S.P.U.C. v Grogan (No. 4)

• Jurisdiction: Ireland
• Judgment Date: 01 January 1994
• Date: 01 January 1994
• Docket Number: [1989 No. 11056P]
• Court: High Court

S.P.U.C. v. Grogan (No. 4)

The Society for the Protection of Unborn Children (Ireland) Limited

Plaintiff

and

Stephen Grogan and Others, Defendants (No. 4)

[1989 No. 11056P]

High Court

Injunction - Permanent injunction - Breach of interlocutory injunction - Restraining publication and distribution of information in relation to identity and location of and method of communication with specified abortion clinics - Whether injunction an interference with right to travel abroad to avail of services lawfully available abroad - Equality - Public policy - Treaty - Solemn declaration in relation thereto - Date of entry into force - Appropriate remedy - European Economic Community Treaty, 1957, article 177 - Treaty on European Union, 1992, article R - Constitution of Ireland, 1937, Article 40, s. 3, sub-s. 3 and Article 41.

European Communities - Right to travel - Right to provide services - Right to provide information in relation to services lawfully available in another Member State - Abortion - Whether lawful to provide information in relation to identity and location of, and method of communication with, abortion clinics in another Member State - Involvement of clinics in the distribution of the information - European Economic Treaty, 1957, articles 56 and 59 to 66 - Constitution of Ireland, 1937, Article 40, s. 3, sub-s. 3.

Article 40, s. 3, sub-s. 3 of the Constitution of Ireland, 1937, as inserted by the Eighth Amendment to the Constitution, provides:—

"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."

In Attorney General (S.P.U.C.) v. Open Door Counselling Ltd. [1988] I.R. 593 it was held by the Supreme Court that to assist pregnant women to travel abroad to obtain abortions by, inter alia, informing them of the identity and location of, and method of communication with, a specific clinic or clinics where abortions were performed, was prohibited under Article 40, s. 3, sub-s. 3 of the Constitution.

The plaintiff was a company limited by guarantee with the object of protecting the life of the unborn child. The first to fourteenth defendants were officers of students' associations which published and distributed to students certain documents. These documents contained information about the identity and location of, and the method of communication with, specified abortion clinics in the United Kingdom.

On the 9th October, 1989, the plaintiff applied to the High Court for an interlocutory injunction restraining the defendants, their servants or agents, or anyone having knowledge of the said order from printing, publishing or distributing or assisting in the printing, publication or distribution of any publication produced under the aegis of such persons which contained information calculated to inform persons (including pregnant women) of the identity and location of, and the method of communication with, a specified clinic or clinics where abortions were performed. At the end of the hearing the High Court referred certain questions to the European Court of Justice pursuant to Article 177 of the Treaty of Rome, and made no order in relation to the application for an interlocutory injunction pending the determination of the Court of Justice. On appeal by the plaintiff the Supreme Court granted the injunction, but did not overturn the decision of the High Court to refer the questions to the European court. (Those proceedings are reported at [1989] I.R. 753.)

The European Court of Justice gave judgment on the 4th October, 1991. It ruled (see [1991] E.C.R. 4685 at p. 4742 of the report):—

"1. 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.

2. It is not contrary to Community law for a Member State in which medical termination of pregnancy is forbidden to prohibit students' associations from distributing information about the identity and location of clinics in another Member State where voluntary termination of pregnancy is lawfully carried out and the means of communicating with those clinics, where the clinics in question have no involvement in the distribution of the said information."

Following this determination the plaintiff applied to the High Court for a permanent injunction restraining the activities complained of At the hearing it was not in issue that the defendants had continued to distribute the information notwithstanding the interlocutory injunction, and that the abortion clinics specified in the publications had no involvement in these activities.

In the High Court it was submitted on behalf of the defendants, first, that pregnant women within the State had a right pursuant to Article 60 of the Treaty of Rome to travel abroad to avail of services lawfully available in other Member States of the European Community and that there was a collateral right to receive information in relation to such services. Secondly, it was submitted that women who had obtained abortions abroad were deprived of post-operative medical treatment, and that the defendants, in circulating the information complained of, were addressing this problem in a practical manner. Thirdly, it was submitted that the State was failing to vindicate the defendants' right to equality before the law guaranteed in Article 40, s. 1 of the Constitution of Ireland, 1937, insofar as the defendants, who had no economic links with the clinics referred to in the publications in issue, were receiving less favourable treatment than the publishers of certain advertisements, who received payment in relation thereto. Fourthly, it was submitted that abortion was lawful within the State where it was established as a matter of probability that there was a real and substantial risk to the life, as opposed to the health, of the mother which could only be avoided by the termination of her pregnancy. It was permissible to inform such persons of the identity and location of clinics where abortions were performed and it was submitted that the defendants' activities were, in consequence, lawful. Fifthly, it was submitted that if the plaintiff's case was made out, a permanent injunction should be denied on the grounds that the plaintiff had never sought to have the defendants committed for contempt of court for their failure to obey the order of the Supreme Court. Finally, it was submitted that a declaration of public policy was to be found in the solemn declaration of the High Contracting Parties to the Treaty on European Union signed at Guimaraes, Portugal, on the 1st May, 1992, and that in determining the issues before it the court should have regard, not to other statements of public policy, but to the solemn declaration.

Held by Morris J., in granting a permanent injunction, 1, that under Article 29, s. 4, sub-s. 3 of the Constitution of Ireland, 1937, Article 177 of the Treaty of Rome was part of the domestic law of the State, and that rulings of the European Court of Justice made on foot of a reference pursuant to that Article were binding upon the courts of Ireland.

Murphy v. Bord Telecom Éireann éireann [1989] I.L.R.M. 53 and Crotty v. An Taoiseach[1987] I.R. 736 applied.

2. That pregnant women who travelled to the United Kingdom for the purposes of obtaining abortions were travelling to avail of a service within the meaning of Article 60 of the Treaty of Rome. However, the clinics referred to in the information published by the defendants had no involvement, either financial or otherwise, in the...