In re Article 26 and the Regulation of Information (Services outside the State for Termination of Pregnancies) Bill 1995
In re Article 26 and the Regulation of Information (Services outside the State for Termination of Pregnancies) Bill, 1995 | |
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Court | Supreme Court of Ireland |
Full case name | 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 |
Decided | 12 May 1995 |
Citation(s) | [1995] IESC 9, [1995] 1 IR 1 |
Court membership | |
Judges sitting | Hamilton C.J, … |
Keywords | |
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 President Mary 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.
Background
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.
Fourteenth Amendment
In
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 General Dermot 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
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
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.