In the matter of Article 26 of the Constitution and in the matter of the Regulation of Information (Services out-side the State for Termination of Pregnancies) Bill, 1995
In re Article 26 and the Regulation of Information (Services outside the State for the Termination of Pregnancies) Bill 1995 [1995] 1 IR 1 was a decision of the Supreme Court of Ireland after a referral by PresidentMary Robinson under Article 26 of the Constitution of Ireland. This is a procedure whereby the constitutionality of a bill is considered by the Supreme Court before it is signed into law, similar to the concept of a facial challenge in the United States. If the Court finds that it is constitutional, it may not later be challenged after its enactment.
The Supreme Court ultimately found that the Regulation of Information (Services outside the State for the Termination of Pregnancies) Act 1995 was constitutional, and decisively rejected the argument that natural law supersede positive law in the Constitution of Ireland.
In a number of cases, the Supreme Court had held that this provision of the Constitution prohibited information within the state on the availability of abortion services outside of the state. In AG (SPUC) v Open Door Counselling Ltd. (1988), the courts injunction restraining two counseling agencies from assisting women to travel abroad to obtain abortions or informing them of the methods of communications with such clinics, and in SPUC v Grogan (1989), the courts granted an injunction restraining three students' unions from distributing information in relation to abortion available outside the state.
After this amendment, Article 40.3.3° read in full as follows:
The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.
This subsection shall not limit freedom to travel between the State and another state.
This subsection shall not limit freedom to obtain or make available, in the State, subject to such conditions as may be laid down by law, information relating to services lawfully available in another state.
The Oireachtas subsequently passed the Regulation of Information (Services outside the State for the Termination of Pregnancies) Act 1995. After convening the Council of State, President Mary Robinson referred the Act to the Supreme Court.
The Fourteenth Amendment was also repealed by the Thirty-sixth Amendment in 2018.
Argument and Decision
Under Article 26.2.1°, the Supreme Court assigns counsel to argue against the bill's constitutionality; in this instance, counsel was assigned both to argue on the basis of the right to life of the unborn (Peter Kelly, SC, with Ralph Sutton, SC, and Mary Irvine) and to argue on the basis of the right to life of the mother (Frank Clarke, SC, with Inge Clissman, SC, and Fidelma Macken); the Attorney GeneralDermot Gleeson, SC, with Peter Shanley SC, Donal O'Donnell, Gerard Hogan and Bláthna Ruane, defended the bill's constitutionality.
In addition to the positive ban on abortion contained in Article 40.3.3°, previous judgments of the Supreme Court have emphasised the importance of natural law in the Irish constitutional framework, based partly on the preamble to the Constitution which refers to the "Christian nature of the State". Previous dicta from McGee v. Attorney General, G. v. An Bord Uchtála and Norris v. Attorney General indicated that notwithstanding the explicit positive law constitutional ban on abortion, even if Article 40.3.3° were not there, the natural law enshrined in the Constitution would prohibit the Oireachtas from legalising abortion.
The Supreme Court had to decide which was superior, positive law or natural law. The Attorney General argued the Bill was adopted pursuant to a valid constitutional amendment which had passed with a support of a majority of the voters in a referendum. Court appointed Counsel arguing against constitutionality submitted that the legislature and people could not amend the constitution in a manner inconsistent with natural law.
The Court therefore had to determine which was the ultimate rule of recognition for the State. Popular sovereignty is recognised in the constitution by allowing the legislature with a majority of the electorate to amend the constitution but catholic Christian traditions are recognised in the preamble, the wording of some of the articles and was probably in accordance with the original intent of its drafters. The Constitution contained ambiguous provisions (e.g. 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 requirements of the common good.")
The Court decided that the foundation of Irish Constitutional law was popular sovereignty and rejected the idea that natural law could in any way limit the people's right to amend the constitution, provided they complied with the relevant provisions on adopting an amendment.
Abortion in Ireland is regulated by the Health Act 2018. Abortion is permitted in Ireland during the first twelve weeks of pregnancy, and later in cases where the pregnant woman's life or health is at risk, or in the cases of a fatal foetal abnormality. Abortion services commenced on 1 January 2019, following its legalisation by the aforementioned Act, which became law on 20 December 2018. Previously, the 8th Constitutional Amendment had given the life of the unborn foetus the same value as that of its mother, but the 36th constitutional amendment, approved by referendum in May 2018, replaced this with a clause permitting the Oireachtas (parliament) to legislate for the termination of pregnancies.
The Supreme Court of Ireland is the highest judicial authority in Ireland. It is a court of final appeal and exercises, in conjunction with the Court of Appeal and the High Court, judicial review over Acts of the Oireachtas. The Supreme Court also has appellate jurisdiction to ensure compliance with the Constitution of Ireland by governmental bodies and private citizens. It sits in the Four Courts in Dublin.
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Amendments to the Constitution of Ireland are only possible by way of referendum. A proposal to amend the Constitution of Ireland must first be approved by both Houses of the Oireachtas (parliament), then submitted to a referendum, and finally signed into law by the President of Ireland. Since the constitution entered into force on 29 December 1937, there have been 32 amendments to the constitution.
Attorney General v X, [1992] IESC 1; [1992] 1 IR 1, was a landmark Irish Supreme Court case which established the right of Irish women to an abortion if a pregnant woman's life was at risk because of pregnancy, including the risk of suicide.
The Fourteenth Amendment of the Constitution Act 1992 is an amendment to the Constitution of Ireland which specified that the protection of the right to life of the unborn does not limit the right to distribute information about services in foreign countries. It was approved by referendum on 25 November 1992 and signed into law on 23 December of the same year.
The Thirteenth Amendment of the Constitution Act 1992 is an amendment to the Constitution of Ireland which specified that the protection of the right to life of the unborn does not limit freedom of travel in and out of the state. It was approved by referendum on 25 November 1992 and signed into law on 23 December of the same year.
The Twelfth Amendment of the Constitution Bill 1992 was a failed proposal to amend the Constitution of Ireland, to exclude the risk of suicide as sufficient reason to legally allow an abortion. It was rejected in a referendum on 25 November 1992.
Three referendums were held simultaneously in Ireland on 25 November 1992, each on a proposed amendment of the Irish constitution. They were enumerated as the twelfth, thirteenth and fourteenth amendments.
The Twenty-fifth Amendment of the Constitution Bill 2001 was a proposed amendment to the Constitution of Ireland to tighten the constitutional ban on abortion. It would have removed the threat of suicide as a grounds for legal abortion in the state, as well as introducing new penalties for anyone performing an abortion, by giving constitutional status to legislation proposed to be enacted after the amendment. It was narrowly rejected in a referendum held on 6 March 2002, with 50.4% against.
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Feminism in Ireland has played a major role in shaping the legal and social position of women in present-day Ireland. The role of women has been influenced by numerous legal changes in the second part of the 20th century, especially in the 1970s.
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Pro Life Campaign (PLC) is an Irish anti-abortion advocacy organisation. Its primary spokesperson is Cora Sherlock. It is a non-denominational organisation which promotes anti-abortion views and defends human life at all stages from conception to natural death, and opposes abortion in all circumstances.
The Thirty-first Amendment of the Constitution (Children) Act 2012 amended the Constitution of Ireland by inserting clauses relating to children's rights and the right and duty of the state to take child protection measures. It was passed by both Houses of the Oireachtas (parliament) on 10 October 2012, and approved at a referendum on 10 November 2012, by 58% of voters on a turnout of 33.5%. Its enactment was delayed by a High Court case challenging the conduct of the referendum. The High Court's rejection of the challenge was confirmed by the Supreme Court on 24 April 2015. It was signed into law by the President on 28 April 2015.
The Protection of Life During Pregnancy Act 2013 was an Act of the Oireachtas which, until 2018, defined the circumstances and processes within which abortion in Ireland could be legally performed. The act gave effect in statutory law to the terms of the Constitution as interpreted by the Supreme Court in the 1992 judgment Attorney General v. X. That judgment allowed for abortion where pregnancy endangers a woman's life, including through a risk of suicide. The provisions relating to suicide had been the most contentious part of the bill. Having passed both Houses of the Oireachtas in July 2013, it was signed into law on 30 July by Michael D. Higgins, the President of Ireland, and commenced on 1 January 2014. The 2013 Act was repealed by the Health Act 2018, which commenced on 1 January 2019.
Fiona de Londras is an Irish academic and the Professor of Global Legal Studies at the University of Birmingham, UK. Since October 2019 she is also an honorary professor at the Australian National University in Canberra.
D v Ireland is a case of the European Court of Human Rights concerning abortion in Ireland. It refers to the court case itself, and the circumstances surrounding abortion for fatal foetal abnormalities in Ireland. In 2002 Deirdre Conroy discovered her pregnancy was non-viable and had a termination in Northern Ireland. A public letter, written using a pseudonym, asking for it to be legal was credited with influencing the 2002 abortion referendum. She lost a court case in the ECHR in 2006 because she had not exhausted all domestic remedies. In 2013 after the death of Savita Halappanavar, she came forward, revealed her identity and again asked for this sort of termination to be legal.
The Thirty-sixth Amendment of the Constitution of Ireland is an amendment to the Constitution of Ireland which permits the Oireachtas to legislate for abortion. The constitution had previously prohibited abortion unless there was a serious risk to the life of the mother.
Roche v Roche [2010] 2 IR 321: [2009] IESC 82 is an Irish Supreme Court case which affirmed the High Court decision that frozen embryos did not constitute the “unborn” within the meaning of Article 40.3.3 of the Irish Constitution. The spirit of the Supreme Court's judgement was that frozen embryos were not extended the same right to life as given to embryos protected in the womb. With an increase in IVF among couples, legal issues arise when the couple decide to separate or divorce. This is a landmark case as it gave a judgement on such a circumstance where a couple has separated but there are surplus embryos frozen at a clinic. The Court made its decision by ultimately taking into account the right to reproduce.
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