Supreme Court of Ireland Decisions

1. This is the decision of the Supreme Court on the reference to it by the President of the Regulation of Information (Services Outside the State for Termination of Pregnancies) Bill 1995, (hereinafter referred to as the Bill) pronounced pursuant to Article 26.2.1 of the Constitution.

The Reference

By order given under her hand and seal on the 18 March 1995 the President, Mary Robinson, in pursuance of the provisions of Article 26 of the Constitution after consultation with the Council of State referred the Bill to the Supreme Court for a decision on the question as to whether the Bill or any provision or provisions thereof is or are repugnant to the Constitution or to any provision thereof.

The long title of the Bill states that it is:-

"An act to prescribe the conditions subject to which certain information relating to services lawfully available outside the State for the termination of pregnancies and to persons who provide such services may be given to individual women or the general public, to amend the Indecent Advertisements Act 1889 and the Censorship of Publications Acts 1929 to 1967 and to provide for related matters."

Proceedings on the Reference

Having regard to the nature of the Bill and to the possibility of the challenge to its constitutionality being based on diametrically opposed viewpoints, namely, those based on or with particular reference to the right to life of the unborn and those based on or with particular reference to the right to life of the mother, and the Court's duty in testing the provisions thereof to examine it in as wide a manner as possible, the Court considered it desirable to assign two teams of counsel and solicitors to argue against the constitutionality of the Bill, one set of arguments to be based on the right to life of the unborn and one set on the right to life of the mother, neither team however to be limited in the making of any arguments against the constitutionality of the Bill or any provision thereof.

Prior to the oral hearing, counsel assigned by the Court in pursuance of Article 26 of the Constitution presented in writing heads of the argument intended to be made by them and submissions of law in support of such argument. These were replied to in writing by and on behalf of the Attorney General together with submissions of law on his behalf.

The oral hearing then took place before the Court on the 4, 5, 6 and 7 of April 1995.

Summary of main provisions of the Bill

At this stage it is desirable to emphasise that both the Fourteenth Amendment to the Constitution and the Bill are concerned solely with the freedom to obtain or make available information. They do not purport to make lawful any act directly affecting the life of the unborn which would not have been lawful prior to the passing of the Fourteenth Amendment. They are exclusively concerned with the question of information and do not deal with the use which may be made of the information obtained. It does not address circumstances in which abortion may be legal either in this jurisdiction or outside the State.

The main provisions of the Bill may be summarised as follows:-

(1) The Bill applies to information, likely to be required by a woman for the purpose of availing herself of services provided outside the State for the termination of pregnancies being information which relates to such services and to the persons who provide them -- such information being defined in the Bill as Act information.

(2) Section 3 of the Bill provides that it shall not be unlawful to publish or procure the publication of, in any of the ways set out below, Act information relating to services which are lawfully available in a particular place or to persons providing them in a particular place

(i) if the information relates only to services which are lawfully available in that place, and to persons, who, in providing them are acting lawfully in that place;

(ii) the information and the method and manner of its publication are in compliance with the laws of that place;

(iii) the information is truthful and objective; and

(iv) does not advocate or promote and is not accompanied by any advocacy or promotion of the termination of pregnancy.

The ways referred to are:-

(a) orally at a meeting to which the public have access whether upon payment or free of charge,

(b) in a book, newspaper, journal, magazine, leaflet or pamphlet, or any other document,

(c) in a film or a recording (whether of sound or images or both),

(d) by means of radio or television, or

(e) by any other means to the public.

The provision of Act information is subject to the qualification set forth in Section 4 of the Bill.

(3) Section 4 of the Bill provides that it shall not be lawful to display a notice (including an advertisement) containing Act information in or at a place to which the public have access whether upon payment or free of charge or to distribute without solicitation by the recipients, a book, newspaper, journal, magazine, leaflet or pamphlet or any other document, or a film or a recording containing such information.

Consequently, it is not unlawful to publish or procure the publication of Act information to the public by any means, other than by a notice in a public place or in publications distributed without solicitation by recipients provided that the conditions set forth in Section 3 of the Bill are complied with.

(4) By virtue of the provisions of Section 3 of the Bill, if the information relates to services provided in a particular place or to persons providing them in a particular place and the information relates only to services which are lawfully available in that place and to persons who, in providing them, are acting lawfully in that place and the information and the method and manner of its publication are in compliance with the law of that place, and the information is truthful and objective and does not advocate or promote, and is not accompanied by any advocacy or promotion of, the termination of pregnancy, the publication of such information is not rendered unlawful by the act; neither is the sale or other distribution of such information rendered unlawful, subject of course to the provisions of Section 4 which render it unlawful to display a notice containing Act information in or at a place to which the public have access whether upon payment or free of charge, or to distribute without solicitation by the recipient, a book, newspaper, journal, magazine, leaflet or pamphlet or any other document, or a film or a recording containing act information.

(5) A person to whom Section 5 of the Bill applies is defined in Section 1(i) of the Bill as --

"a person who engages in, or holds himself, herself or itself out as engaging in, the activity of giving information, advice or counselling to individual members of the public in relation to pregnancy".

Such persons are subject to the restrictions contained in Sections 5, 6, 7 and 8 of the Bill.

The provisions of these Sections apply when such a person is requested by or on behalf of an individual woman who indicates or on whose behalf it is indicated that she is or may be pregnant to give information, advice or counselling in relation to her particular circumstances.

Section 5 provides that in such circumstances, it shall not be lawful to advocate or promote the termination of the pregnancy to the woman or any person on her behalf.

This Section also provides that it shall not be lawful to give Act information to the woman or anybody on her behalf unless

(i) the information and the method and manner of its publication are in compliance with the requirements of Par (i) and (ii) of Section 3(1)(a),

(ii) the information is given in a manner which does not advocate or promote the termination of pregnancy,

and

(a) at the same time, information (other than her in relation to her particular circumstances aforesaid, and

(b) the information, counselling and advice

(i) are truthful and objective,

(ii) fully inform the woman of all the courses open to her in relation to her particular circumstances, and

(iii) do not advocate or promote and are not accompanied by any advocacy or promotion of, the termination of pregnancy.

(6) Section 6 makes it unlawful for a person or body to whom Section 5 applies to give Act information if such person or body provides the services to which the Act information relates or has an interest in a body providing such services. No submission was made that this Section was unconstitutional. Section 7 makes it unlawful for a person to whom Section 5 applies:-

(1) To obtain directly or indirectly any financial or other benefit or advantage from any person who provides services outside the State or who has an interest in a body providing such services, or

(2) to obtain directly or indirectly from the woman concerned any financial benefit in respect of:

(a) the giving of Act information, or

(b) the availing by the woman of a service provided outside the State for the termination of pregnancy.

It was submitted by counsel on behalf of the mother that the section was unreasonably wide and could make the giving of information virtually impossible as anyone doing so might think they were at risk of breaking the law. The Court will deal with this submission when the other submissions made by counsel on behalf of the mother are being considered later in this judgment.

(7) Section 8(1) provides that --

"(1) it shall not be lawful for a person to whom Section 5 applies or the employer or principal of the person to make an appointment or any other arrangement for on behalf of a woman with a person who provides services outside the State for the termination of pregnancies."

Sub-section 2 provides that --

"Nothing in sub-section 1 shall be construed as prohibiting the giving to a woman by a person to whom Section 5 applies or the employer or principal of the person of any medical, surgical, clinical, social or other like records or notes relating to the woman in possession of the person or the employer or principal of the person or a copy or copies thereof in written form."

While Section 8(1) of the Bill provides as aforesaid, it only relates to persons or bodies to whom Section 5 applies and there is no similar provision with regard to any other person or body.

(8) Section 10 of the Bill provides that a person who contravenes Sections 3, 4, 5, 6, 7, 8 or 9 shall be guilty of an offence and liable on summary conviction to a fine not exceeding £1,500.

Section 9 of the Bill provides for the issue of search warrants by a judge of the District Court and the seizure of certain documents by members of the Garda Siochana if they believe on reasonable grounds that they may be required to be used in evidence in any proceedings for an offence under Section 10 of the Bill.

(9) In the Bill, "woman" is defined as "a female person" and "termination of pregnancies" means "intentional procurement of miscarriages of women who are pregnant".

It is clear from the aforesaid summary of the Bill that its purpose was, as stated in the long title thereto, "to prescribe the conditions subject to which certain information relating to services lawfully available outside the State for the termination of pregnancies and to persons who provide such services may be given to individual women or the general public and to provide for related matters".

The information to which the Bill relates is information likely to be required by a woman for the purpose of availing herself of services outside the State for the termination of pregnancies, relating to such services and the persons who provide them.

The information likely to be required by a woman for the purpose of availing herself of services outside the State for the termination of pregnancies includes information with regard to the identity and location and method of communication with a specified clinic or clinics for the purpose of termination of pregnancy.

The giving of such information, viz relating to the services and the persons who provide them, to a woman for the purpose of enabling her to avail of such services for the termination of pregnancy had been held by this Court in a number of cases, including The Attorney General v Open Door Counsellinq Limited and Anor [1988] IR 593 to be unlawful having regard to the provisions of Article 40, section 3 sub-section 3 of the Constitution, which at the time of such decisions, provided that:-

"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."

Were it not for the enactment and provisions of the Fourteenth Amendment to the Constitution, the provisions of the Bill in so far as it permitted the dissemination of such information would undoubtedly be repugnant to the Constitution.

The Fourteenth Amendment to the Constitution provided that:-

"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 Bill was passed by both Houses of the Oireachtas on the 14 March 1995 and purports to lay down the conditions subject to which the information relating to services lawfully available in another State may be given to an individual woman and to the General Public.

Presumption of constitutionality of the Bill

The Bill having been passed by both Houses of the Oireachtas, is entitled to the presumption that no provision thereof is repugnant to the Constitution.

This Court has held in many previous decisions viz the decision in the Reference of the Criminal Law (Jurisdiction) Bill 1975 [1977] IR 129, the decision on the Reference of the Electoral (Amendment) Bill 1983, [1984] IR at p 273, the decision in the Reference of the Adoption (No 2) Bill 1987 [1989] IR 656 p 660 and its decision in the Reference of the Matrimonial Home Bill 1993 [1994] 1 ILRM 241 that there must be applied by the Court to a Bill referred to it by the President pursuant to Article 26 a presumption of constitutionality.

The Court in its consideration of this Bill on this Reference applies the presumption of constitutionality and if and where relevant to the provisions of the Bill the principles by way of presumption of constitutionality laid down by it in the East Donegal Co-operative Livestock Marts Ltd v The Attorney General [1970] IR 317 which are summarised in the decision of this Court in the Reference pursuant to Article 26 of the Adoption (No 2) Bill 1987 [1989] IR 656 at p 661 as follows:

"(1) That it must be presumed that all proceedings, procedures, discretions and adjudications permitted or prescribed by the Bill are intended t6 be conducted in accordance with the principles of constitutional justice, and

(2) that as between two or more reasonable constructions of the terms of the Bill the construction that is in accordance with the provisions of the Constitution would prevail over any construction that is not in accordance with such provisions."

The issue which falls to be decided by the Court is the question whether it has been established that the provisions contained in the Bill or any of them is or are repugnant to the Constitution or to any provision thereof.

Constitutional Provisions Particularly Involved

Article 5 of the Constitution provides that:-

"Ireland is a sovereign, independent, democratic state."

Article 6 of the Constitution provides that:-

"1. All powers of government, legislative, executive and judicial, derive, under God, from the people, whose right it is to designate the rulers of the State and, in final appeal, to decide all questions of national policy, according to the requirements of the common good.

2. These powers of government are exercisable only by or on the authority of the organs of State established by this Constitution." Article 40.3 of the Constitution provides that:-

"1. The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.

2. The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.

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 (hereinafter referred to as the Eighth Amendment).

This sub-section shall not limit freedom to travel between the State and another State (hereinafter referred to as the Thirteenth Amendment).

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 (hereinafter referred to as the Fourteenth Amendment)."

Article 41 section 1 provides that:-

"1. The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.

2. The State, therefore, guarantees to protect the Family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State.

Article 41 section 2 provides that:-

"1. In particular, the State recognises that by her life within the home, woman gives to the State a support without which the common good cannot be achieved.

2. The State shall, therefore, endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home."

Position prior to the passing of the Fourteenth Amendment

The determination of the issue as to whether or not the Bill or any provision thereof is repugnant to the Constitution or any provisions thereof, of necessity involves an examination of the relevant provisions of the Constitution. Prior to the passing of the Eighth Amendment to the Constitution, the right to life of the unborn was not one of the personal rights acknowledged specifically by the Constitution. However the right to life of the unborn had been referred to and acknowledged by Walsh J in the course of his judgment in G v An Bord Uchtala [1980] IR 32 when he stated at page 69 of the Report:-

"Not only has the child born out of lawful wedlock the natural right to have its welfare and health guarded no less well than that of a child born in lawful wedlock, but a fortiori it has the right to life itself and the right to be guarded against all threats directed to its existence whether before or after birth. The child's natural rights spring primarily from the natural right of every individual to life, to be reared and educated, to liberty, to work, to rest and recreation, to the practice of religion, and to follow his or her conscience. The right to life necessarily implies the right to be born, the right to preserve and defend (and to have preserved and defended) that life, and the right to maintain that life at a proper human standard in matters of food, clothing and habitation. It lies not in the power of the parent who has the primary, natural rights and duties in respect of the child to exercise them in such a way as intentionally or by neglect to endanger the health or life of the child or to terminate its existence. The child's natural right to life and all that flows from that right are independent of any right of the parent as such.

He then repeated what he had said in McGee v The Attorney General [1974] IR 284 at p 312 of the report:-

'. . . 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'."

In the case of Norris v The Attorney General [1984] IR 36 McCarthy J stated at p 103 of the report that:-

"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."

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 Section 3 of Article 40 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", thereby acknowledging the right to life of the unborn.

The nature and extent of this right was considered in the case of the Attornev General (at the relation of The Society for the Protection of Unborn Children Ireland Limited), Plaintiff v Open Door Counselling Limited and Dublin Wellwoman Centre Limited, Defendants [1988] IR 593 (hereinafter referred to as the SPUC case).

The defendants in this case considered it essential to the service which they wished to provide that they should be at liberty to inform such women who wish 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 but it was declared by this Court:-

"That the activities of the Defendants, 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, section 3, sub-section 3 of the Constitution."

Having so declared, this Court then ordered:-

"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".

In the course of his judgment in that case, Finlay CJ having considered the admitted facts stated at Page 624 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. 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."

and at Page 625:-

"The performing of an abortion on a pregnant woman terminates the unborn life which she is carrying. Within the terms of Article 40, Section 3, sub-section 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 section 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 other members of this Court agreed with the judgment of Finlay CJ.

This case clearly decided that the giving of information with regard to the identity and location and method of communication with a specified clinic or clinics for the purpose of having an abortion or termination of a pregnancy was unlawful having regard to the provisions of Article 40 section 3 sub-section 3 of the Constitution even though such abortion or termination was to take place outside the State and would be lawfully available in another State.

This decision by this Court was based on its interpretation of the provisions of the Eighth Amendment to the Constitution, interpreted with particular emphasis on and with reference to the right to life of the unborn. As stated by Finlay CJ 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 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 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".

That this was so is exemplified by the following statement of Finlay CJ and the manner in which he identified the issue in that case:-

"I am satisfied, however, that the essential issues in this case do not 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 section 3, subsection 3 of the Constitution is the issue as to whether the defendants admitted activities were assisting pregnant women within the jurisdiction to travel outside that 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."

The effect of the decision of this Court in that case was further considered by this Court in the case of The Society for the Protection of Unborn Children (Ireland) Ltd v Stephen Grogan and Ors [1989] IR 753 and in the course of his judgment Finlay CJ stated at Page 764 that:-

"it was decided by this Court in AG (SPUC) v Open Door Counselling Ltd [1988] IR 593 at p 627 'that the activities of the defendants, 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 section 3, sub-section 3 of the Constitution'. This Court by the same order restrained the defendants in that action by permanent injunction from carrying on these activities. That decision clearly established that the actual activity which the defendants in this case are claiming and intending to pursue as of right is unlawful, having regard to the provisions of Article 40 section 3, sub-section 3 of the Constitution.

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 AG (SPUC) v Open Door Counselling [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.

This application for an interlocutory injunction, therefore, consists of an application to restrain an activity which has been clearly declared by this Court to be unconstitutional and therefore unlawful and which could assist and is intended to assist in the destruction of the right to life of an unborn child, a right acknowledged and protected under the Constitution. That constitutionality guaranteed right must be fully and effectively protected by the courts."

This decision reiterated the opinion of the Court that the activities of informing pregnant women of the identity and location and method of communication with a specified clinic or clinics for the purpose of obtaining a termination of pregnancy were unlawful having regard to the provisions of Article 40 section 3 sub-section 3 of the Constitution (the Eighth Amendment).

The provisions of the Eighth Amendment to the Constitution were further considered by this Court in The Attorney General v X and Others [1992] 1 IR 1 (hereinafter referred to as the x case) but with particular regard to "the intimate human problem of the right to life of the unborn and its relationship to the right of the mother of an unborn child to her life".

The events which gave rise to these latter proceedings were, in the words of Mr Justice Costello, painful and distressing and there is no need to refer to them in this judgment.

In this 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 SPUC case and which dealt with the equal right to life of the mother.

One of the issues which arose in The Attorney General v X [1992] 1 IR 1 concerned the mother's right to life which was acknowledged by the Eighth Amendment.

It was submitted on behalf of the Defendants in that case that although the Eighth Amendment required the Courts to defend and vindicate the life of the unborn, they were, in doing so, to have regard to the equal right to life of the mother.

In considering the terms of Article 40 section 3, sub-section 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 in this case, Finlay CJ stated:-

"I accept the submission made on behalf of the Attorney General, that the doctrine of the harmonious interpretation of the Constitution involves in this case a consideration of constitutional rights and obligations of the mother of the unborn child and the interrelation of those rights and obligations with the rights and obligations of other people and, of course, with the right to life of the unborn child as well.

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 or 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. 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 section 3, sub-section 3 of the Constitution."

The basis for the orders made in The Attorney General (at the relation of the Societv for the protection of Unborn Children Ireland Ltd) v Open Door Counselling Ltd & Anor [1988] IR 593 was that

"no right could constitutionally arise to obtain information the purpose of which was to defeat the constitutional right to life of the unborn child which right 'must be fully and effectively protected by the Courts'."

The X case however 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 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 SPUC case, viz information with regard to the identity and location of and method of communication with a specified clinic or specified clinics.

The effect of the decision of the Supreme Court and the judgments of the majority of the Court in the Attorney General v X and Ors [1992] 1 IR 1 case is that where there is a real and substantial risk to the life, as distinct from the health of the mother, and that risk can only be avoided by the termination of the mother's pregnancy, then such termination is permissible and not unlawful having regard to the provisions of Article 40 section 3, sub-section 3 of the Constitution.

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 mothers 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.

As stated by Finlay CJ in the course of his judgment in Attorney General v X [1992] 1 IR at Page 57 of the Report:-

"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 to the characteristics of a free society, I would be forced to conclude that if there was 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".

He further stated 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."

In the course of his judgment in the X case [1992] 1 IR Egan J stated at Page 92 of the Report that:-

"The right to travel can only effectively arise in reference to an intention to procure an unlawful abortion and must surely rank lower than the right to life of the unborn".

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 section 3, sub-section 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 X case, then neither the travel nor the giving or obtaining of information with regard thereto would be unlawful.

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.

This amendment provided that:-

"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 sub-section referred to in the said amendment was that which provided that:

"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."

For the reasons set forth in the course of this judgment, it is manifest that, were it not for the provisions of the Fourteenth Amendment to the Constitution, that many of the provisions of the Bill relating to the provision of information relating to services available in another State for the obtaining of abortions or termination of pregnancies, including the identity and locations of and method of communication with clinics where these services were available would be repugnant to the provisions of the Constitution despite the conditions imposed by the Bill on the availability and nature of the information to which the Bill related.

The giving of such information had been held to be unlawful having regard to the provisions of Article 40 section 3, sub-section 3 of the Constitution in that, in effect, it provided assistance in the destruction of the life of the unborn.

The provisions of the Fourteenth Amendment however provided that this sub-section should 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 purpose of this Amendment was to remove the inhibition placed on the granting of information with regard to these services relating to the termination of pregnancies, by the decisions of the Supreme Court based on the provisions of Article 40 section 3, sub-section 3 of thee Constitution.

The Fourteenth Amendment gave to the Oireachtas the power to lay down the conditions subject to which such information should be obtained or made available and expressly provided that the sub-section of the Constitution which acknowledged the right to life of the unborn should not limit freedom to obtain or make available in the State, such information.

Arguments were addressed to the Court that the provisions of the Fourteenth Amendment were self-executing and did not require any act of the Oireachtas to bring it into affect.

It is not necessary for this Court to decide in this reference whether the provisions of this Amendment were self-executing or only came into effect when such conditions were laid down by law.

The conditions laid down by law are contained in the Bill and the issue before this Court is whether the provisions of the Bill or any of them are or is repugnant to the provisions of the Constitution.

Before dealing with the issue as to whether the Bill or any provision or provisions thereof is or are repugnant to the Constitution or any provision thereof the effect of the Fourteenth Amendment to the Constitution must be determined and this necessarily involves the construction by this Court of its provisions.

The subject of this Amendment was 'information relating to services lawfully available in another State'.

The medical termination of pregnancy, performed in accordance with the law of the State in which it is carried out constitutes a service lawfully available in another State.

It also constitutes a service within the meaning of Article 60 of the Treaty of Rome.

The Court of Justice of the European Communities held in the Grogan case (Case C-159/90 [1991] ECRI -- 4685 (at 4739) that:-

"It must be held that termination of pregnancy, as lawfully practised in several Member States is a medical activity which is normally provided for remuneration and may be carried out as part of a professional activity . . . . Consequently the answer to the national courts first question must be that the medical termination of pregnancy, performed in accordance with the law of the State in which it is carried out, constitutes a service within the meaning of Article 60 of the Treaty".

There can be no doubt but that the provisions of the Fourteenth Amendment relate, inter alia, to and include information relating to medical termination of pregnancy, performed in accordance with the law of the State in which it is carried out.

The next matter for consideration is the nature of the information which may be obtained or made available in the State in relation to such services.

It was argued by Counsel assigned by the Court to present arguments against the constitutionality of the Bill based on the right to life of the unborn that the information permitted to be obtained or made available did not include information with regard to the identity, location and method of communication with specified clinics or a clinic where such services were lawfully available but was limited to information of a general nature relating to abortion.

He argued that it had already been held by this Court in the SPUC case [1988] IR 593 that the making available of such information constituted assistance in 'the destruction of the life of the unborn' and that the provisions of the Fourteenth Amendment should not be interpreted or construed so as to permit of the giving of such assistance.

He further argued that if the terms of the Amendment permitted the giving of such information, which amounted to assistance in the destruction of the life of the unborn, such amendment was inconsistent with the terms of the Eighth Amendment to the Constitution which acknowledged the right to life of the unborn, and that the principle of harmonious interpretation of the provisions of the Constitution did not permit of such interpretation.

It is not possible to construe the provisions of this Amendment in the manner so argued for as the terms of the Fourteenth Amendment specifically provided that the Eighth Amendment should not limit the freedom therein referred to.

They deal with 'information relating to services lawfully available in another State'. Such information must include, and was intended to include, information with regard to the nature of the services, where and by whom they are provided and all information in relation thereto including the identity, location and method of communication with specified clinics or a specified clinic where such services are lawfully provided.

As the provision of such information would constitute assistance in the destruction of the life of the unborn; it was further argued by Counsel for the unborn that

(i) any provision in the Constitution or in any legislation which would permit or render lawful the giving or obtaining of such information was contrary to the natural law right to life of the unborn which right is acknowledged by the Eighth Amendment to the Constitution;

(ii) that the natural law is the foundation upon which the Constitution was built and ranks superior to the Constitution;

(iii) that no provision of the Constitution or of any Act enacted by the Legislature or any judicial interpretation thereof can be contrary to Natural Law, and if it is, cannot be enforced.

These arguments raise the question of the role of the natural law in the development of constitutional jurisprudence with regard to the identification 'of the personal rights of the citizen' referred to in Article 40 section 3 sub-section 1 of the Constitution and the guarantee therein set forth on the part of the State to respect, and as far as practicable, by its laws to defend and vindicate such rights.

It is fundamental to this argument that, what is described as 'the natural law' is the fundamental law of this State and as such is antecedent and superior to all positive law, including the Constitution and that it is impermissible for the People to exercise the power of amendment of the Constitution by way of variation, addition or repeal, as permitted by Article 46 of the Constitution unless such amendment is compatible with the natural law and existing provisions of the Constitution and if they purport to do so, such amendment had no effect.

The Court does not accept this argument.

By virtue of the provisions of Article 5 of the constitution, Ireland is a sovereign, independent, democratic State.

By virtue of the provisions of Article 6, all powers of Government, legislative, executive and judicial, derive, under God, from the people, whose right it is to designate the rulers of the State, and, in final appeal to decide all questions of national policy, according to the requirement of the common good.

The powers of Government therein referred to are exercisable only by or on behalf of the organs of State established by the Constitution and are exercisable only in accordance with the provisions thereof.

In the course of his judgment in Byrne v Ireland [1972] IR p 241 Budd J stated that:-

"It is the people who are paramount . . . The State is not internally Sovereign but, in internal affairs, subject to the constitution, which limits, confines and restricts its powers."

The Constitution limits, confines and restricts the powers of the State and the organs of State established by the Constitution.

Though Article 15, section 1, sub-section 1 of the constitution provides that 'the sole and exclusive powers of making laws for the State is hereby vested in the Oireachtas' these powers are restricted by the provisions of Article 15 section 4 which provide that:-

"1. The Oireachtas shall not enact any law which is in any respect repugnant to the Constitution or any provision thereof.

2. Every law enacted by the Oireachtas which is in any respect repugnant to this Constitution or to any provision thereof, shall, but to the extent only of such repugnancy, be invalid."

These provisions which prohibit the Oireachtas from enacting any law which is in any respect repugnant to the Constitution or any provision thereof clearly illustrate the supremacy of the Constitution in so far as the law making powers of the Oireachtas is concerned.

In addition Article 26 section 1 of the Constitution provides that:-

"The President may, after consultation with the Council of State, refer any Bill to which this Article applies to the Supreme Court for a decision on the question as to whether such Bill or any specified provisions or provision of such Bill is or are repugnant to this Constitution or any provision thereof."

Article 26 section 3, sub-section 1 provides that:-

"In every case in which the Supreme Court decides that any provision of a Bill the subject of a reference to the Supreme Court under this Article is repugnant to this Constitution or to any provision thereof, the President shall decline to sign such Bill."

Again this provision clearly illustrates the supremacy of the Constitution. The decision upon which the President, after consultation with the Council of State, was entitled to seek from this Court was whether the Bill or any provision thereof was repugnant to the Constitution or any provision thereof.

Article 28 section 2 of the Constitution provides that:-

"The executive power of the State shall, subject to the provisions of this Constitution be exercised by or on the authority of the Government".

The judicial organ of the State is also subject to the provisions of the Constitution and the law.

Article 34 section 1 of the Constitution provides that:-

"Justice shall be administered in Courts established by law by judges appointed in the manner provided by this Constitution . . ."

Article 35 section 2 of the Constitution provides that:-

"All judges shall be independent in the exercise of their judicial functions and subject only to this Constitution and the law."

Before entering his or her duties as a judge every person appointed a judge under the Constitution is required to make and subscribe a declaration to, inter alia,

"uphold the Constitution and the law".

These provisions of the Constitution clearly indicate and establish that all the organs of the State, the Oireachtas, the Executive and Judiciary are subject to the Constitution and the law.

In addition to administering justice in courts established by law, it is the responsibility of Judges of the High Court and the Supreme Court to interpret the Constitution and apply the provisions thereof.

In the course of his judgment in McGee v The Attorney General [1974] IR 284 Walsh J stated:-

"In this country, it falls finally upon the judges to interpret the Constitution and in doing so to determine, where necessary, the rights which are superior or antecedent to positive law and which are imprescriptible or inalienable."

These rights are referred to in the various articles of the Constitution contained in the Sections thereof which is entitled "Fundamental Rights" and includes Article 40-44 inclusive of the Constitution.

These articles deal with Personal Rights, the Family, Education, Private Property and Religion.

In the course of its interpretation of these Articles and in particular Article 40 of the Constitution, this Court, agreeing with the view expressed by Kenny J in the course of his judgment in the High Court in Ryan v Attorney General [1965] IR 294 p 312, held that the 'personal rights' mentioned in Article 40 section 3, sub-section 1 of the Constitution are not exhausted by the enumeration of 'life, person, good name and property rights' in Section 3.2 of the Constitution, which states:-

"The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen."

In delivering the judgment of the Court in Ryan's case [1965] IR 294 O Dalaigh CJ stated at Page 344-345 of the judgment that:-

"The Court agrees with Mr Justice Kenny that the 'personal rights' mentioned in Section 3.1 are not exhausted by the enumeration of 'life, person, good name and property rights' in Section 3.2 as is shown by the use of the words "in particular": nor by the more detached treatment of specific rights in the subsequent sections of the Article. To attempt to make a list of all the rights which may properly fall within the category of "personal rights" would be difficult and fortunately is unnecessary in this present case."

In the course of his judgment in McGee's case, Walsh J at page 318 stated:-

"While the Constitution speaks of certain rights being imprescriptible or inalienable, or being antecedent and superior to all positive law, it does not specify them. Echoing the words of O'Byrne J in Buckley and Others (Sinn Fein) v The Attorney General [1950] IR 67 I do not feel it necessary to enter upon an inquiry as to their extent or, indeed, as to their nature. It is sufficient for the court to examine and to search for the rights which may be discoverable in the particular case before the court in which these rights are invoked.

In a pluralist society such as ours, the Courts cannot as a matter of constitutional law be asked to choose between the differing views, where they exist, of experts on the interpretation by the different religious denominations of either the nature or extent of these natural rights as they are to be found in the natural law. The same considerations apply also to the question of ascertaining the nature and extent of the duties which flow from natural law; the Constitution speaks of one of them when it refers to the inalienable duty of parents to provide according to their means for the religious, moral, intellectual, physical and social education of their children: see section 1 of Article 42. In this country it falls finally upon the judges to interpret the Constitution and in doing so to determine, where necessary, the rights which are superior or antecedent to positive law or which are imprescriptible or inalienable. In the performance of this difficult duty there are certain guidelines laid down in the Constitution for the judge. The very structure and content of the Articles dealing with fundamental rights clearly indicate that justice is not subordinate to the law. In particular, the terms of section 3 of Article 40 expressly subordinate the law to justice. Both Aristotle and the Christian philosophers have regarded justice as the highest human virtue. The virtue of prudence was also esteemed by Aristotle as by the philosophers of the Christian world. But the great additional virtue introduced by Christianity was that of charity -- not the charity which consists of giving to the deserving, for that is justice, but the charity which is also called mercy. According to the preamble, the people gave themselves the Constitution to promote the common good with due observance of prudence, justice and charity so that the dignity and freedom of the individual might be assured. The judges must, therefore, as best they can from their training and their experience interpret these rights in accordance with their ideas of prudence, justice and charity. It is but natural that from time to time the prevailing ideas of these virtues may be conditioned by the passage of time: no interpretation of the Constitution is intended to be final for all time. It is given in the light of prevailing ideas and concepts."

In the course of his judgment in The State (Healy) v Donoghue [1976] IR 326 O'Higgins CJ stated as follows:

"The preamble to the Constitution records that the people seeking to promote the common good, with due observance of prudence, justice and charity, so that the dignity and freedom of the individual may be assured, true social order attained, the unity of our country restored and concord established with other nations, do hereby adopt, enact, and give to ourselves this Constitution.

In my view, this preamble makes it clear that rights given by the Constitution must be considered in accordance with concepts of prudence, justice and charity, which may gradually change or develop as society changes and develops and which fall to be interpreted from time to time in accordance with prevailing ideas. The preamble envisages a Constitution which can absorb or be adapted to such changes. In other words, the Constitution did not seek to impose for all time the ideas prevalent or accepted with regard to these virtues at the time of its enactment. Walsh J expressed this view very clearly in McGee v the Attorney General."

The principles set out in these two judgments were accepted by Finlay CJ in the course of his judgment in the case of The Attorney General v X [1992] 1 IR where he stated at Page 53 of the Report as follows:-

"I not only accept the principles set out in these two judgments as correct and appropriate principles which I must follow in interpreting the provisions of this sub-section of the Constitution but I find them particularly appropriate and illuminating in the interpretation of a sub-section of the Constitution which deals with the intimate human problem of the right of the unborn to life and its relationship to the right of the mother of an unborn child to her life."

It is clear from the passages from these judgments set forth herein that the Courts in interpreting the Constitution and in ascertaining and declaring what are the personal rights which are guaranteed by the Constitution and in determining, where necessary, the rights which are superior or antecedent to positive law or which are imprescriptible or inalienable, must act in accordance with the aforesaid guidelines as laid down in the Constitution and must interpret them in accordance with their ideas of prudence, justice and charity.

As stated by Walsh J in the course of his judgment in McGee's case [1974] IR 284 in the passage quoted herein:-

"In a pluralist society such as ours, the Courts cannot as a matter of constitutional law be asked to choose between the differing views, where they exist, of experts on the interpretation by the differing religious denominations of either the nature and extent of these natural rights as they are to be found in the natural law."

From a consideration of all the cases which recognised the existence of a personal right which was not specifically enumerated in the Constitution, it is manifest that the Court in each such case had satisfied itself that such personal right was one which could be reasonably implied from and was guaranteed by the provisions of the Constitution, interpreted in accordance with its ideas of prudence, justice and charity.

The Courts, as they were and are bound to, recognised the Constitution as the fundamental law of the State to which the organs of the State were subject and at no stage recognised the provisions of the natural law as superior to the Constitution.

The people were entitled to amend the Constitution in accordance with the provisions of Article 46 of the Constitution and the Constitution as so amended by the Fourteenth Amendment is the fundamental and supreme law of the State representing as it does the will of the people.

It was further argued by Counsel for the unborn that the case of the Attorney General v X [1992] 1 IR 1 was wrongly decided because --

(a) no argument was addressed to the Court on the question of the natural law,

(b) the Attorney General had wrongfully conceded that the provisions of the Eighth Amendment envisaged a lawful abortion taking place in the State.

(c) no medical evidence was adduced with regard to the question of the medical necessity for an abortion.

This submission was part of Counsel's general argument that the natural law was superior to the Constitution.

Having regard to the judgment and decision of this Court, which recognises and emphasises the supremacy of the Constitution, this Court is satisfied that in the consideration of the issues raised in that case and the conflicting constitutional rights involved, the proper principles were applied to the interpretation of the relevant provisions of the Constitution and in the determination of the issues raised therein and rejects this submission.

The Bill which has been referred by the President to this Court must be examined to enable this Court reach a decision as to whether it or any specified provision thereof, in the words of Article 26 section 1 of the Constitution, "is or are repugnant to this Constitution".

The Court is only concerned with the provisions of the Constitution.

The provisions of the Fourteenth Amendment give to the Oireachtas, which by virtue of the provisions of Article 15 section 2, sub-section 1 of the Constitution has vested in it the sole and exclusive power of making laws for the State, the power to lay down by law the conditions to which the obtaining or making available within the State information relating to services lawfully available in another State may be subject.

In determining the conditions to which the obtaining or making available of the information relating to services was subject, the Legislature, as one of the organs of State, was obliged to ensure that such conditions are in accordance with the provisions of the Constitution and in particular the provisions of Article 40 section 3, sub-section 3 which provide:-

"The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen."

Normally the legislature in determining such conditions would be obliged to have regard to the provisions of Article 40 section 3, sub-section 3 which "acknowledges the right to life of the unborn and which the State guarantees in its laws to respect, and as far as practicable, by its laws to defend and vindicate with due regard to the equal right to life of the mother".

The terms of the Fourteenth Amendment specifically provide that the freedom to obtain or make available in the State information relating to services lawfully available in another State shall not be limited by the provisions of Article 40 section 3, sub-section 3 of the Constitution.

In laying down in the Bill the conditions to which the obtaining or making available of this information is subject the Legislature is not entitled and is indeed prohibited from having regard to the provisions of Article 40 section 3, sub-section 3 for the purpose of limiting the freedom to obtain such information.

The provisions of the Fourteenth Amendment with regard to information relating to services lawfully available in another State is in direct conflict with the effect of the provisions of the Eighth Amendment in this regard as decided by this Court in the SPUC case [1988] IR 593 and subsequent cases.

The People in enacting this Amendment were aware of this conflict because they specifically decided that the freedom to obtain or make available such information should not be limited by the provisions of the Eighth Amendment.

In passing the Bill, the Oireachtas was essentially engaged in laying down the conditions subject to which such information should be obtained or made available and in doing so was 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.

Where such an exercise is involved the position is as enunciated by Finlay CJ in Tuohy v Courtney [1994] 2 ILRM 503, 514:-

"in a challenge to the constitutional validity of any statute in the enactment of which the Oireachtas has been engaged in such a balancing function, the role of the Courts is not to impose their view of the correct or desirable balance in substitution for the view of the legislature as displayed in their legislation but rather to determine from an objective stance whether the balance contained in the impugned legislation is so contrary to reason and fairness as to constitute an unjust attack, on some individuals constitutional rights. It is in accordance with these principles that the Court approaches the ultimate task of deciding upon the constitutional validity of those impugned statutory provisions."

A similar approach should be and has been adopted by the Court in the consideration of a Bill referred to the Supreme Court for a decision in accordance with the provisions of Article 26 of the Constitution.

Consequently, the approach to be taken by the Court in determining whether the provisions of the Bill or any provision thereof are or is repugnant to the Constitution or any provision thereof is not to impose its view on the terms of the Bill as passed by the Oireachtas but rather to determine from an objective stance whether the provisions of the Bill represent a fair and reasonable balancing by the Oireachtas of the various conflicting rights and is not so contrary to reason and fairness as to constitute an unjust attack on the constitutional rights of the unborn or on the constitutional rights of the mother or any other person or persons.

Right to life of the mother

Neither the provisions of the Fourteenth Amendment nor the provisions of the Bill purport to affect in any way any of the provisions of the Constitution other than in relation to information and the information, the giving and obtaining of which is authorised, is information relating to services lawfully available in another State and is such as is likely to be required by a woman for the purpose of availing herself of services outside the State for the termination of pregnancies and the information to be given relates to such services and/or to the persons who provide them.

It is fundamental to the provisions of the Bill that the information to be given does not advocate or promote the termination of pregnancy and is not accompanied by any advocacy or promotion of the termination of pregnancy.

This condition applies to information to which both Section 3 and Section 5 of the Bill relates.

In addition Section 8(1) of the Bill provides that:-

"It shall not be lawful for a person to whom Section 5 applies or the employer or principal of the person to make an appointment or any other arrangement for or on behalf of a woman with a person who provides services outside the State for the termination of pregnancies."

The condition that the information to be given does not advocate or promote the termination of pregnancy and the prohibition on any person, to whom Section 5 applies, making an appointment or other arrangement on behalf of a woman with a person who provides services outside the State for the termination of pregnancies are a clear indication of the intention of the Legislature to respect and as far as practicable to defend and vindicate the respect to life of the unborn, having regard to the equal right to life of the mother.

It was argued by Counsel assigned by the Court to oppose the Bill from the perspective of the mother that in the case of a mother in respect of whom there was a real and substantial risk to her life which could only be avoided by the termination of her pregnancy that in so providing and thereby depriving her of the right to have advice, as distinct from information, and assistance in the making of arrangements for the termination of her pregnancy, the Oireachtas was failing to respect and, as far as practicable, to defend and vindicate her right to life and in the case of a mother, in respect of whom there is not a real and substantial risk to her life, the restrictions contained in Section 8 amount to an unreasonable interference with her right to health in circumstances where she has already decided to avail of a termination of pregnancy and where the only practical issue remaining is as to the circumstances, in which she may avail of such service lawfully available outside the State.

As already stated, the effect of the decision of this Court and the judgments of the majority of the Court in The Attorney General v X and Ors [1992] 1 IR 1 case was that where there is a real and substantial risk to the life, as distinct from the health, of the mother and that risk can only be avoided by the termination of the mother's pregnancy then such termination is permissible and not unlawful having regard to the provisions of Article 40, section 3, sub-section 3 of the Constitution.

The position as therein set forth is unaltered by either the provisions of the Thirteenth or Fourteenth Amendment to the Constitution or of the Bill.

The provisions of the Thirteenth Amendment relate to travel, the Fourteenth Amendment relate to information and the Bill prescribes the conditions subject to which the information may be given to individual women or the general public.

The provisions of the Thirteenth Amendment or of the Fourteenth Amendment or of the Bill do not give a right to abortion or termination of pregnancy where none existed prior to their enactment.

The Bill merely deals with information relating to services lawfully available outside the State for the termination of pregnancies and the persons who provide such services.

The condition subject to which such information may be provided to a woman who indicates or on whose behalf it is indicated that she is or may be pregnant is that the person giving such information is

(i) not permitted to advocate or promote the termination of pregnancy to the woman or any person on her behalf;

(ii) not permitted to give the information unless it is given in a form and manner which do not advocate or promote the termination of pregnancy

and is only permitted to give information relating to services which are lawfully available in the other State and to persons, who in providing them are acting lawfully in that place if

(a) the information and the method and manner of its publication are in compliance with the law of that place, and

(b) the information is truthful and objective and does not advocate or promote, and is not accompanied by any advocacy or promotion of the termination of pregnancy.

At the same time information, counselling and advice must be given directly to the woman in relation to all the courses of action that are open to her in relation to her particular circumstances and such information, counselling and advice must not advocate or promote and must not be accompanied by any advocacy or promotion of, the termination of pregnancy.

Subject to such restrictions, all information relating to services lawfully available outside the State and the persons who provide them is available to her.

It was submitted that:-

(i) The prohibition on advocacy or promotion of termination of pregnancy prevents a doctor or adviser who bona fide forms the professional opinion that a termination of pregnancy is necessary to remove a real and substantial threat to life of such mother from giving proper advice.

(ii) The prohibition on the making of appointments or other arrangements on behalf of such a mother amounts to an unreasonable interference with the protection of the right to life of such mother.

(iii) The provisions of Section 8(ii) of the Bill which provides that:-

"Nothing in subsection (1) shall be construed as prohibiting the giving by a person to whom Section 5 applies or the employer of the person of any medical, surgical, clinical, social or other like records or notes relating to the woman in the possession of the person or the employer or principal of the person or a copy or copies thereof in written form"

are an insufficient protection of such rights placing as it does a serious barrier in what would otherwise be the normal communication between doctors treating a patient, and that the restriction on what would be in ordinary circumstances the normal communication between a doctor in the State and a doctor in a foreign jurisdiction amounts to an impermissible interference with her rights.

It was further submitted that in certain circumstances that a woman's life and/or health may be placed at serious risk in the event that a doctor is unable to send a letter referring her to another doctor for the purposes of having her pregnancy terminated.

This submission is based on a misinterpretation of the provisions of the Bill and in particular that of Section 8(1).

This section prohibits a doctor or any person to whom Section 5 of the Bill relates from making an appointment or any other arrangement for or on behalf of a woman with a person who provides services outside the State for the termination of pregnancies.

It does not preclude him once such appointment is made from communicating in the normal way with such other doctor with regard to the condition of his patient provided that such communication does not in any way advocate or promote and is not accompanied by any advocacy of the termination of pregnancy.

While a doctor is precluded by the terms of the Bill from advocating or promoting the termination of pregnancy, he is not in any way precluded from giving full information to a woman with regard to her state of health, the effect of the pregnancy thereon and the consequences to her health and life if the pregnancy continues and leaving to the mother the decision whether in all the circumstances the pregnancy should be terminated. The doctor is not in any way prohibited from giving to his pregnant patient all the information necessary to enable her to make an informed decision provided that he does not advocate or promote the termination of pregnancy.

In addition Section 8(2) does not prohibit or in any way prevent the giving to a woman any medical, surgical, clinical, social or other like records relating to her.

It was submitted also, as mentioned earlier in this judgment, that Section 7 was unreasonably wide and could make the giving of information almost impossible as anyone doing so might think that they were at risk of breaking the law. The Court does not accept this submission. All Section 7 does is to make it unlawful for a person to whom Section 5 applies to obtain directly or indirectly any financial or other benefit or advantage from any person who provides services outside the State or to obtain directly or indirectly from the woman concerned any financial benefit in respect of the giving of Act information or the availing by the woman of a service provided outside the State for the termination of pregnancies. It seems to the Court that the provisions of the section are quite clear so that a person to whom Section 5 applies would have no difficulty in understanding what it is that the Section makes unlawful.

The Court is also satisfied that there is no substance in the further contention put forward by counsel in relation to this section, namely, that it would create problems for women with medical insurance and also in regard to medical fees. There is no ground for suggesting that either of these matters would be affected by the section.

Having regard to the obligation on the Oireachtas to respect, and so far as practicable, to defend and vindicate the right to life of the unborn having regard to the equal right to life of the mother, the prohibition against the advocacy or promotion of the termination of pregnancy and the prohibition against any person to whom Section 5 of the Bill applies making an appointment or any other arrangement for and on behalf of a woman with a person who provides services outside the State for the termination of pregnancies does not constitute an unjust attack on the rights of the pregnant woman. These conditions represent a fair and reasonable balancing of the rights involved and consequently Sections 5 and 8 of the Bill are not repugnant to the Constitution on these grounds.

Right to life of unborn

The main argument made by Counsel appointed by the Court to argue against the constitutionality of the provisions of the Bill from the perspective of the unborn, viz that the natural law was superior to the Constitution and that no provision of the Constitution or of any Act enacted by the Oireachtas or any judicial interpretation thereof can be contrary to Natural Law has already been considered and rejected by this Court for the reasons set forth earlier in this judgment.

In addition they have argued that the provisions of the Bill are repugnant to the Constitution because

(i) By virtue of the definition of 'woman' contained in the Bill as meaning 'a female person', it is permitted to give the information to which it relates to a minor, who is or maybe pregnant, without creating any obligation to inform the parents of the minor of the fact that such information was sought and had been given;

(ii) a wife is entitled to seek and obtain such information, which would provide assistance in the procurement of a termination of pregnancy, without the knowledge and consent of her husband and father of the unborn child.

It was argued that the failure of the Oireachtas to require in the Bill that, where such information was sought and/or given, the parents of the minor should be so informed and in the case of a wife, the husband should be so informed, amounted to a failure by the Oireachtas to respect and so far as practicable to defend the constitutional rights of the parents, when the information is given to a minor, and of the husband, when the information is given to a wife.

The constitutional rights and obligations of parents with regard to the care and control of their children and the rights of a husband, as a member of a family, remain unaffected by the provisions of the Fourteenth Amendment and of the Bill. The question to be considered is whether the Bill infringes the rights of the parents of a minor or a husband by failing to contain a provision requiring that they or he be notified of the fact that the minor or the wife has sought and obtained the information to which the Bill relates.

This objection to the Bill relates to a situation where a woman, be she a minor or a wife, indicates or has indicated on her behalf, that she is or may be pregnant and requests from a person to whom Section 5 of the Bill applies, information, advice or counselling in relation to her particular circumstances, having regard to the fact that she is or may be pregnant.

In these circumstances the person giving the information is obliged by the provisions of Section 5 of the Bill to give, at the same time, information (other than information to which the Bill relates), counselling and advice directly to the woman in relation to all the courses of action which are open to her.

In the consideration of the Bill and any particular provision thereof, the Court should apply to such consideration the principles laid down by it in East Donegal Co-operative Livestock Mart Limited v Attorney General [1970] IR 317 which are summarised in the decision of this Court in the Adoption (No 2) Bill 1987 Reference which is reported in [1989] IR 656 as follows:-

"That it must be presumed that all proceedings, procedures, discretions and adjudications permitted or prescribed by the Bill are intended to be conducted in accordance with the principles of constitutional justice."

The Oireachtas was also entitled to make that presumption.

As stated by Walsh J in the course of the judgment in East Donegal Co-Operative v Attorney General [1970 IR] 317 at 341:-

"At the same time, however, the presumption of constitutionality carries with it not only the presumption that the constitutional interpretation or construction is the one intended by the Oireachtas but also that the Oireachtas intended that proceedings, procedures, discretions and adjudications which are permitted, provided for, or prescribed by an Act of the Oireachtas are to be conducted in accordance with the principles of constitutional justice. In such a case any departure from these principles would be restrained and corrected by the Courts."

Persons to whom Section 5 of the Bill applies are obliged to give information, counselling and advice directly to the woman in relation to all the courses of action which are open to her in relation to her particular circumstances and it must be presumed that in the giving of such information, counselling and advice, the person giving same will have regard to and give advice in accordance with the principles of constitutional justice and if there is any departure from these principles, such departure would be restrained and corrected by the Courts.

Constitutional justice requires that in the giving of such information, counselling and advice regard be had to the rights of persons likely to be affected by such information, counselling and advice.

Having regard to such presumption the fact that the Bill does not contain any provision requiring notification to parents of minors or to husbands of wives, requesting information to which the Bill relates, does not render it repugnant to the provisions of the Constitution by failing to respect and so far as practicable to defend and vindicate the constitutional rights of parents or husbands.

In such circumstances the Court considers that the provisions of Section 5 and Section 8(1) and (2) represent a fair and reasonable balancing of conflicting rights and are not so contrary to reason and fairness as to constitute an unjust attack on the constitutional rights of the unborn, of the mother or any other person.

Section 3 of the Bill sets forth the conditions under which information may be given to the public at large at meetings, in publications, in a film or recording, and by means of radio or television or by any other means to the public.

The conditions to which the giving of such information is subject are set forth in detail in Section 3 which has been summarised earlier in this judgment and it is unnecessary to set them forth in detail at this stage.

Again the Oireachtas has expressly provided that such information must not advocate or promote or be accompanied by any advocacy or promotion of, the termination of pregnancy.

The giving of information to the public is further restricted by the provisions of Section 4 of the Bill which provides that it shall not be lawful to display a notice (including an advertisement) containing information, to which the Bill applied, in or at a place to which the public have access whether upon payment or free of charge or to distribute without solicitation by the recipients a book, newspaper, journal, magazine, leaflet or pamphlet, or any other document, or a film or a recording (whether of sound or images or both) containing such information.

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.

It was further argued that the penalty fixed by the Oireachtas for contravention of the provisions of the Bill viz a fine not exceeding £1,500 was so inadequate as to amount to a failure by the Oireachtas to respect and as far as practicable to defend and vindicate the right to life of the unborn.

The question of the determination of the appropriate penalty for the commission of an offence created by statute is a matter purely for the Oireachtas and the adequacy or otherwise of any such penalty cannot be regarded by this Court as a ground for holding that the provision in regard to the creation of the offence and providing the penalty therefor is repugnant having regard to the provisions of the Constitution.

The Court has dealt in detail with the provisions and effects of Sections 3, 4, 5, 8 and 10 of the Bill and is not satisfied that any of them is repugnant to the Constitution or any provision thereof.

It was submitted by counsel on behalf of the unborn that the manner in which the phrase "termination of pregnancies" is defined in section 1 of the Bill does not cover all possible ways in which a pregnancy might be determined. The definition provides that it means the "intentional procurement of miscarriages of women who are pregnant". It was submitted that methods other than the intentional procurement of a miscarriage are currently in regular use for the termination of pregnancies, which cause the embryo to be absorbed and not aborted.

Since no evidence is received when the Court is considering a Bill referred to it under Article 26, it is not possible for the Court to make any finding as to the accuracy of the facts underlying this submission but even if they are accurate, that could not affect the constitutionality of the Bill. At most it would indicate a possible defect in the Bill, something which does not come within the ambit of what this Court has to consider.

The Court has considered all the remaining provisions of the Bill, whether arguments have been addressed to the Court with regard thereto or not, and is not satisfied that any of them is repugnant to the Constitution or to any provision thereof.

Conclusion

The decision of the Court therefore is that the Regulation of Information (Services outside the State for Termination of Pregnancies) Bill 1995, is not repugnant to the Constitution or to any provision thereof.

I certify this to be the judgment and decision of the Court.