Information (Termination of Pregnancies) Bill, 1995

• Jurisdiction: Ireland
• Judge: HamiltonC.J.
• Judgment Date: 12 May 1995
• Neutral Citation: [1995] IESC 9
• Date: 12 May 1995
• Docket Number: [S.C. No. 87 of 1995]
• Court: Supreme Court

[1995] IESC 9

THE SUPREME COURT

HAMILTON C.J.

O'FLAHERTY J.

EGAN J.

BLAYNEY J.

DENHAM J.

87/95

REGULATION OF INFORMATION (SERVICES OUTSIDE THE STATE FOR TERMINATION OF PREGNANCIES) BILL 1995

IN THE MATTER OF ARTICLE 26 OF THE CONSTITUTION AND INTHE MATTER OF THE REFERENCE TO THE COURT OF THE REGULATION OFINFORMATION (SERVICES OUTSIDE THE STATE FOR TERMINATION OF PREGNANCIES)BILL, 1995

Citations:

REGULATION OF INFORMATION (SERVICES OUTSIDE THE STATE FOR TERMINATION OF PREGNANCIES) BILL 1995 S6

CONSTITUTION ART 26.2.1

INDECENT ADVERTISEMENTS ACT 1889

CENSORSHIP OF PUBLICATIONS ACTS 1929 – 1967

FOURTEENTH AMENDMENT TO THE CONSTITUTION ACT 1992

REGULATION OF INFORMATION (SERVICES OUTSIDE THE STATE FOR TERMINATION OF PREGNANCIES) BILL 1995 S3

REGULATION OF INFORMATION (SERVICES OUTSIDE THE STATE FOR TERMINATION OF PREGNANCIES) BILL 1995 S4

REGULATION OF INFORMATION (SERVICES OUTSIDE THE STATE FOR TERMINATION OF PREGNANCIES) BILL 1995 S5

REGULATION OF INFORMATION (SERVICES OUTSIDE THE STATE FOR TERMINATION OF PREGNANCIES) BILL 1995 S1(i)

REGULATION OF INFORMATION (SERVICES OUTSIDE THE STATE FOR TERMINATION OF PREGNANCIES) BILL 1995 S7

REGULATION OF INFORMATION (SERVICES OUTSIDE THE STATE FOR TERMINATION OF PREGNANCIES) BILL 1995 S8

REGULATION OF INFORMATION (SERVICES OUTSIDE THE STATE FOR TERMINATION OF PREGNANCIES) BILL 1995 S3(1)(a)

REGULATION OF INFORMATION (SERVICES OUTSIDE THE STATE FOR TERMINATION OF PREGNANCIES) BILL 1995 S3(1)(a) PARA (i)

REGULATION OF INFORMATION (SERVICES OUTSIDE THE STATE FOR TERMINATION OF PREGNANCIES) BILL 1995 S3(1)(a) PARA (ii)

REGULATION OF INFORMATION (SERVICES OUTSIDE THE STATE FOR TERMINATION OF PREGNANCIES) BILL 1995 S10

REGULATION OF INFORMATION (SERVICES OUTSIDE THE STATE FOR TERMINATION OF PREGNANCIES) BILL 1995 S9

AG V OPEN DOOR COUNSELLING LTD 1988 IR 593

CRIMINAL LAW (JURISDICTION) BILL 1975, IN RE 1977 IR 129

ELECTORAL (AMDT) BILL 1983, IN RE 1984 IR 273

ADOPTION (NO 2) BILL 1987, IN RE 1989 IR 660

EAST DONEGAL CO-OPERATIVE LIVESTOCK MARTS LTD V AG 1970 IR 317

ADOPTION (NO 2) BILL 1987, IN RE 1989 IR 661

CONSTITUTION ART 5

CONSTITUTION ART 6

CONSTITUTION ART 40.3

EIGHTH AMENDMENT OF THE CONSTITUTION ACT 1982

THIRTEENTH AMENDMENT OF THE CONSTITUTION ACT 1992

CONSTITUTION ART 41.1

CONSTITUTION ART 41.2

G V BORD UCHTALA 1980 IR 32

MCGEE V AG 1974 IR 284

NORRIS V AG 1984 IR 36

SPUC, AG V OPEN DOOR COUNSELLING LTD 1988 IR 593

CONSTITUTION ART 40.6.1

SPUC V GROGAN 1989 IR 753

AG V X 1992 1 IR 1

TREATY OF ROME ART 60

SPUC V GROGAN 1991 ECR 4685

BYRNE V IRELAND 1972 IR 241

CONSTITUTION ART 15.1.1

CONSTITUTION ART 26.1

CONSTITUTION ART 26.3.1

CONSTITUTION ART 28.2

CONSTITUTION ART 34.1

CONSTITUTION ART 35.2

CONSTITUTION ART 40

CONSTITUTION ART 41

CONSTITUTION ART 42

CONSTITUTION ART 43

CONSTITUTION ART 44

RYAN V AG 1965 IR 312

HEALY, STATE V DONOGHUE 1976 IR 326

TUOHY V COURTNEY 1994 2 ILRM 503

CONSTITUTION ART 26

REGULATION OF INFORMATION (SERVICES OUTSIDE THE STATE FOR TERMINATION OF PREGNANCIES) BILL 1995 S8(1)

REGULATION OF INFORMATION (SERVICES OUTSIDE THE STATE FOR TERMINATION OF PREGNANCIES) BILL 1995 S8(2)

MATRIMONIAL HOME BILL 1993, IN RE 1994 1 IR 305

CONSTITUTION ART 40.3.3

BUCKLEY V AG 1950 IR 67

CONSTITUTION ART 42.1

CONSTITUTION ART 46

CONSTITUTION ART 15.4

CONSTITUTION ART 40.3.1

CONSTITUTION ART 40.3.2

CONSTITUTION ART 15.2.1

CONSTITUTION ART 40.3.3

Synopsis:

CONSTITUTION

Legislation

Bill - Repugnancy - Question - President - Powers - Reference of Bill to Supreme Court - Control of information concerning ser vices available abroad - Termination of pregnancies abroad - Control of dissemination of relevant information - Advocation and promotion of termination of pregnancy prohibited - Relevance of natural law in construing articles of the Constitution - Presumption that implementation of statute was intended to accord with constitutional justice - Inadequacy of penalty for breach of statute not a ground for repugnancy of enactment - Lacuna in Bill immaterial - Bill not repugnant to Constitution - Constitution of Ireland, 1937, Articles 5, 15, 26, 40, 47 - (87/95 - Supreme Court - 12/5/95) - [1995] 1 IR 1 - [1995] 2 ILRM 81

|Regulation of Information (Services outside the State for

Termination of Pregnancies) Bill, 1995|

CRIMINAL LAW

Offence

Penalty - Adequacy - Oireachtas - Function - Whether Bill repugnant to Constitution - Inadequacy of penalty not a ground for finding of repugnancy - (87/95 - Supreme Court - 12/5/95)1995 1 IR 1

|Regulation of Information (Services outside the State for Termination of Pregnancies) Bill, 1995|

NATURAL LAW

Relevance

Constitution - Provisions - Interpretation - State - Fundamental law - Provisions not subordinate to natural law - (87/95 - Supreme Court - 12/5/95) - [1995] 1 IR 1 - [1995] 2 ILRM 81

|Regulation of Information (Services outside the State for Termination of Pregnancies) Bill, 1995|

STATUTORY INTERPRETATION

Enactment

Terms - Implementation - Manner - Presumption - Compliance with constitutional justice - Adoption of fair procedures - Duties of pregnancy counsellor - (87/95 - Supreme Court - 12/5/95)1995 1 IR 1

|Regulation of Information (Services outside the State for Termination of Pregnancies) Bill, 1995|

WORDS AND PHRASES

"Natural justice"

Relevance - Constitution - Provisions - Interpretation - Provisions not subordinate to natural law - (87/95 - Supreme Court - 12/5/95) - [1995] 1 IR 1 - [1995] 2 ILRM 81

|Regulation of Information (Services outside the State for Termination of Pregnancies) Bill, 1995|

1 The Decision of the Court pronounced by HamiltonC.J.on the 12th day of May 1995

2 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 theConstitution.

The Reference

3 By order given under her hand and seal on the 18th day of March 1995 the President, Mary Robinson, in pursuance of the provisions of Article 26 of the Constitution after consultation with the Council ofState 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 provisionthereof.

4 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, 1929to 1967and to provide for related matters."

Proceedings on the Reference

5 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 amanner 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 consitutionality of the Bill or any provision thereof.

6 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 hisbehalf.

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

Summary of main provisions of the Bill

8 At this stage it is desirable to emphasise thatboth 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.

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

10 (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.

11 (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

12 (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;

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

14 (iii) the information is truthful and objective; and

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

16 The ways referred to are:-

17 (a)...