Attorney General (S.P.U.C.) v Open Door Counselling Ltd

• Jurisdiction: Ireland
• Judgment Date: 19 December 1986
• Neutral Citation: 1986 WJSC-HC 1783
• Date: 19 December 1986
• Court: High Court

AG SPUC v. OPEN COUNSELLING LTD

BETWEEN:

THE ATTORNEY GENERAL AT THE RELATION OF THE SOCIETY FORTHE PROTECTION OF UNBORN CHILDREN IRELAND LIMITED

Plaintiff

and

OPEN COUNSELLING LIMITED

AND

THE DUBLIN WELL-WOMAN CENTRE LIMITED

Defendants

1986 WJSC-HC 1783

1985 No. 5652 P.

THE HIGH COURT

Synopsis:

CONSTITUTION

Personal rights

Right to life - Human foetus - Abortion - Defendant counselled women within the State about availability of abortion abroad - Constitutional guarantee by the State to defend and vindicate, in its laws, the right to life of the unborn - Unlawful activities of defendant - Defendant counselled, in a non-directive manner, pregnant women within the State - Abortion or termination of pregnancy might be one of the options discussed in the course of the counselling - If the pregnant woman decided to consider the abortion option, the defendant would arrange for the woman to be referred to a medical clinic, approved by the defendant, abroad - The defendant normally charged the woman a fee for the services of the defendant - Abortions had been performed abroad on pregnant women who had received counselling from the defendant - Held that the court had the jurisdiction and the duty to enforce compliance with the provisions of the Constitution notwithstanding the lack of corresponding enactments of the Oireachtas giving effect to those provisions - Held that the defendant, by so counselling pregnant women, was assisting in a procedure which led, in many instances, to the termination of the development of a human foetus - Held that such activity of the defendant was in breach of the right to life acknowledged in Article 40.3.3 and unlawful, notwithstanding the fact that such termination might not be unlawful in the place where it occurred - Held that the plaintiff was entitled to an order prohibiting the defendant from counselling or assisting pregnant women within the State to obtain further advice on abortion or to obtain abortion - Articles 6, 15, 29, 38, 40 - (1985/5652 P - Hamilton P. - 19/12/86) - [1988] I.R. 593 - [1987] ILRM 477

|Attorney General v. Open Counselling Ltd.|

PRACTICE

Parties

Summons - Amendment - Action instituted by company - Plenary summons claiming order restraining alleged unlawful activity - Matter of public interest - Amendment of summons and pleadings - Attorney General substituted as plaintiff suing at the relation of former plaintiff - ~Locus standi~ - (1985/5652 P - Hamilton P. - 19/12/86) - [1988] I.R. 593 - [1987] ILRM 477

|Attorney General v. Open Counselling Ltd.|

RELATOR ACTION

Procedure

Summons - Amendment - Action instituted by company - Plenary summons claiming order restraining alleged unlawful activity - Matter of public interest - Amendment of summons and pleadings - Attorney General substituted as plaintiff suing at the relation of former plaintiff - ~Locus standi~ - (1985/5652 P - Hamilton P. - 19/12/86) - [1988] I.R. 593 - [1987] ILRM 477

|Attorney General v. Open Counselling Ltd.|

Citations:

ABORTION ACT 1967 S1(1)

ABORTION ACT 1967 S1(2)

ABORTION ACT 1967 S1(a)

ABORTION ACT 1967 S1(b)

ABORTION ACT 1967 S5(1)

ABORTION ACT 1967 S5(2)

AG V ABLE 1984 1 AER 277, 1984 QB 795, 1983 3 WLR 845

AG V LOGAN 1891 2 QB 100

AG'S REFERENCE (NO 1/1975) 1975 2 AER 684, 1976 NI 169

BAIL BONDS ACT 1803

BYRNE V IRELAND 1972 IR 241

C DIR 73/148/EEC

CALDWELL V PAGHAN HARBOUR RECLAMATION CO 1876 2 CH 221 45 LJ CH 796

CONSTITUTION ART 15.2

CONSTITUTION ART 29.4.3

CONSTITUTION ART 38.1

CONSTITUTION ART 40.3.1

CONSTITUTION ART 40.3.2

CONSTITUTION ART 40.3.3

CONSTITUTION ART 6.1

CRIMINAL LAW (JURISDICTION) ACT 1976

DPP V SHAW 1962 AC 220

EDUCATIONAL CO OF IRELAND LTD V FITZPATRICK 1961 IR 345

EIGHTH AMDT TO THE CONSTITUTION

FERGUSON V WEAVING 1951 1 KB 814

G V BORD UCHTALA 1980 IR 32, 113 ILTR 25

HEALTH (FAMILY PLANNING) ACT 1979

HEALTH (FAMILY PLANNING) ACT 1979 S10

INFANT LIFE (PRESERVATION) ACT 1929 S1(1)

KNULLER LTD V DPP 1972 2 AER 899

MAGEE V AG 1974 IR 284

MAYO-PERROTT V MAYO-PERROTT 1958 IR 336

MEADS CASE UNREP SUPREME 26.07.72

MESKELL V CIE 1973 IR 121

MOORE V AG 1930 IR 495

NORRIS V AG 1984 IR 36

OFFENCES AGAINST THE PERSON ACT 1839

OFFENCES AGAINST THE PERSON ACT 1861

OFFENCES AGAINST THE PERSON ACT 1861 S58

OFFENCES AGAINST THE PERSON ACT 1861 S59

PATON V BRITISH ADVISORY SERVICES TRUSTEES 1979 1 QB 277

R V BOURNE 1939 1 KB 691

SMITH & HOGAN CRIMINAL LAW 3ED P275

1 Judgment of the President of the High Court delivered on the19th day of December 1986

The right to life of the unborn.

2 The right to life of the unborn has always been recognised by Irishlaw.

3 It has been recognised at common law; by statute law; as one of the unenumerated personal rights which the State guaranteed by its laws to respect, and, as far as practicable, to defend and vindicate and specifically acknowledged by the provisions of the Eighth Amendment to the Constitution.

4 Abortion is an interference with and a destruction of the right to life of an unborn infant in the mother's womb and as such is an offence contrary to Irish law. Originally, it was an offence contrary to the common law.

5 The common law misdemeanour of abortion applied however only after the child had quickened in the womb.

6 The statute, (43 George III, Chapter 58) of 1803 enacted that it should be a felony punishable by death to administer poison with intent to procure the miscarriage of a woman quick with child and a felony punishable with imprisonment or transportation for fourteen years to administer poison with a like intent to a woman who was not proved to be quick with child.

7 As stated in the Third Edition of Smith and Hogan Criminal Law Page 275, the distinction between quick and non-quick women gave rise to complications and this distinction disappeared in the re-enactment of the law by the Offences Against the Person Act, 1839 which established substantially the law in its present form.

8 The current statute applicable is the Offences Against the Person Act,1861.

9 Section 58 of this Act 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 an offence and being convicted thereof shall be liable to imprisonment forlife."

10 Section 59 of the said 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 fiveyears."

11 The Health (Family Planning) Act, 1979reaffirmed the acceptance by the Oireachtas of Section 58 and 59 of the Offences Against the Person Act, 1861 as setting forth the law of abortion in this jurisdiction.

12 Section 10 of the said Act provides that:-

"Nothing in this Act shall be construed as authorising -"

(a) the procuring of abortion,

(b) the doing of any other thing, the doing of which is prohibited by Sections 58 or 59 of the Offences Against the Person Act, 1861 (which Sections prohibit the administering of drugs or the use of any instruments to procure abortion or the supplying of drugs or instruments to procure abortion) or

(c) the sale, importation into the State, manufacture, advertising or display of abortifacients."

13 Sections 58 and 59 of the Offences Against the Person Act, 1861 protected and protect the foetus in the womb and having regard to the omission of the words "Quick with child" which were contained in the 1803 Statute herein before referred to, that protection dates from conception.

14 Consequently, the right to life of the foetus, the unborn, is afforded statutory protection from the date of its conception.

15 Prior to the enactment of the Eighth Amendment to the Constitution the right to life of the unborn had been referred to and acknowledgedby Mr. Justice Walsh in the course of his judgment in G. .v. An BordUchtala ( 1980 I.R. Page 32) when he stated at Page 69 of theReport;-

"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 conscious. 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."

16 He then repeated what he had said in Magee's case ( 1974 I.R.) at Page 312 of the Report:-

"Any action on the part of either the husband and wife or the State to limit family sizes by...