 of
the Report that:-
"I
am satisfied, however, that the essential issues in this case do not in any way
depend upon the Plaintiff establishing that the Defendants were advising or
encouraging the procuring of abortions. The essential issue in this case,
having regard to the nature of the guarantees contained in Article 40, s 3,
sub-s 3 of the Constitution is the issue as to whether the Defendants admitted
activities were assisting pregnant women within the jurisdiction to travel
outside the jurisdiction in order to have an abortion. To put the matter in
another way, the issue and the question of fact to be determined is; were they
thus assisting in the destruction of the life of the unborn?"
Having
posed the question, he answered it in the following passage:
"I
am satisfied beyond doubt that having regard to the admitted facts the
Defendants were assisting in the ultimate destruction of the life of the unborn
by abortion in that they were helping the pregnant woman who had decided upon
that option to get in touch with a clinic in Great Britain which would provide
the service of abortion. It seems to me an inescapable conclusion that if a
woman was anxious to obtain an abortion and if she was able by availing of the
counselling services of one or other of the Defendants to obtain the precise
location, address and telephone number of, and method of communication with, a
clinic in Great Britain which provided that service, put in plain language,
that was knowingly helping her to attain her objective. I am, therefore,
satisfied that the finding made by the learned trial judge that the Defendants
were assisting pregnant women to travel abroad to obtain further advice on
abortion and to secure an abortion is well supported on the evidence."
At
page 625 of the Report, Finlay CJ stated:-
"The
performing of an abortion on a pregnant woman terminates the unborn life which
she is carrying. Within the terms of Article 40, s 3, sub-s 3 it is a direct
destruction of the constitutionally guaranteed right to life of that unborn
child.
It
must follow from this that there could not be an implied and unenumerated
constitutional right to information about the availability of, a service of
abortion outside the State which, if availed of would have the direct
consequence of destroying the expressly guaranteed constitutional right to life
of the unborn. As part of the submission on this issue it was further suggested
that the right to receive and give information which, it was alleged, existed
and was material to this case was, though not expressly granted, impliedly
referred to or involved in the right of citizens to express freely their
convictions and opinions provided by Article 40, s 6, sub-s 1 of the
Constitution, since it was claimed, the right to express freely convictions and
opinions may, under some circumstances, involve as an ancillary right, the
right to obtain information. I am satisfied that no right could
constitutionally arise to obtain information the purpose of the obtaining of
which was to defeat the constitutional right to life of the unborn child."
This
passage dealt with the constitutional right to life of the unborn child and did
not purport to deal with the equal right to life of the mother. Indeed it was
expressly stated, in the passage quoted herein, that the service being provided
was not in any way confined to, or specially directed towards the due regard to
the equal right to life of the mother mentioned in the sub-section of the
Constitution and did not arise for interpretation or decision in the case.
The
nature of the "equal right to life of the mother" did however arise for
interpretation and decision in the case of the Attorney General v X and Anor
(1992) 1 IR page 1 (hereinafter referred to as the X case).
The
X case established, that having regard to the true interpretation of the Eighth
Amendment, termination of the life of the unborn is permissible if it is
established as a matter of probability that there is a real and substantial
risk to the life, as distinct from the health, of the mother and that that risk
can only be avoided by the termination of her pregnancy.
In
the Reference under Article 26 of the Constitution in the Matter of Regulation
of Information (Services outside the State for Termination of Pregnancies)
Bill, 1995 this Court stated that:-
"If
the purpose . . . of the securing of information is to procure an unlawful
abortion, then it would be unlawful having regard to the provisions of Article
40 of the Constitution but if the purpose of the procurement of a permitted or
lawful abortion, ie one that complies with the test laid down in the X case,
then . . . the giving or obtaining of information with regard thereto would be
lawful."
As
already stated, this issue had not arisen for determination in the Open Door
Counselling case nor does it arise in this instant case save to the limited
extent outlined in the judgment of Morris J where he stated:-
"It
is submitted by Counsel for the Defendants that the Supreme Court in the case
of the Attorney General v X and Others (1992) 1 IR page 1 identifies a class of
person and a circumstance in which an abortion can be regarded as permissible".
and
"It
is submitted by Counsel in these circumstances the communication of information
to such person would be justified and permissible so as to enable her to have
the abortion, and it is submitted that the Defendant's conduct is lawful as a
consequence.
I
identify a profound distinction between the distribution of the documentation
and information which the Defendants are engaged in in the circumstances of
this case, which involves the distribution of this information to the community
at large and to University students in particular, on the one hand and the
communication of such information to a clearly defined and extremely restricted
type of person identified in the test. No case has been made to me, nor could
it be made, that the conduct of the Defendants which is sought to
justifyrelates only to persons coming within the class identified by applying
that test nor is it suggested that the Defendants wish to confine their
activities to the distribution of information to that task. Accordingly, this
argument fails on the grounds that it does not have any application in the
circumstances of this case."
Having
regard to the admitted activities of the Defendants in the Open Door
Counselling case and of the Appellants in these proceedings it is not open to
them to rely on the right of a woman to whom the test set forth in the X case
applies to obtain information with regard to the termination of her pregnancy,
as a justification of such activities.
In
neither case was the Court required or entitled to consider the right of a
woman to whom the test set forth in the X case applies to information with
regard to the termination of her pregnancy. No such person was a party to the
proceedings in the Open Door Counselling case or in this case.
The
Appellants, in their defence to these proceedings, have pleaded that:-
"10.
The Constitution of Ireland, and in particular Article 40.3.3 thereof, protects
the right to life of the mother which must encompass her having access to
information where her life may be threatened or endangered by the continuation
of the said pregnancy. The Defendants have a corresponding right to impart such
information relating to medical termination of pregnancy."
This
right vested in the mother was clearly acknowledged by this Court in The
Reference but the admitted activities of the Appellants in this case are not
confined to the provision of such information.
In
the course of his judgment on the application for an interlocutory injunction
in this case Finlay CJ stated at page 764 of the Report (1989 IR 753) that:-
"I
reject as unsound the contention that the activity involved in this case of
publishing in the students manuals the name, address and telephone number when
telephoned from this State, of abortion clinics in the United Kingdom and
distributing such manuals in Ireland, can be distinguished from the activity
condemned by this Court in the Open Door Counselling case on the grounds that
the fact of that case were that information was conveyed during periods of
one-to-one non directive counselling. It is clearly the fact that such
information is conveyed to pregnant women, and not the method of communication
which creates the unconstitutional illegality, and the judgment of this Court
in the Open Door Counselling case is not open to any other interpretation."
Counsel
on behalf of the Appellants submitted that the Open Door Counselling case was
wrongly decided because it was based upon a literal interpretation of the
Constitution rather than a harmonious interpretation thereof which would have
involved a consideration of the right to life of the unborn, the right to life
of the mother (Article 40, s 3, sub-s 3) and the right of the citizens to
express freely their convictions and opinions and a consideration of the issue
whether in the particular circumstances of the case it was necessary to
interfere with one constitutionally protected right in order to protect another.
Counsel
relied on the passage from the judgment of Henchy J in The People (DPP) v
O'Shea [1982] IR 384 where he stated at page 426 of the Report that:-
"I
agree that if the relevant sub-section of the Constitution is looked at in
isolation and is given a literal reading, it would lend itself to that
interpretation. But I do not agree that such an approach is a correct method of
constitutional interpretation. Any single constitutional right or power is but
a component in an ensemble of interconnected and interacting provisions which
must be brought into play as part of a larger composition, and which must be
given such an integrated interpretation as will fit it harmoniously into the
general constitutional order and modulation. It may be said of a Constitution,
more than of any other legal instrument that 'the letter killeth but the spirit
giveth life'. No single constitutional provision (particularly one designed to
safeguard personal liberty or social order) may be isolated and construed with
undeviating literalness."
In
the Open Door Counselling case the question whether a right to receive and give
information which, it was alleged, existed and was material to the case was,
though not expressly granted, impliedly referred to or involved in the right of
citizens to express freely their convictions and opinions provided by Article
40.6.1 of the Constitution, since it was claimed, the right to express freely
convictions and opinions may, under some circumstances, involve as an ancillary
right the right to obtain information.
This
question was considered by the Court but it was held that
(1)
the performing of an abortion on a pregnant woman terminated the life she was
carrying;
(2)
that such termination was a direct destruction of the constitutionally
guaranteed right to life of that unborn child within the terms of Article
40.3.3 of the Constitution, and that
(3)
there could not be an implied and unenumerated constitutional right to
information about the availability of a service of abortion outside the State
which if availed of, would have the direct consequence of destroying the
expressly guaranteed right to life of the unborn, and
(4)
no right could constitutionally arise to obtain information the purpose of
which was to defeat the constitutional right to life of the unborn.
Having
regard to the parties who were before the Court and the issues raised by them I
am satisfied that this case was rightly decided.
I
would again refer to and emphasise the statement of Finlay CJ where he stated:-
"It
was not part of the facts of this case nor of the submissions of the Defendants
made in this case that the service which they were providing for pregnant women
in relation to abortion outside this jurisdiction was in any way confined to,
or specially directed towards the due regard to the equal right to life of the
mother mentioned in the sub-section of the Constitution which I have already
quoted and this portion of that sub-section did not therefore arise for
interpretation or decision in this case."
Similarly,
it is clear from the evidence in this case and indeed the terms of the defence
delivered on behalf of the Defendants herein that the service that they were
providing for pregnant women in relation to abortion outside this jurisdiction
was not in any way confined to or specially directed towards pregnant women who
comply with the test set forth in the X case.
Paragraph
5 of the Defence provides that:-
"The
Trinity College Dublin Students Union has published the Trinity College Dublin
Guide Book and Diary 89/90 for distribution to students. The said guide book
and diary includes a welfare section which provides information for students
concerning pregnancy, with information as to the options available to women
students who become pregnant, including keeping the baby, adoption, foster care
and abortion. The said guide book and diary provides information as to the
availability of abortion as a lawful service in the United Kingdom and related
information. The said guide book and diary does not advocate or promote
abortion."
Paragraph
6 provides that:-
"The
University College Dublin Students Union has published a University College,
Dublin Welfare Guide 89/90 for distribution to students. The said welfare guide
includes a section on pregnancy information which provides information of a
similar kind to set out at paragraph 5 of this Defence."
Paragraph
7 provides that:-
"The
Union of Students in Ireland has published a monthly publication entitled 'USI
News'. The said publication has provided information for students concerning
the availability of abortion as a lawful service in the United Kingdom and as
to the means of contacting certain abortion services where medical termination
of pregnancy is lawfully carried out in the United Kingdom."
The
activities involved in this case consisted of publishing in the students
manuals referred to the name, address and telephone number when telephoned from
this State, of abortion clinics in the United Kingdom and distributing such
manuals in Ireland.
The
fact that such information is conveyed to pregnant women is unconstitutional
and illegal; the manner of such communication or the motives underlying such
communication is irrelevant to the unconstitutional illegality of the act of
communication. Consequently, the evidence of Dr Randals and Dr O'Carroll given
in this case is irrelevant to the fundamental issues raised in this case.
The
giving of the information in these manuals is not confined to pregnant women,
in respect of whom it is established as a matter of probability that there is a
real and substantial risk to her life, as distinct from her health but is
available to all students of the respective universities.
The
fact that the information may be given to a pregnant woman who complies with
the test in the X case does not render lawful the activities of the Appellants
because their avowed intention is to distribute such information generally.
It
was also submitted in the written submissions furnished on behalf of the
Appellants, although not seriously pressed on the hearing of the appeal, that,
since the European Court of Justice had ruled that the medical termination of
pregnancy, performed in accordance with the law of the State in which it was
carried out, constituted a "service" within the meaning of Article 60 of the
Treaty of Rome in respect of which pregnant women were entitled to obtain
information, provided that there was an economic link between the clinics, it
could not be unconstitutional for the defendants to give information to people
who had, as a matter of European Union law, the right to receive such
information. It was said that this would create an absurd situation without
legal precedent from any of the Member States of the Union.
The
ruling of the European Court of Justice, by which the High Court and this court
were both bound, made it clear that such a right to receive information in
European Union law had no application where the clinics in question had no
involvement in the distribution of the said information. That was unarguably
the position in this case. Since, for the reasons already given in this
judgment, the rights of the Defendants under the Irish Constitution were not
infringed by the relief granted in the High Court and were, as conceded in
effect by the Defendants, not in violation of European Union law, it follows
that this argument is without foundation.
I
am satisfied that the activities of the Appellants in this case were unlawful
at the time of the making of the Order under appeal.
It
is further submitted on behalf of the Appellants that the granting of an
injunction restraining their activities offends the principal of
proportionality because it is neither necessary nor effective to restrain the
availability of such information which is available generally in many
publications containing information from abortion clinics which have a
commercial interest in the availability of such information, which the
Appellants do not have.
On
this issue, I agree with the statement of McCarthy J in the course of his
judgment on the interlocutory application in this case where he stated that:-
"In
the light of the availability of such information from a variety of sources
such as imported magazines etc. I am far from satisfied that the granting of an
injunction to restrain these Defendants from publishing the material impugned
will save the life of a single unborn child, but I am more than satisfied that
if the courts fail to enforce, and enforce forthwith, that guarantee as
construed in the Open Door Counselling case, then the rule of law will be set
at nought."
Consequently,
I am satisfied that the judgment and the order of the High Court was correct
when delivered and made viz 7 August, 1992.
Subsequent
to the said judgment and order, the 14th Amendment of the Constitution provided
that the following paragraph be added to Article 40.3.3:-
"This
sub-section shall not limit freedom to obtain or make available, in the State,
subject to such conditions as may be laid down by law information relating to
services lawfully available in another State."
The
conditions referred to therein are set forth in the 1995 Act. I agree with the
statement contained in the judgment about to be delivered by Mr Justice Blayney
where he states that:
"If
the Appellants are complying with these conditions, they are protected by the
provisions of the Fourteenth Amendment. If they are not complying with them,
they are committing criminal offences and the only party who has the right to
obtain an injunction against them is the Attorney General."
Consequently,
I am satisfied that though the injunction granted by Order dated the 7 August
1992 was lawfully granted at the time it cannot now be confirmed by this Court
which must have regard to the law as it is now and not what it was at the date
of the Order.
BARRINGTON
J: The facts and the background to this case are sufficiently stated in the
other Judgments. I do not propose to restate them here. I agree with the Chief
Justice that the case of the Society for the Protection of Unborn Children of
Ireland Ltd v Open Door Counselling Ltd and Well Woman Centre Ltd (1988) IR
page 593 was rightly decided on the facts and the issues before the Court at
that time. The issue in that case was between the right to life of the unborn,
on the one hand and the right of freedom of expression of the Defendants on the
other hand. As between these two rights it appears to me that the Court was
correct to prefer the right to life of the unborn even if this meant
restricting the freedom of expression of the Defendants. No issue arose in that
case as to the right to life of the mother. Indeed it is doubtful if the
Defendants would have had locus standi to set up the right to life of the
mother had it occurred to them to do so (See Cahill v Sutton [1980] IR 269).
It
is true, however, as Mrs Justice Denham says in her Judgment, that there is
nothing like a hard concrete case for illustrating the implications and the
limitations of a principle of Constitutional Law and that we all have a better
understanding of the relevant constitutional provisions as a result of the
decision in Attorney General v X and Ors (1992) 1 IR 1. But to my mind this
rather raises the problem of whether it is wise to limit debates in
Constitutional Law cases in the manner contemplated in Cahill v Sutton.
The
learned trial Judge, in the present case, felt obliged to follow the decision
of this Court in the Society for the Protection of Unborn Children of Ireland
Ltd v Open Door Counselling Ltd and Well Woman Centre Ltd (1988) Irish Reports
page 593. It may be true that the Defendants in the present case like the
Defendants In the Open Door Counselling case are claiming a general right to
disseminate information. I doubt however if this Court, would now, after the X
case, grant an injunction in such wide terms conscious that such an injunction
might have the effect of denying to a mother in the position of the mother in
the X case the right to receive information to which she might otherwise be
entitled.
It
therefore appears to me that the injunction granted in the High Court must in
any event be modified. However I also agree with the Chief Justice and with Mr
Justice Blayney that the whole situation has now been changed by virtue of the
provisions of the 14th amendment to the Constitution and the Regulation of
Information (Services outside the State for Termination of pregnancies) Act
1995. If and insofar as the activities of the Defendants are covered by the
14th Amendment they are lawful and cannot be restrained. If and insofar as
their activities violate the provisions of the legislation they can be
prosecuted by the Director of Public Prosecutions or restrained by an
injunction obtained by the Attorney General.
I
would therefore discharge the injunction.
DENHAM
J: On 4 August, 1992 the High Court ordered, in these proceedings, that:
"the
Defendants their servants or agents or anyone having knowledge of this Order be
permanently restrained from printing, publishing or distributing or assisting
in the printing publishing or distribution of any Publication produced under
their aegis providing information to persons (including pregnant women) of the
identity and location of and the method of communication with a specified
clinic or clinics where abortions are performed."
The
Learned Trial Judge in making his order followed case law, being Society for
the Protection of Unborn Children Limited v Open Door Counselling Limited and
Well Woman Centre Limited [1988] IR 593 (hereinafter referred to as Open Door
Counselling 1988) and Society for the Protection of Unborn Children Ireland
Limited v Grogan and Others [1989] IR 753 which applied Open Door Counselling
1988. The Defendants/Appellants have appealed against the order and submit that
the said previous cases were decided in error and should be departed from by
this Court.
Stare
decisis.
The
Supreme Court may depart from a previous decision when there is a compelling
reason, where it appears to be clearly wrong: State (Quinn) v Ryan [1965] IR
70; Attorney General v Ryan's Car Hire Ltd [1965] IR 642. As Kingsmill Moore J
said at p 654 in the latter case:
"In
my opinion the rigid rule of stare decisis must in a Court of ultimate resort
give place to a more elastic formula. Where such a Court is clearly of opinion
that an earlier decision was erroneous it should be at liberty to refuse to
follow it, at all events in exceptional cases."
The
issue then is whether the decision in Open Door Counselling 1988 is erroneous.
Should
Open Door Counselling 1988 be followed?
The
Constitutional provision in issue in Open Door Counselling 1988 was the Eighth
Amendment of the Constitution which added to Article 40.3 of the Constitution
the following subsection:
"3.
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."
1.
To protect life of the mother.
In
Open Door Counselling 1988 the Defendants submitted that it was essential for
their service that they should be at liberty to inform women who wished to have
an abortion outside the jurisdiction of the court of the name, address,
telephone number and method of communication with a specified clinic which they
had examined and were satisfied was one which maintained a high standard. It
was ordered, at p 627:
".
. . that the defendants and each of them, their servants or agents be
perpetually restrained from assisting pregnant women within the jurisdiction to
travel abroad to obtain abortions by referral to a clinic, by the making for
them of travel arrangements, or by informing them of the identity and location
of and the method of communication with a specified clinic or clinics or
otherwise."
The
Chief Justice stated at p 624.
"I
am satisfied beyond doubt that having regard to the admitted facts the
defendants were assisting in the ultimate destruction of the life of the unborn
by abortion in that they were helping the pregnant woman who had decided upon
that option to get in touch with a clinic in Great Britain which would provide
the service of abortion. It seems to me to be an inescapable conclusion that if
a woman was anxious to obtain an abortion and if she was able by availing of
the counselling services of one or other of the defendants to obtain the
precise location, address and telephone number of, and method of communication
with, a clinic in Great Britain which provided that service, put in plain
language, that was knowingly helping her to attain her objective."
This
determination is clearly based on the premiss, and the inference may be drawn,
that an abortion could never be lawful. This conclusion is indicated also by
the words at p 625:
"The
performing of an abortion on a pregnant woman terminates the unborn life which
she is carrying. Within the terms of Article 40, s 3, subsection 3, it is a
direct destruction of the constitutionally guaranteed right to life of that
unborn child."
Such
a premiss is an error. Arising out of Article 40, s 3, subsection 3 there exist
extremely limited circumstances, when, to protect the life of the mother, an
abortion is lawful. In Attorney General v X [1992] 1 IR 1 the Chief Justice
stated at p 53:
"I,
therefore, conclude that the proper test to be applied is that if it is
established as a matter of probability that there is a real and substantial
risk to the life, as distinct from the health, of the mother, which can only be
avoided by the termination of her pregnancy, such termination is permissible,
having regard to the true interpretation of Article 40.3.3 of the Constitution."
The
premiss in Open Door Counselling 1988 being in error the decision flowing
therefrom is flawed.
2.
Constitution right to information about the availability of abortions outside
the State.
The
right to information was considered in the Open Door Counselling 1988
(following the words quoted previously) at p 625:
"It
must follow from this that there could not be an implied and unenumerated
constitutional right to information about the availability of a service of
abortion outside the State which, if availed of, would have the direct
consequence of destroying the expressly guaranteed constitutional right to life
of the unborn."
As
this conclusion rested on the flawed premiss that abortion is never lawful, by
inference not even to protect the life of the mother, then equally such
determination following thereon as to information is also in error. As there
are extremely limited circumstances when, to protect the life of the mother,
abortion is lawful, it follows that there is at least a right to information in
such cases and a corollary right to give the information.
3.
Right to information arising in other sections of the Constitution.
The
right to information was also related to Article 40.6.1 ie the right of
citizens to express freely their convictions and opinions. At p 625 it was held:
"As
part of the submission on this issue it was further suggested that the right to
receive and give information which, it was alleged, existed and was material to
this case was, though not expressly granted, impliedly referred to or involved
in the right of citizens to express freely their convictions and opinions
provided by Article 40, s 6, sub-s 1 of the Constitution, since, it was
claimed, the right to express freely convictions and opinions may, under some
circumstances, involve as an ancillary right the right to obtain information. I
am satisfied that no right could constitutionally arise to obtain information
the purpose of the obtaining of which was to defeat the constitutional right to
life of the unborn child. This ground of appeal, therefore, fails."
The
absolutism of the approach to the rights of the unborn, and the failure to
acknowledge the duty to protect the life of the mother, undermines this
statement of law. It is illogical and incorrect to analyse the situation and
determine that there can be no information given to or received by a party to
actions which may include situations where the actions are lawful. The fact
that there is constitutional provision to protect the life of the mother means
that there is a corollary right to relevant information. To deny a right under
the Constitution to information on the basis that another constitutional right
exists, without any attempt at harmonising the rights, is to fall into error.
4.
Abstract analysis of right to life of the unborn.
The
Open Door Counselling 1988 was decided on abstract facts as part of an analysis
of the rights of the unborn. It is a grave disadvantage to a case not to be
founded on particular facts relative to the parties. Because of the nature of
the case, the way it was presented, there is throughout an air of unreality.
The abstract nature of the case meant that the issues were neither fully argued
nor fully considered. This is evidenced by the subsequent decision in AG v X.
The fundamental flaws in Open Door Counselling 1988 were exposed by the
decision in AG v X. The reasoning in Open Door Counselling 1988 has infact
already been superseded by that case.
5.
"Due regard to the equal right to life of the mother."
The
Eighth Amendment now incorporated in the Constitution in Article 40.3.3 refers
to two rights to be protected. On the one hand there is "the right to life of
the unborn". On the other hand there is "due regard to the equal right to life
of the mother." The equal right to life of the mother did not arise for
interpretation in Open Door Counselling 1988. It was stated at p 621:
"It
was not part of the facts of this case nor of the submissions of the defendants
that the service which they were providing for pregnant women in relation to
the obtaining of abortion outside this jurisdiction was in any way confined to,
or especially directed towards, the due regard to the equal right of life of
the mother mentioned in the subsection of the Constitution which I have already
quoted, and this portion of that subsection did not therefore arise for
interpretation or decision in this case."
The
consideration of one right in isolation, to the exclusion of consideration of
the due regard to the equal right to life of the mother, is a flaw in the
reasoning and decision. The question of information may affect the right of
life of the mother. The decision resulted in an order relevant to women,
including pregnant women who, applying the test in AG v X, are in a situation
where there is as a matter of probability a real and substantial risk to their
life.
To
analyse the question of information by reference solely to the rights of the
unborn is flawed reasoning. The failure to consider the right to life of the
mother resulted in a defect in that it lead to an order which in certain
circumstances would endanger that right. This flaw is thus a reason to
reconsider the constitutional position.
6.
Scope of the Order.
The
injunction granted by the Supreme Court in the Open Door Counselling 1988 was
very broad. Its terms are set out earlier in this judgment.
This
order would include a prohibition on information to a pregnant woman who is
seeking a life-preserving abortion. It is not unconstitutional to give
information to a person, or receive information, of a constitutional activity.
Consequently, the injunction is too broad and encompasses activity which it
should not and therefore is erroneous.
The
absolute and broad nature of the injunction was noted by the European Court of
Human Rights in Open Door Counselling and Dublin Well Woman v Ireland [1992] 15
EHRR 244 at p 266.
"73.
The Court is first struck by the absolute nature of the Supreme Court
injunction which imposed a 'perpetual' restraint on the provision of
information to pregnant women concerning abortion facilities abroad, regardless
of age or state of health or their reasons for seeking counselling on the
termination of pregnancy. The sweeping nature of this restriction has since
been highlighted by the case of The Attorney General v X and others and by the
concession made by the Government at the oral hearing that the injunction no
longer applied to women who, in the circumstances as defined in the Supreme
Court's judgment in that case, were now free to have an abortion in Ireland or
abroad.
74.
On that ground alone the restriction appears over-broad and disproportionate.
Moreover, this assessment is confirmed by other factors."
While
that decision is not part of our domestic law it is a persuasive analysis of
the situation. It is clear that the injunction is over-broad. I conclude that
the decision in Open Door Counselling 1988 was in error on this ground also.
In
light of the analysis of the over-broad scope of the decision in Open Door
Counselling 1988 it is appropriate to note that the order made by the Learned
Trial Judge in this case extends not only to the Defendants, their servants or
agents but also to "anyone having knowledge of this Order". It is thus even
broader than that in Open Door Counselling 1988.
7.
Inveterate.
The
reasoning in Mogul of Ireland Ltd v Tipperary (North Riding) County Council
[1976] IR 260 at p 272-3 by Henchy J where he outlined the situation where a
court may follow a previous decision even if it was wrong, if it has become
inveterate and people have acted on it to such an extent that greater harm
would result from overruling it, does not apply. In this case at issue are
extant constitutional rights. It would not be constitutional or just to deny
these rights.
Conclusion
on stare decisis.
In
conclusion, for the reasons stated above, I am clearly of the opinion that Open
Door Counselling 1988 was an erroneous decision and should not be followed.
Thus, the Order by the Learned High Court Judge based on the said case should
not be confirmed.
The
law relevant to this case.
The
next issue is whether the appropriate law is that of 1992 or 1997. I am
satisfied that the appropriate law to determine the validity of the injunction
is the current law as at issue are constitutional rights and duties in an
ongoing situation. These constitutional rights and duties must be protected in
accordance with the constitutional law as it stands.
The
current law includes the 13th and 14th Amendments to the Constitution which
added to Article 40.3.3:
"This
subsection shall not limit freedom to travel between the State and another
state.
This
subsection shall not limit freedom to obtain or make available, in the State,
subject to such conditions as may be laid down by law, information relating to
services lawfully available in another State."
The
'conditions laid down by law' appear in Regulation of Information (Services
outside the State for Termination of Pregnancies) Act, 1995. It has been
determined in In re Article 26: Regulation of Information (Services outside the
State for Termination of Pregnancies) Bill, 1995 [1995] 1 IR 1 that this Bill
was not repugnant to the provisions of the Constitution. It was held that in
passing the Bill the Oireachtas has been engaged in the balancing of
constitutional rights and duties, including the right to life of the unborn,
the right to life of the mother, the right to information and other
constitutional rights. Hamilton CJ stated at p 53:
"The
requirement that the information to be given relates only to services lawfully
available outside the State, is truthful and objective, and does not advocate
or promote and is not accompanied by any advocacy or promotion of the
termination of pregnancy represents a fair and reasonable balancing by the
Oireachtas of the conflicting rights herein and is not so contrary to reason
and fairness as to constitute an unjust attack on the constitutional rights of
the unborn or any other person."
This,
together with the Constitution, is the current law relevant to the provision of
information. This is the applicable law, not that of 1992, to the order in
issue. In view of the current law the Order made by the High Court cannot be
confirmed. It is not necessary for the purpose of this application to draw the
boundaries of the extant law.
The
injunction should not be upheld by this Court. I would allow the appeal.
BLAYNEY
J: The full history and background of this appeal are set out in detail in the
judgment of the Chief Justice and it is not necessary for me to repeat them.
The
principal ground on which the appellants sought to have the decision of Morris
J set aside was that the learned trial judge was wrong to follow the decision
of this Court in The Attorney General (at the Relation of the Society for the
Protection of Unborn Children Ireland Limited) v Open Door Counselling Limited
and Dublin Well Woman Centre Limited [1988] IR 593 (hereinafter referred to as
the Open Door case). It was submitted that that case was wrongly decided and
its decision should now be overruled. I agree with the Chief Justice that it
should not be.
One
of the issues in the Open Door case was whether it was lawful for the
defendants to provide pregnant women with the names and addresses of abortion
clinics in the United Kingdom where abortions were performed. It was submitted
by the defendants that pregnant women had an implied constitutional right to
such information. Finlay CJ, with whose judgment the entire Court concurred,
dealt with this submission as follows at p 625 of the report:
"Alleged
constitutional right to information about the availability of abortions outside
the State.
The
performing of an abortion on a pregnant woman terminates the unborn life which
she is carrying. Within the terms of Article 40, s 3 sub-s 3 it was a direct
destruction of the constitutionally guarantee to life of that unborn child.
It
must follow from this that there could not be an implied and unenumerated
constitutional right to information about the availability of a service of
abortion outside the State which, if availed of, would have the direct
consequence of destroying the expressly guaranteed constitutional right to life
of the unborn. As part of the submission on this issue it was further suggested
that the right to receive and give information which, it was alleged, existed
and was material to this case, was, though not expressly granted, impliedly
referred to or involved in the right of citizens to express freely their
convictions and opinions provided by Art 40, s 6, sub-s 1 of the Constitution,
since, it was claimed, the right to express freely convictions and opinions
may, under some circumstances, involve as an ancillary right the right to
obtain information. I am satisfied that no right could constitutionally arise
to obtain information the purpose of obtaining of which was to defeat the
constitutional right to life of the unborn child. This ground of appeal,
therefore, fails."
It
was submitted by Mr Rogers, on behalf of the appellants, that the approach of
the Chief Justice was wrong, that he had approached the issue on the basis of a
hierarchy of rights, namely, that the right to life came before the right to
information. It was submitted that the Chief Justice did not seek to harmonise
the conflicting rights as he ought to have.
This
submission assumes that there was in fact a conflict. But it is clear from what
the Chief Justice said that there was not. He expressly excluded the
possibility of there being any constitutional right to information the purpose
of obtaining which was to defeat the constitutional right to life of the unborn
child. Since there was no such right there was never any question of there
being a conflict between it and the right to life of the unborn.
But
even if one were to accept that there could be a constitutional right to
information in such circumstances, I think it is clear that the right to life
of the unborn child would prevail over it. In the case of The Attorney General
v X [1992] 1 IR 1 Finlay CJ said in his judgment at p 57:
"I
accept that where there exists an interaction of constitutional rights the
first objective of the courts in interpreting the Constitution and resolving
any problem thus arising should be to seek to harmonise such interacting
rights. There are instances, however, I am satisfied, where such harmonisation
may not be possible and in those instances I am satisfied, as the authorities
appear to establish, that there is a necessity to apply a priority of rights.
Notwithstanding
the very fundamental nature of the right to travel and its particular
importance in relation to the characteristics of a free society, I would be
forced to conclude that if there were a stark conflict between the right of a
mother of an unborn child to travel and the right to life of the unborn child,
the right to life would necessarily have to take precedence over the right to
travel. I therefore conclude that the submission made that the mother of the
unborn child had an absolute right to travel which could not be qualified or
restricted, even by the vindication or defence of the right to life of the
unborn, is not a valid or sustainable submission in law."
If
there were a constitutional right to information, it must in my opinion rank
lower than the right to travel, and since the latter would have to give way to
the right to life of the unborn, the right to information would have to give
way also.
For
these reasons I am satisfied that it has not been shown that the Open Door case
was wrongly decided and I reject the appellants' submissions on this issue.
I
now turn to consider what seems to me to be the substantial issue in this
appeal: whether this Court, following the decision in the Open Door case,
should confirm the injunction granted by the learned trial judge.
Mr
Rogers contended that we should decide the appeal in accordance with the law as
it stood when the case came before the learned trial judge in August 1992. If
this contention is correct, and the Court were to follow the decision in the
Open Door case, the logical conclusion would appear to be that the injunction
should be confirmed. However, it seems to me that Mr Rogers' submission is not
correct.
This
appeal is against the granting of an injunction which is an equitable remedy
and is discretionary. Furthermore, in the case of injunctions, as is stated in
Bean on Injunctions (7th edition 1996) at page 14 "The Court must make its
decision by reference to the state of the law at the date when the question has
to be resolved and not the date when the writ was issued." The authority cited
for this statement of the law is Application DES GAZ SA v Falks Veritas Limited
[1974] Ch 381. The plaintiff was a French company which issued a writ in April
1972 seeking inter alia an injunction for breach of copyright. Before the
action came on for trial the United Kingdom became a member of the European
Economic Community and the defendants applied for leave to amend their defence
and counterclaim to allege "concerted practices" and "abuse of dominant
position" by the plaintiff company contrary to Articles 85 and 86 of the Treaty
of Rome. The defendants were granted leave to amend and the plaintiffs' appeal
against this order was dismissed by the Court of Appeal. They held that where a
plaintiff claimed relief in the form of an injunction the question whether it
should be granted had to be determined by reference to the state of the law at
the date when the question came to be decided and not at the date when the writ
was issued. Lord Denning MR said in his judgment at p 392:
"In
general, when the law is altered during the pendency of an action, the rights
of the parties are decided according to the law as it existed when the action
was begun, unless the new statute, on its true intendment, shows an intention
to vary such rights: see Hutchinson v Jauncey [1950] 1 KB 574 and Wilson v
Dagnall [1972] 1 QB 509, but in this case the French Gaz company claim an
injunction. They seek to prevent the English Veritas company in the future from
making or selling the orange Veritas tins. If an injunction is granted, it will
operate from the date of trial onwards. In my opinion that point -- an
injunction or not -- will have to be decided according to the law as it stands
at the date of the trial. The French Gaz company's counsel recognised this, but
he urged that the amendment should await that time."
And
Stamp LJ said in his judgment at p 399:
"It
was submitted that the rights and liabilities of the parties fall to be
determined as at the date of the issue of the writ and that it would be wrong
to allow an amendment to the defence based on subsequent legislation. I do not
find it necessary to discuss the limitations on or the exceptions to that
principle: for it is abundantly clear that the question whether an injunction
ought to be granted is one which falls to be determined by reference to the
circumstances and the state of the law existing at the date when the question
falls to be determined and not at the date of the issue of the writ."
I
am satisfied that the passages cited are a correct statement of the law. It
follows that in considering whether the injunction granted by the learned trial
judge should be confirmed or not, the Court must look at what the present state
of the law is in regard to providing information here in regard to abortion
services in the United Kingdom and not at what it was at the time the
proceedings commenced.
There
have been two significant changes in the law since August 1992. Firstly, there
has been the Fourteenth Amendment of the Constitution whereby Art 40.3.3. was
amended by the addition of a paragraph dealing specifically with the right to
make information available and secondly, the Regulation of Information
(Services Outside the State for Termination of Pregnancies) Act, 1995
(hereinafter referred to as the 1995 Act) was passed on the 12 May 1995 and
laid down the conditions which must be observed in the giving of information.
The
paragraph added to Art 40.3.3. by the Fourteenth Amendment is as follows:
"This
subsection shall not limit freedom to obtain or make available, in the State,
subject to such conditions as may be laid down by law, information relating to
services lawfully available in another State."
The
effect of this amendment was to make lawful the type of information being
published by the appellants "subject to such conditions as may be laid down by
law". These conditions are now laid down in the Regulation of Information Act
1995.
It
was submitted by Mr Murphy, junior counsel, on behalf of the respondent that
the information being published by the appellants does not comply with the
conditions laid down by the 1995 Act, and in particular that it does not comply
with the conditions contained in ss 4 and 5, so in effect the appellants were
claiming that they are entitled to act in breach of the law. Mr Murphy further
submitted that notwithstanding the amendment of the Constitution, and the
passing of the 1995 Act, the substance of the law remained the same and the
appellants are therefore precluded from acting in the way they are. Mr Murphy
submitted that the 1995 Act maintained the status quo.
In
response to Mr Murphy's submissions on this issue, Mr Rogers submitted that the
only evidence before the Court was of the situation in 1992, and that it was
possible that what was being done then by the appellants then may have been
abandoned. He argued that the proper course for the Court to take was to make a
ruling one way or the other on the findings of the learned trial judge. As
regards the Regulation of Information Act 1995, he submitted that it is a
self-contained code which does not confer any jurisdiction on the courts to
make orders inter partes. S 10 makes contraventions of the Act criminal
offences. The respondents' correct course, he said, if they considered that the
appellants were acting in breach of the 1995 Act was to apply to the
appropriate authorities to institute criminal proceedings.
Having
carefully considered the relevant law as it now is, and counsel's submissions,
the conclusion I have reached is that this Court should not continue the
injunction granted by the learned trial judge.
It
seems to me that the legal position may be summarised in a few very brief
words. The appellants are either complying with the conditions set out in the
1995 Act or they are not. If they are complying with those conditions, they are
protected by the Fourteenth Amendment of the Constitution. If they are not
complying with them, they are committing criminal offences and the only party
who has the right to obtain an injunction against them is the Attorney General
(see Attorney General v Paper Link Limited [1984] ILRM 373).
As
a result of the Fourteenth Amendment and the passing of the 1995 Act, the legal
position has been wholly altered since the proceedings were instituted. At that
time the appellants' activities were unlawful as being in breach of the
constitutional right to life of the unborn, but they were not criminal. At the
present time, their activities are either lawful or criminal and whichever it
is, they cannot be restrained by the respondent. Since the Court, in
considering whether an injunction should be granted, must look at the law as it
is now, and not as it was when the proceedings were commenced, I am satisfied
that the injunction granted by the trial judge cannot be continued and I would
allow the appeal to the extent of lifting the injunction. I have come to this
conclusion solely because of the change in the law since the decision in the
High Court and I am satisfied that that decision, when given, was correct.
KEANE
J: The facts relevant to this appeal are fully set out in the judgment of the
Chief Justice and need not be repeated. It is, however, relevant to draw
attention to what might be described as the most significant legal landmarks
which have preceded the hearing in this court.
The
logical starting point is s 58 of the Offences Against the Person Act 1861
which provides that:-
"every
woman being with child, who, with intent to procure her own miscarriage, shall
unlawfully administer to herself any poison or other noxious thing, or shall
unlawfully use any instrument or other means whatsoever with the like intent,
and whosoever, with intent to procure the miscarriage of any woman, whether she
be or be not with child, shall unlawfully administer to her or cause to be
taken by her any poison or other noxious thing, or shall unlawfully use any
instrument or other means whatsoever with the like intent, shall be guilty of
felony, and being convicted thereof shall be liable, at the discretion of the
court, to be kept in penal servitude for life . . . or to be imprisoned for any
term, not exceeding two years . . ."
Section
59 of the same Act provides that:-
"whosoever
shall unlawfully supply or procure any poison or other noxious thing, or any
instrument or thing whatsoever, knowing that the same is intended to be
unlawfully used or employed with intent to procure the miscarriage of any
woman, whether she be or be not with child, shall be guilty of a misdemeanour,
and being convicted thereof shall be liable . . . to imprisonment for any term
not exceeding two years . . ."
In
R v Bourne [1939] 1 KB 687, the defendant, an obstetrician at St Mary's
Hospital, in London, was charged with having used a instrument with intent to
procure the miscarriage of a young girl, contrary to the provisions of s 58.
The facts in the case were that the girl, who was then under the age of 15, had
been raped with great violence by a man who was in due course convicted of the
crime. As a result of the rape, the girl became pregnant and her case was
brought to the attention of the defendant, who, after examination of the girl,
performed the operation with the consent of her parents. The defendant gave
evidence that in his opinion the continuance of the pregnancy would probably
cause serious injury to the girl, injury so serious as to justify the
termination of the pregnancy at a time when the operation could be performed
without any risk to her and under favourable conditions. That view was
confirmed by two independent experts one of whom, a specialist in medical
psychology, expressed the view that, if the girl gave birth to a child, the
consequence was likely to be that she would become "a mental wreck".
McNaghten
J directed the jury as follows:-
"the
burden rests on the Crown to satisfy you beyond reasonable doubt that the
defendant did not procure the miscarriage of the girl in good faith for the
purpose only of preserving her life. If the Crown fails to satisfy you of that,
the defendant is entitled by the law of this land to a verdict of acquittal.
If, on the other hand, you are satisfied that what the defendant did was not
done by him in good faith for the purpose only of preserving the life of the
girl, it is your duty to find him guilty. It is said, and I think said rightly,
that this is a case of great importance to the public and, more especially, to
the medical profession; but you will observe that it has nothing to do with the
ordinary case of procuring abortion to which I have already referred. In those
cases the operation is performed by a person of no skill, with no medical
qualifications, and there is no pretence that it is done for the preservation
of the mother's life. Cases of that sort are in no way affected by the
consideration of the question which is put before you today."
Having
gone on to point out that there had been much discussion in the case as to the
difference between "danger to life" and "danger to health" and expressed his
view that the words "for the purpose of preserving the life of the mother"
should be given "a reasonable interpretation" by the jury, he went on:-
"if
the doctor is of opinion, on reasonable grounds and with adequate knowledge,
that the probable consequence of the continuance of the pregnancy will be to
make the woman a physical or mental wreck, the jury are quite entitled to take
the view that the doctor who, under those circumstances and in that honest
belief, operates, is operating for the purpose of preserving the life of the
mother."
Bourne's
case does not appear to have been considered by any Irish court (save for a
brief reference in the judgment of Hamilton P, as he then was, in AG (SPUC) v
Open Door Counselling Limited, [1988] IR 593,) until the decision of this court
in X v Attorney General, [1992] 1 IR 1.
That
is not to say, of course, that illegal abortions were not being performed in
Ireland in the past. However, the situation changed radically following the
enactment in Great Britain of the Abortion Act 1967 and the growing ease of
travel between the two islands.
The
Offences Against the Person Act, 1861, remains in force in this country and
indeed s 10 of the Health (Family Planning) 1979 made it clear that nothing in
the Act was to be construed as authorising
"(a)
the procuring of abortion,
(b)
The doing of any other thing, the doing of which is prohibited by s 58 or 59 of
the Offences Against the Person Act 1861 . . . or
(c)
The sale, importation into the State, manufacture, advertising or display of
abortfacients."
Prior
to the enactment by the people of the Eighth Amendment to the Constitution in
1983, there were serious doubts as to whether the approach to the law in
Bourne's case was consistent with the Constitution. In McGee v The Attorney
General [1974] IR 284 Walsh J said:-
"any
action on the part of either the husband and wife or of the State to limit
family sizes by endangering or destroying human life must necessarily not only
be an offence against the common good but also against the guaranteed personal
rights of the human life in question."
Similarly,
in the course of his judgment in Norris v The Attorney General reported in
[1984] IR 36 but decided prior to the enactment of the Eighth Amendment,
McCarthy J said:-
"for
myself I am content to say that the provisions of the preamble, which I have
quoted earlier in this judgment, would appear to lean heavily against any view
other than that the right to life of the unborn is a sacred trust to which all
the organs of Government must lend their support."
Those
views, essentially resting on the premiss that the right to life of the foetus
is one of the unenumerated rights protected by Article 40.3.1o, were obiter. As
will be seen, differing views were expressed in this court in X v Attorney
General as to whether, prior to the enactment of the Eighth Amendment, the
interpretation given in Bourne's case to the 1861 Act represented the law in
Ireland. All one can say with confidence at this stage is that the
preponderance of judicial opinion would suggest that the Bourne approach could
not have been adopted in this country consistently with the Constitution prior
to the Eighth Amendment.
That
amendment (contained in Article 40.3.3o) is 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."
This
amendment was considered by the High Court and the Supreme Court in Attorney
General (SPUC) v Open Door Counselling Limited, which was inevitably the
subject of much discussion in the present case. The facts as found in the High
Court and summarised in the judgment of Finlay CJ in this court are obviously
of critical importance and are as follows:-
"The
defendant Open Door Counselling Limited:-
(a)
By its servants or agents, counsels in a non-directive manner pregnant women
resident in Ireland and the counselling takes place in Dublin.
(b)
Abortion or termination of pregnancy may be one of the options discussed within
that counselling.
(c)
If a pregnant woman wants to consider the abortion options further, this
defendant will arrange to refer her to a medical clinic in Great Britain.
(d)
This defendant's servants or agents inspect the medical clinic in Great Britain
to satisfy themselves that the clinic operates at the highest standard.
(e)
At these clinics abortions have been performed on pregnant woman who have been
previously counselled by this defendant.
(f)
Pregnant women resident in Ireland have been referred to medical clinics in
Great Britain where abortions have been performed for many years, including the
months of November and December 1984."
Broadly
similar findings of fact were made in respect of the second named defendant in
those proceedings, the Well Woman Centre Limited.
The
relief given to the plaintiff in that case, as varied by the order of this
court, was a declaration:-
"that
the activities of the defendant, their servants or agents in assisting pregnant
women within the jurisdiction to travel abroad to obtain abortions by referral
to a clinic; by the making of their travel arrangements, or by informing them
of the identity and location of and method of communication with a specified
clinic or clinics are unlawful, having regard to the provisions of Article 40,
s 3 sub-s 3 of the Constitution."
An
injunction perpetually restraining the defendants from so assisting pregnant
woman was also granted.
In
the High Court, Hamilton P, as he then was, expressed his conclusions (at p
617) as follows:-
"I
am satisfied that the activities of both defendants, through their servants and
agents amount to counselling and assisting pregnant women to travel abroad to
obtain further advice on abortion and to secure an abortion. Are such
activities unlawful having regard to the provisions of Article 40, s 3 sub-s 3
of the Constitution of Ireland?
"I
have no doubt but that they are.
"In
this Article the State acknowledges the right to life of the unborn and, with
due regard to 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 such
rights.
"I
do not, in the circumstances of this case, have to have regard to the effect of
'the equal right to life of the mother' on the right to life of the unborn
acknowledged by this Article.
"As
I have already stated, that right to life of the unborn includes the right to
have that right preserved and defended and to be guarded against all threats to
its existence before and after birth, and that it lies not in the power of a
parent to terminate its existence and that any action on the part of any person
endangering that life was necessarily not only an offence against the common
good but also against the guaranteed personal rights of the human life in
question . . .
"The
qualified right to privacy, the rights of association and freedom of expression
and the right to disseminate information cannot be invoked to interfere with
such a fundamental right as the right to life of the unborn, which is
acknowledged by the Constitution of Ireland."
Those
conclusions were unanimously upheld by this court. Speaking for the court,
Finlay CJ said:-
"It
was not part of the facts of this case nor of the submissions of the defendants
that the service which they were providing for pregnant woman in relation to
the obtaining of abortions outside this jurisdiction was in any way confined
to, or especially directed towards, the due regard to the equal right of life
of the mother mentioned in the subsection of the Constitution which I have
already quoted, and this portion of that subsection did not therefore arise for
interpretation or decision in this case."
The
learned Chief Justice, having gone on to consider certain legal aspects of the
case, not all of which arise for consideration in this case, went on to say
that:-
"I
am satisfied beyond doubt that having regard to the admitted facts the
defendants were assisting in the ultimate destruction of the life of the unborn
by abortion in that they were helping the pregnant woman who had decided upon
that option to get in touch with a clinic in Great Britain which would provide
the service of abortion."
On
the issue which was of central importance in this case, he had this to say:-
"Alleged
Constitutional Right to Information about the Availability of Abortions outside
the State
"The
performing of an abortion on a pregnant woman terminates the unborn life which
she is carrying. Within the terms of Article 40, s 3, sub-s 3 it is a direct
destruction of the constitutionally guaranteed right to life of that unborn
child.
"It
must follow from this that there could not be an implied and unenumerated
constitutional right to information about the availability of a service of
abortion outside the State which, if availed of, would have the direct
consequence of destroying the expressly guaranteed constitutional right to life
of the unborn. As part of the submission on this issue it was further suggested
that the right to receive and give information which, it was alleged, existed
and was material to this case was, though not expressly granted, impliedly
referred to or involved in the right of citizens to express freely their
convictions and opinions provided by Article 40, s 6, subs 1 of the
Constitution, since, it was claimed, the right to express freely convictions
and opinions may, under some circumstances, involve as an ancillary right the
right to obtain information. I am satisfied that no right could
constitutionally arise to obtain information the purpose of the obtaining of
which was to defeat the constitutional right to life of the unborn child."
After
that case had been decided, the plaintiffs instituted the present proceedings.
As is clear from the recital of the facts in the judgments already given,
however, the activities of the defendants in these proceedings went
considerably further than the form of counselling restrained in Open Door
Counselling, consisting as it did of the publication and distribution of
information as to the identity, location of and method of communication with
specified abortion clinics in England. It will be necessary at a later point to
refer to the judgment of Morris J on the plenary hearing in the High Court from
which the present appeal is taken. Before doing so, however, the decision in
Attorney General v X, which was pronounced after the grant of an interlocutory
injunction by this court but before the plenary hearing in the High Court, must
be considered.
The
facts in that case are so well known that they need not be set out again. It
was held by this court (Hederman J dissentiente), in allowing the appeal, that
Article 40.3.3o permitted the termination of a pregnancy when it was
established as a matter of probability that there was "a real and substantial
risk" to the life of the mother if such termination was not effected. The
majority rejected the submission advanced on behalf of the Attorney General
that such a termination was only lawful if it was established that the
continuation of the life of the foetus constituted a risk of 'immediate or
inevitable death' to the mother. So to hold, it was said, would not be to have
due regard to the equal right to life of the mother and, in such circumstances,
it was not practicable to uphold the right to life of the foetus.
In
the course of his judgment, Finlay CJ said:-
"In
vindicating and defending as far as practicable the right of the unborn to life
but at the same time giving due regard to the right of the mother to life, the
court must, amongst the matters to be so regarded, concern itself with the
position of the mother within a family group, with persons on whom she is
dependant, with, in other instances, persons who are dependant upon her and her
interaction with other citizens and members of society in the areas in which
her activities occur. Having regard to that conclusion, I am satisfied that the
test proposed on behalf of the Attorney General that the life of the unborn
could only be terminated if it were established that an inevitable or immediate
risk to the life of the mother existed, for the avoidance of which a
termination of the pregnancy was necessary, insufficiently vindicates the
mother's right to life.
"I,
therefore, conclude that the proper test to be applied is that if it is
established as a matter of probability that there is a real and substantial
risk to the life, as distinct from the health, of the mother, which can only be
avoided by the termination of her pregnancy, such termination is permissible,
having regard to the true interpretation of Article 40, s 3 sub-s 3 of the
Constitution."
In
that judgment, Finlay, CJ said that he was satisfied that, while it was the
first objective of the courts in resolving any problem arising from the
interaction of constitutional right to seek to harmonise them, there were
instances where such harmonisation might not be possible, in which case it was
necessary to apply "a priority of rights". McCarthy J, while agreeing with the
Chief Justice as to the "real and substantial risk to life" test, adopted a
different approach to the question of resolving apparently conflicting
constitutional rights, saying that, in his view, the authorities did not
indicate
"a
hierarchy of rights but, rather, the reconciliation of them."
In
agreeing with the conclusion of the Chief Justice as to the appropriate test to
be applied in that case, he added:-
"this
conclusion leads inevitably to the recognition that the wording of the
amendment contemplates abortion lawfully taking place within this State."
He
also expressed a clear view, that, prior to the enactment of the Eighth
Amendment, abortion, for any purpose, was unlawful.
O'Flaherty
J, while agreeing with the "real and substantial risk to life" test, expressed
no opinion on the "hierarchical" approach to competing constitutional rights.
Egan J, while also accepting that test and that a hierarchy of constitutional
rights existed, added:
"this
cannot be taken to mean that an immutable list of precedence of rights can be
formulated."
It
would appear that Egan J was of the view that Bourne's case was the law prior
to the enactment of the Eighth Amendment.
Hederman
J dissented from the majority in holding that:-
"before
that decision [to terminate a pregnancy] is taken it is obvious that the
evidence required to justify the choice being made must be of such a weight and
cogency as to leave open no other conclusion but that the consequences of the
continuance of the pregnancy will, to an extremely high degree of probability,
cost the mother her life and that any such opinion must be based on the most
competent medical opinion available."
He
concluded that there had not been such evidence before the High Court in that
case.
Hederman
J, who conducted the most detailed analysis of the decision in Bourne's case,
was in agreement with McCarthy J that it did not represent the law in Ireland
prior to the Eighth Amendment.
It
remains to note that, in the course of his judgment, O'Flaherty J, observed
that:-
"promotional
propaganda in respect of abortions abroad is prohibited. The Attorney General
(SPUC) v Open Door Counselling Limited [1988] IR 593. " [Emphasis added]
The
course of the proceedings in the present case, culminating in the judgment of
Morris J in the High Court, have already been fully set out in the judgment of
the Chief Justice. Some significant developments which followed that judgment
must also be mentioned, although the extent to which they are relevant to the
present proceedings is a matter for argument. In 1992, as the result of a
referendum, the following additional paragraphs were added to Article 40.3.3o:-
"This
subsection shall not limit freedom to travel between the State and another
state.
"This
subsection shall not limit freedom to obtain or make available in the State,
subject to such conditions as may be laid down by law, information relating to
services lawfully available in another state."
The
conditions referred to in the Fourteenth Amendment to the Constitution were
purportedly prescribed by the Information (Services outside the State for the
Termination of Pregnancies) Bill, 1995, which was passed by both Houses of the
Oireachtas but referred to this court by the President for an opinion as to its
validity pursuant to Article 26 of the Constitution.
The
Chief Justice in delivering the opinion of the court (In Re: Article 26 of the
Constitution and the Regulation of Information (Services Outside the State for
the Termination of Pregnancies) Bill [1995] IR 1 said:-
"If
the purpose of . . . travel or the securing of information is to procure an
unlawful abortion, then it would be unlawful having regard to the provision of
Article 40.3.3o of the Constitution, but if the purpose was the procurement of
a permitted or lawful abortion, ie one that complies with the test laid down in
Attorney General v X then neither the travel nor the giving or obtaining of
information with regard thereto would be unlawful."
Having
considered the arguments advanced by two teams of counsel and the Attorney
General, the court went on to uphold the validity of the bill which was then
signed by the President and became law.
In
the course of his judgment in this case, Morris J identified what he described
as a "profound distinction" between the distribution of the information in the
present case and the communication of that information to what he described as
a "clearly defined and extremely restricted type of person identified in the
test," ie pregnant women coming within the criteria laid down in Attorney
General v X. I think, however, that it is quite clear that, apart altogether
from that distinction which he drew, Morris J would have considered himself
bound by the decision of this court in Open Door Counselling Limited to grant
the perpetual injunction sought in this case. He was undoubtedly correct in so
holding, but the Defendants have submitted that the latter case was wrongly
decided by this court and should be overruled. If that submission of the
Defendants is not well founded, it would follow inevitably that the decision of
Morris J should be upheld by this court. Accordingly, the first question that
arises is as to whether that case was wrongly decided.
In
approaching that question, it is necessary at the outset to examine the
circumstances in which this court will exercise the freedom to depart from the
strict application of the rule of stare decisis first referred to in The State
(Quinn) v Ryan [1965] IR 70 and Attorney General v Ryan's Car Hire Limited
(1965) IR 642.
The
Chief Justice has referred in his judgment to the following statement of the
law by Henchy J in Mogul of Ireland Limited v Tipperary (North Riding) Co
Council [1976] IR 260:
"a
decision of the full Supreme Court . . . given in a fully argued case and on a
consideration of all the relevant materials, should not normally be over-ruled
merely because a later court inclines to a different conclusion." [Emphasis
supplied]
That
statement, carefully worded as it is, was not intended, I would respectfully
suggest, to apply to every invitation to this court to reconsider a previous
decision, irrespective of the specific context in which the earlier decision
was reached. Such an approach, in my view, would have more in common with the
old unbending approach to stare decisis in this court than with the new found
flexibility heralded by the State (Quinn) v Ryan. It is to be observed that
Mogul of Ireland was a case concerning the interpretation of a particular
statutory code affecting a limited and defined section of the community (those
whose property had been maliciously injured and the local authorities obliged
to compensate them), a construction which had been adopted and applied for many
decades and had been unanimously upheld by the former Supreme Court. It was in
that context that Henchy J observed:-
"even
if the later court is clearly of opinion that the earlier decision was wrong,
it may decide in the interests of justice not to overrule it if has become
inveterate and if, in a widespread or fundamental way, people have acted on the
basis of its correctness to such an extent that greater harm would result from
overruling it than from allowing it to stand. In such cases the maxim communis
error facit jus applies . . ."
The
contrast with the present case is plain. In this case, the court is concerned
with the constitutional rights, not merely of every woman of child bearing age
and of the embryos and foetuses which they are carrying, but of the even wider
range of citizens who will be affected, identified by Finlay CJ in the Attorney
General v X in the passage to which I have already referred. The recent history
of the jurisprudence of this court affords a number of instances in which the
possible infringement of the constitutional rights of citizens or other weighty
constitutional considerations have been seen as justifying a departure from
earlier decisions of this court: see McGimpsey v Ireland [1990] 110 IR 129; The
People v Kenny [1990] 2 IR 110; Finucane v McMahon [1990] 1 IR 165. It is true
that, in some at least of those decisions, dissenting opinions had been voiced,
whereas in Open Door Counselling the judgment of Finlay CJ was concurred in
without reservation by the other four members of the court. I do not think,
however, that the absence of dissent in the earlier decision can be regarded as
foreclosing any further judicial determination of the issue at the level of
this court, particularly when constitutional rights and their protection are in
issue. So to hold would be seriously to encroach on the role of this court as
the guardian of last resort of the Constitution and might oblige it to
perpetuate an erroneous interpretation of the Constitution.
In
considering the question as to whether Open Door Counselling was correctly
decided, the complex and much debated problem presented by what appear to be
conflicting constitutional rights inevitably arises. The "hierarchical"
approach adopted in DPP v Shaw [1982] IR 1 at first sight presents an
attractive solution to the problem, particularly where the right to life is
involved. As Hederman J observed in Attorney General v X:
"the
objective of protecting human life . . . is the essential value of every legal
order and central to the enjoyment of all other rights guaranteed by the
Constitution."
What
is at issue in this case, however, as it was in Open Door Counselling and
Attorney General v X, is not the identifiable superiority of one constitutional
right (such as the right to life) to another: it is whether the duty to protect
and vindicate that highest of constitutional rights may sometimes have to be
reconciled with the exercise of other constitutional rights and duties with
which it is in conflict.
The
right to life itself, in other words, is not an absolute right, as the
Constitution itself acknowledges, by implicitly recognising the right of the
State to provide for capital punishment: see Articles 13.6 and 40.4.5o. The
same legal considerations underlie the right of the security forces of the
State, in extreme circumstances, to take human life and the right of self
defence involving, again in extreme circumstances, the killing of another human
being, aspects of our law the constitutionality of which has never been
challenged.
The
task of the courts in cases such as the present, accordingly, is not simply to
determine whether one constitutional right can properly be regarded as superior
to another in the hierarchy of such rights. It is rather to decide whether, in
the specific circumstances of a particular case, a constitutional right, such
as the right to life of the unborn, can enjoy the protection which would
normally be available to it, having regard to the paramount necessity to uphold
the Constitution as a whole.
Those
considerations apply with particular force in the present case where we are
concerned with a provision of the Constitution which makes it clear that the
right thereby acknowledged and guaranteed is protected only to the extent that
such protection is consistent with "due regard to the equal right to life of
the mother" and, in any event, only to the extent that its protection is
"practicable".
In
this case, the court is concerned with the relationship between the right to
life of the unborn and the right to communicate (and the corresponding right to
receive) information rather than with that between the right to life of the
unborn and the equal right to life of the mother.
It
was held by Costello J as he then was, in Attorney General v Paperlink Limited
[1984] ILRM 373 that what he described as "the very general and basic human
right to communicate (information)" was not guaranteed by Article 40.6.1oi,
dealing with freedom of expression, but was one of the unenumerated rights
protected by Article 40.3.1o. It is a necessary corollary of that proposition
that other citizens have a constitutional right to receive such information. As
was pointed out by the court in the passage already cited in In Re: Article 26
of the Constitution and the Regulation of Information (Services outside the
State for the Termination of Pregnancies) Bill 1995, even prior to the
Fourteenth Amendment the obtaining of information with regard to permitted or
lawful abortions was not unlawful.
The
extract which I have already cited from the judgment of the learned Chief
Justice in Open Door Counselling is, in my view, only consistent with the right
to life of the unborn being regarded as an absolute right which must be
protected in every case, notwithstanding the existence of other relevant
constitutional rights. In the context of the present proceedings, it is
necessary, at the risk of repetition, to refer again to the concluding sentence
in that passage:-
"I
am satisfied that no right can constitutionally arise to obtain information the
purpose of the obtaining of which was to defeat the constitutional right to
life of the unborn child."
That
unequivocally worded statement admits of no exception or qualification in the
case of information afforded to pregnant women with a view to the obtaining of
an abortion in circumstances where the purpose was the procurement of an
abortion that complied with the test laid down in Attorney General v X. As a
statement of the law, it is, in my respectful view, impossible to reconcile
with the decision of this court in the Attorney General v X and the statement I
have already quoted from the opinion of the court in In Re Article 26 of the
Constitution and the Regulation of Information (Services Outside the State for
the Termination of Pregnancies) Bill, 1995.
It
is also noteworthy that the European Court of Human Rights have held by a
majority that the injunction granted in Open Door Counselling was not
consistent with the provisions of Article 10 of the European Convention on
Human Rights and Fundamental Freedoms. That judgment is not, of course, in any
sense binding on this court, but it lends, in my view, powerful support to the
view that the comprehensive nature of the injunction granted cannot be
reconciled with the right to communicate, and to receive, information relating
to abortion in certain circumstances.
It
was said that:-
"the
court . . . struck by the absolute nature of the Supreme Court injunction which
imposes a 'perpetual' restraint on the provision of information to pregnant
women concerning abortion facilities abroad, regardless of age or state of
health or their reasons for seeking counselling on the termination of
pregnancy. The sweeping nature of this restriction has since been highlighted
by the case of The Attorney General v X & Ors and by the concession made by
the Government at the oral hearing that the injunction no longer applied to
women who, in the circumstances as defined in the Supreme Court's judgment in
that case, were now free to have an abortion in Ireland or abroad. On that
ground alone the restriction appears over broad and disproportionate . . ."
[Open Door Counselling and Another v Ireland, 15 EHRR 244 at p 266.]
I
agree that the decision of this court in Open Door Counselling should not be
regarded as having decided any issues other than those which were expressly
before the court. I would not, however, with respect, agree that the fact that
no woman in the position of the defendant in Attorney General v X was a party
to the case is a ground for treating the decision as confined in its
application to cases other than those falling into the Attorney General v X
category.
It
is important to bear in mind the nature of the proceedings in Open Door
Counselling. It was not an action between individual citizens involving only
the application of principles of private law. It was a public law action
instituted by the Attorney General (at the relation of the plaintiffs in the
present case) raising far reaching questions of constitutional law which had
never before been considered by the courts. Any rulings of law made by the High
Court and implemented by declarations and injunctions were, to the extent that
they were upheld by this court, binding, not merely on the defendants, but on
every citizen in the land. I find it difficult to understand how, in these
circumstances, the conclusion was reached that the portion of the subsection
requiring "due regard to the equal right to life of the mother" did not arise
for interpretation or decision in that case. The passage already cited from the
judgment of the learned Chief Justice on one reading would suggest that this
was the result of a concession by counsel on behalf of the defendants. (The
report of the arguments of counsel for the defendants in that case, admittedly
lamentably uninformative, contain no indication as to whether such a concession
was made.)
The
extent to which a decision is binding on other courts may sometimes depend on
whether the point in question was the subject of argument in the decision under
consideration. That does not arise in this case, where we are solely concerned
with whether Open Door Counselling was correctly decided. I am satisfied that
the exclusion from any consideration in that case of the words "with due regard
to the equal right to life of the mother" led to a decision which was erroneous
in point of law, ie that there could not in any circumstances be an implied and
unenumerated constitutional right to information about the availability of the
service of abortion outside the State which, if availed of, would have as a
direct consequence the termination of a pregnancy. That statement of the law,
is, in my opinion, inconsistent with the statement of the law in this court in
X v The Attorney General, and the passage cited from the opinion of this court
in Re: Article 26 of the Constitution and the Regulation of Information
(Services Outside the State for Termination of Pregnancies) Bill 1995 and
should not now be followed.
It
has been emphasised in the present case that the defendants were not merely
confining their activities to cases falling within the category identified in
Attorney General v X but were also distributing the information "to the
community at large and to university students in particular", as it was put by
Morris J. The decision in Open Door Counselling was not, however, confined in
any way to the distribution of the information in that fashion, as Finlay CJ
made clear on the hearing of an appeal from the refusal by Carroll J to grant
an interlocutory injunction in the present proceedings, in the passage from his
judgment already cited by the Chief Justice. It follows that even if the
defendants had restricted their activities prior to the hearing in the High
Court to the giving of information on a confidential one-to-one basis to any
students who sought it, the High Court would have been obliged to grant an
injunction, although one couched in different terms from the one under appeal.
The
question remains as to whether this court should now substitute for the order
granted in the High Court an injunction restraining the defendants from
communicating the relevant information save in cases in which the person giving
the information is satisfied that, as a matter of probability, there is a real
and substantial risk to the life, as distinct from the health, of the mother.
It
is at least questionable whether relief should be granted in that form when the
High Court was never invited to make such an order and there has consequently
been no hearing at first instance of the issue. However, even if one were to
assume that this court could properly grant such an injunction, the question
would arise as to whether it should be granted, having regard to the fact that
a perpetual injunction is a discretionary remedy. No doubt that discretion is
more likely to be exercised in favour of the plaintiff in a case, such as this,
where the upholding of constitutional rights is in issue. There are, however,
in this case, weighty factors which, in my view, would have to be taken into
account in deciding whether such an injunction should be granted.
It
would appear from the statement of the facts in Attorney General v X that, at
the stage when her parents sought an abortion, the girl was -- at the most --
eight weeks pregnant. Would different considerations arise in a similar case if
the foetus had developed to a point where it was viable outside the womb? Can
the more expansive interpretation of "life" adopted in Bourne's case ever be
adopted at any stage of a pregnancy? What qualifications, if any, are required
of a person before he or she determines that the risk to the mother's life is
of such a nature as to justify the giving of information? On what evidence is
he or she entitled to reach such a conclusion?
In
the Attorney General v X, McCarthy J said:-
"In
the context of the eight years that have passed since the (Eighth Amendment)
was adopted and the two years since Grogan's Case [the present case] the
failure by the legislature to enact the appropriate legislation is no longer
just unfortunate: it is inexcusable. What are pregnant women to do? What are
the parents of a pregnant girl under age to do? What are the medical profession
to do? They have no guidelines save what may be gleaned from the judgments in
this case. What additional considerations are there? Is the victim of rape,
statutory or otherwise, or the victim of incest, finding herself pregnant, to
be assessed in a manner different from others? The amendment, born of public
disquiet, historically divisive of our people, guaranteeing in its laws to
respect and by its laws to defend the right to life of the unborn, remains bare
of legislative direction . . .
"Since
the amendment contemplates lawful abortion, how may the State still, as far as
practicable, vindicate the right to life of the unborn? Legislation may be both
negative and positive; negative, in prohibiting absolutely or at a given time,
or without meeting stringent tests; positive by requiring positive action. The
State may fulfil its role by providing necessary agencies to help, to counsel,
to encourage, to comfort, to plan for the pregnant woman, the pregnant girl or
her family. It is not for the courts to programme society; that is partly at
least, the role of the legislature. The courts are not equipped to regulate
these procedures."
The
1995 Act provides no answers to any of these question and was clearly not
designed so to do. Almost five years have elapsed since that judgment was
delivered and successive governments have failed to introduce any form of
statutory regime. It is not the function of this court to supplement this
governmental and legislative inertia by the making of orders so uncertain and
fraught with difficulty.
Apart
altogether from the reasons which I have already given, there are other matters
to be taken into account in deciding whether the declaration and injunctions
granted by the High Court in this case should be upheld. In Attorney General v
X, differing views were expressed by the members of the court as to whether the
right to travel of the Plaintiff was abridged to an unconstitutional extent by
the injunction granted by the High Court in that case. Since those observations
were obiter (as was made clear by the learned Chief Justice in that case), it
is open to this court without any departure from stare decisis to choose
between the differing views. I would prefer the view of McCarthy J and
O'Flaherty J that it did impermissibly violate the Plaintiffs right to travel.
That
right, as found by Finlay P (as he then was) in the State (M) v Attorney
General [1979] IR 73 is one of the hallmarks of a democratic society which
distinguish our State and others from totalitarian regimes. While it has been
pointed out by the learned editors of Kelly on The Irish Constitution (3rd Edtn
at pp 809/10) that the word "freedom" rather than "right" is used in the
Fourteenth Amendment, arguably implying that there was no corresponding duty on
the State to protect that freedom, I would take the view that a harmonious
interpretation of the Constitution would suggest that such a construction was
not open to the courts. Whether it be a right or a freedom, however, it can be
exercised for a huge range of purposes. One such purpose is availing of
abortion facilities in other States applying different laws. If that decision
results in the termination of a pregnancy in circumstances where the Irish
Constitution would have outlawed the procedure in question, it follows that the
right to life of the unborn acknowledged by the Constitution is not protected
by our laws in that particular case. That, however, is a necessary consequence
of living in a democratic society. It follows inevitably that to deny the woman
concerned the information which enables her to exercise that decision is to
violate her constitutional freedom to travel and is, in addition, a clear
encroachment on the right of people to communicate and receive information, an
aspect of freedom of expression which is also of fundamental importance in
every democratic society.
If
one were to reach the conclusion that the granting of the injunction in the
High Court was correct, it would be necessary to consider whether the
injunction should nevertheless be discharged, having regard to the provisions
of the Fourteenth Amendment and the 1995 Act. That, on the view I take of this
case, is a matter which does not now arise and was not, in any, event fully
argued. I accordingly express no opinion on that matter.
I
would allow the appeal.