Sentenza 12 maggio 1995

Corte Suprema Irlandese. Sentenza 12 maggio 1995.

Pres. e Rel. Hamilton.

(omissis)

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 the Constitution.

The reference. – By order given under her hand and seal on the 18th day of March 1995 the President, Mary Robbinson, in pursuance of the provisions of Article 26 of the Constitution after consultation with the Council of State referred the Bill to the Supreme Court for a decision on the question as to wether the Bill or any provision or provisions thereof is or are repugnant to the Consitution or to anu provision thereof.

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 IndecentíAdvertisments Act, 1989 and the Censorship of Publications Acts, 1929 to 1967 and to provide for related mattersî.

Proceeding on the reference. – 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 lifre of the unborn and those based on or with particular reference to the right to life of the mother, and the Courtís duty in testing the provisions thereof to examine it in as wide a manner as possible, the Court considered it desirable to assign two teams of counsel and solicitors to argue agains the constitutionallity 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 constitutionality of the Bill or anu provision thereof.

Prior to the oral hearing, counsel assigned by the Court in pursuance of Article 26 of the Constitution presented in writing head 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 his behalf.

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

Summary of main provisions of the bill. – At this stage it is desirable to emphasise that both the Fourteenth Amendment to the Consitution and the Bill are concerned solely with the freedom to obtain or make available information. They do not purport to make lawful any act directluúy affecting the life of the unborn which would not have been lawful prior to the passing of the Fourteenth Amendment.

They are esclusively 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 whic abortion may be legal either in this jurisdiction or outside the State.

The main privisions of the Bill may be summarised as follows:

(1) The Bill to information, likely to be required bu 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.

(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

(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;

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

(iii) the information is truthful and objective;

and

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

The ways referred to are:

(a) orally ad a meeting to which the public have access whether upon payment or free of charge,

(b) in a book, newspaper, journal, magazine, leaflet or pamphlet, or any other document,

(c) in a film or a recording (whether of sound or images or both),

(d) by means of radio or television, or

(e) by any other means to the public.

The Provision of Act information is subject to the qualification set forth in Section 4 of the Bill.

(3) Section 4 of the Bill provides that it shall not be lawful to display a notice (including and advertisement) containing Act information in or at a place to shich the public have access whether upon payment or free of charge or to distribute without solicitation by the recipients, a book, newspaper, journal, magazine, leaflet or pamphlet or any other document, or a film or a recording containing such information.

(4) By virtue of the provisions of Section 3 of the Bill, if the information relates to services provided in a particular place or to persons providing them in a particular place and 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 and the information and the method and manner of its publication are in compliance with the law of that place, and the information is truthful and objective and does not advocate or promote, and is not accompanied by any advocacy, or promotion of, the termination of pregnancy, the publication of such information is not rendered unlawful by the act; neither is the sale or other distribution of such information rendered unlawful, subject of course to the provisions of Section 4 which render it unlawful to dispaly a notice containing Act information in or at a place to which the public have access whether upon payment or free of charge, or to distribute without solicitation by the recipient, a book, newspaper, journal, magazine, leaflet or pamplet or any other document, or a film or a recording containing act information.

(5) A person to whom Section 5 of the Bill applies is defined in Section 1(i) of the Bill as

“a person who engages in, or hold himself, herself or itself out as engaging in, the activity of giving information, advice or counselling to individual members of the public in relation to pregnancyî.

Such persons are subject to the restrictions contained in Sectione 5, 6, 7 e 8 of the Bill.

The provisions of these Sections apply when such a person is requested by or on behalf of an individual woman who indicates or on whose behalf it is indicated that she is or may be pregnant to give information, advice or counselling in relation to her particular circumstances.

Section 5 provides that in such circumstances, it shall not be lawful to advocate or promote the termination of the pregnancy to the woman or any person on her behalf.

This Section also provides that it shall not be lawful to give Act information to the woman or anybody on her behalf unless.

(i) the information and the method and manner of its publication are in compliance with the requirements of Par. (1) and (11) of Sectione 3(1)(a),

(ii) the information is given in a manner which does not advocate or promote the termination of pregnancy

and

(a) at the same time, information (other than her in relation to her particular circumstances aforesaid, and

(b) the informatione, counsellind and advice

(i) are truthful and objective,

(ii) fully inform the woman of all the courses open to her in relation to her particular circumstances, and

(iii) do not advocate or promote and are not accompanied by any advocacy or promotion of, the termination of pregnancy.

(6) Section 6 makes it unlawful for aperson or body to whom Section 5 applies to give Act information if such person or body provides the services to which the Act information relates or has an interest in a body providing such services. No submission was made that this section was unconstitutional. Section 7 makes it unlawful for a person to whom Section 5 applies:

(1) To obtain directly or indirectly any financial or other benefit or advantage from any person who provides services outside the State or who has an interest in a body providing such services, or

(2) to obtain directly or indirectly from the woman concerned any financial benefit in respect of:

(a) the giving of Act information, or

(b) the availing by the woman of a service provided outside the State for the termination of pregnancy.

It was submitted by counsel on behalf of the mother that the section was unreasonably wide and could make the giving of information virtually impossible as anyone doing so might think they were at risk of breaking in the law. The Court will deal with this submission when the other submissions made by counsel on behalf of the mother are being considered later in this judgment.

(7) Section 8(1) provides that –

“(1) it shall not be lawful for a person to whom Section 5 applies or the emplyer or principal of the person to make an appointment or anu other arrangement for on behalf of a woman with a person who provides services outside the State for the termination of pregnanciesî.

Sub-section 2 provides that –

“Nothing in sub-section 1 shall be constructed as prohibiting the giving to a woman by a person to whom Section 5 applies or the employer or principal of the person of any medical, surgical clinical, social or other like records or notes relating to the woman in possession of the person or the employer or principal of the person or a copy or copies thereof in written formî.

While Section 8(1) of the Bill provides as as aforesaid, it only relates to persons or bodies to whom Section 5 applies and there is no similar provision with regard to any other person or body.

(8) Section 10 of the Bill provides that a person who contravenes Section 3, 4, 5, 6, 7, 8 or 9 shall be guilty of an offence and liable on summary conviction to a fine not exceeding £ 1,500.

Section 9 of the Bill provides for the issue of search warrants by a judge of the District Court and the seizure of certain documents by members of the Garda Siochana if they believe on reasonable grounds that they may be required to be used in evidence in any proceedings for an offence under Section 10 of the Bill.

(9) in the Bill, “womanî is defined as “a female personî and “termination of pregnanciesî means “intentional procurement of miscarriages of women who are pregnantî.

It is clear from the aforesaid summary of the Bill that its purpose was, as stated in the long title thereto, “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 wuch services may be given to individual women or the general public and to provide for related mattersî.

The information to which the Bill relates is information likely to be required by a woman for the Purpose of availing herself of services Outside the State for the termination of pregnancies, relating to such services and the persons who provide them.

The information likely to be required by a woman for the purpose of availing herself of services outside the State for the termination of pregnancies includes information with regard to the identity and location and method of communication with a specified clinic or clinics for the purpose of termination of pregnancy.

The giving of such information, viz. relating to the services and the persons who provide them, to a woman for the purpose of enabling her to avail of such services for the termination of pregnancy had been held by this Court in a number of cases, including The Attorney General v. Open Door Counselling Limited and Anor. (1988 I.R. Page 593) to be unlawful having regard to the provisions of Article 40, s. 3 sub-s 3 of the Constitution, which at the time of such decisione, provided that: –

“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 laaws to respect, and, as far as practicable, by its laws to defend and vindicate that rightî.

Were it not for the enactment and provisions of the Fourtheenth Amendment to the Constitution, the provisions of the Bill in so far as it permitted the dissemination of such information would undoubtedly be repugnant to the Constitution.

The Fourteenth Amendment to the Constitution provided that: –

“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 Stateî.

The Bill was passed by both Houses of the Oirechtas on the 14th day of March 1995 and purports to lay down the conditions subject to which the information relating to services lawfully available in another State may be given to an individual woman and to the General Public.

Presumption of constitutionality of the Bill. – The Bill having been passed by both Houses of the Oirechtas, is entitled to the presumption that no provision thereof is repugnant to the Consitution.

This Court has held in many previous decisions viz. the decision in the Reference of the criminal Law (Jurisdiction) Bill, 1975 (1977 I.R. 129), the decision on the Reference of the Electoral (Amendment) Bill, 1983, (1984) I.R. at p. 273, the decision in the Reference of the Adoption (No. 2) Bill 1987, (1989) I.R. at pl 660 and its decision in the Reference of the Matrimonial Home Bill, 1993 that there must be applied by the Court to a Bill referred to it by the President pursuant to Article 26 a presumption of constitutionality.

The Court in its consideration of this Bill on this Reference applies the presumption of constitutionality laid down by it in the East Donegal Co-operative Livestock Marts Ltd. v. The Attorne General 1970 I.R. which are summarised in the decision of this Court in the Reference pursuant to Article 26 of the Adoption (no. 2) Bill 1987 (1989) I.T. at p. 661 as follows:

“(1) That it must be presumed that all proceeding, procedures, discretions and adjudications permitted or prescribed by the Bill are intended to be conducted in accordance with the principles of consitutional justice, and

(2) that as between two or more reasonable construction of the terms of the Bill the construction that is in accordance with the provisions of the Constitution would prevail over anu construction that is not in accordance with such provisionsî.

The issue which falls to be decided by the Court is the question wheter it has been established that the provisions contained in the Bill or any of them is or are repugnant to the Constitution or to any provision thereof.

Constitutional Provisions Particularly Involved. – Article 5 of the Constitution provides that: –

“Ireland is a sovereign, independent, democratic stateî.

Article 6 of the Constitution provides that: –

“1. All powers of government, legislative, executive and jjudicial, 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.

2. These powers of government are exercisable only by or on the authority of the organs of State establiched by this Constitutionî.

Article 40.3 of the Constitution provides that: –

“1. The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.

2. The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.

3. 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 (hereinafter referred to as the Eighth Amendment).

This sub-section shall not limit freedom to travel between the State and another State (hereinafter referred to as the Thirteenth Amendment).

Article 41, section 1 provides that: –

“1º The State recognises the Family as the natural primaru and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.

2º The State, therefore, guarantees to protect the Family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State.

Article 41, section 2 provides that: –

“1º In particular, the State recognises that by her life within the home, woman gives to the State a support without which the common good cannot be achieved.

2º The State shall, therefore, endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the homeî.

Position prior to the passing of the Fourteenth Amendment.

The determination of the issue as to whether or not the Bill or any provision thereof is repugnanto to the Constitution or auny provisions thereof, of necessity involves an examination of the relevant provisions of the Constitution. Prior to the passing of the Eighth Amendment to the Constitutione, the right to life of the unborn was not one of the personal rights acknowledged tspecifically by the Constitution. However, the right to life of the unborn had been referred to and aknowledged by Walsh J. in the course of his judgment in G. v. An Bord Uchtala, 1980 I.R. 32. (Omissis).

The right to life of the unborn was clearly recognised by the Courts as one of the unenumerated personal rights which the State guaranteed in its laws to respect, and, as far as practicable, by its laws to defend and vindicate.

Eighth Amendment of the Constitution added to Section 3 of Article 40 the following sub-section: –

“3º 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 respect, and, as far as practicable, by its laws to defend and vindicate that rightî.

Thereby acknowledging the right to life of the unborn.

(omissis)

The members of this Court agreed with regard to the idenity and location and method of communication with a specified clinic or clinics for the purpose of having an abortion or termination of a pregnanccy was unlawful having regard to the provisons of Article 40, s. 3 sub-s. 3 of the Costitution even though such abortion or termination was to take place outside the State and would be lawfully available in another State.

This decision by this Court was based on its interpretation of provisions of the Eighth Amendment of the Constitution, interpreted with particular emphasis on and with reference to the right to life of the unborn.

(omissis)

The provisons of the Eighth Amendment to the Constitution were further considered by this Court in The Attorney General v. X and Others, 1992 Vol. 1, I.R.

(omissis)

One of the issues which arose in The Attorney General v. X concerned the motherís right to life which was acknowledged by the Eighth Amendment.

It was submitted on behalf of the Defendants in the case that although the Eighth Amendment required the Courts to defend and vindicate the life of the unborn, they were, in doing so, to have regard to the equal right to life of the mother.

(omissis)

The X case however established that having regard to the true interpretation of the Eighth Amendment, termination of the life of the unborn is permissible if it is established as a matter of probability that there is a real and substantial risk to the life, as a distinct from the health of the mother and that that risk can only be avoied by the termination of her pregnancy.

In such a case, does a constitutional right arise or exist to obtain information the purpose of which is to vindicate the right to life of the mother though with the inevitable consequence of and at the expense of terminating the right to life of the unborn child?

Once the termination of the pregnancy is permissible the mother has the right to all relevant information necessary to enable her to have the pregnancy terminated and this includes the information which was the subject matter of the orders in the S.P.U.C. case, viz. information with regard to the identity and location of and method of communication with a specified clinic or specified clinics.

The effect of the decision of the Supreme Court and the judgment of the majority of the Court in the

Attorney General v. X, and Ors. case is that where ther is a real and substantial risk to life, as distinct from the health of the mother, and that risk can only be avoided by the termination of the motherís pregnancy, then such termination is permissible and not unlawful having regart to the provisions of Article 40, s.3, sub-s 3 of the Constitution.

In such circumstances, the mother would have the right to travel outside the jurisdiction to avail of such services to secure termination of the pregnancy.

(omissis)

That would appear to be the position with regard to the provision of information with regard to the services provided outside the State for the termination of pregnancies prior to the enactment of the Fourteenth Amendment to the Constitution.

This amendment provided that: –

“This sub-section 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 Stateî.

The sub-section referred to in the said amendment was that which provided that:

“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.

For the reasons set forth in the course of this judgment, it is manifest that, were it not for the provisions of the Fourteenth Amendment to the Constitution, that many of the provisions of the Bill relating to the provisions of information relating to services available in another State for the obtaining of abortions or termination of pregnancies, including the identity and locations of and method of communication with clinics where these services were available would be repugnant to the provisions of the Constitution despite the conditions imposed by the Bill on the availability and nature of the information to which the Bill related.

The giving of such information had been held to be unlawful having regard to the provisions of Article 40, s. 3, sub-s 3 of the Constitution in that, in effect, it provided assistance in the destruction of the life of the unborn.

The provisions of the Furteenth Amendment however provided that this sub-section should 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 purpose of this Amendment was to remove the inhibition placed on the granting of information with regard to these services relating to the termination of pregnancies, by the decision of the Supreme Court based on the provision of Article 40, s. 3, sub-s. 3 of the Constitution.

The Fourteenth Amendment gave to the Oireachtas the power to lay down the conditions subject to which such information should be obtained or make available and expressly provided that the sub-section of the Constitution which acknowledged the right to life of the unborn should not limit freedom to obtain or make available in the State, such information.

(omissis)

They deal with “information relating to services lawfully available in another Stateî. Such information must include, and was intended to include, information with regard to the nature of the services, where and by whom they are provided and all information in relation thereto including the identity, location and method of communication with specified clinics or a specified clinic where such services are lawfully provided.

It is clear… judgments that the Courts in interpretating the Constitution and in ascertaining and declaring what are the personal rights which are guaranteed by the Constitution and in determining, where necessary, the rights which are superior or antecedent to positive law or which are imprescriptible or inalienable, must act in accordance with the aforesaid guidelines as laid down in the Constitution and must be interpret them in accordance with their ideas of prudence, justice and charity.

(omissis)

The Bill. – The Bill which has been referred by the President to this Court must be examined to enable this Court reach a decision as to whether it or any specified provision thereof, if the words of Article 26, s. i of the Constitution, “is or are repugnant to this Constitutionî.

The Court is only concerned with the provisions of the Constitution.

The provisions of the Forteenth Amendment give to the Oirechtas, which by virtue of the provisions of Article 15, s. 2, sub-s 1 of the Constitution has vested in it the sole and exclusive power of making laws for the State, the power to lay down by law the conditions to which the obtaining or making available within the State information relatin to services lawfully available in another State may be subject.

In determining the conditions to which the obtaining or making available of the information relating to services was subject, the Legislature, as one of the organs of State, was obliged to ensure that such conditions are in accordance with the provisions of the Constitution and in particular the provisions of Article 40, s, 3, sub-s 3 which provide: –

“The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of citizen.

Normally the legislature in determining such conditions would be obliged to have regard to the provisions of Article 40, s. 3, sub-s. 3 which “acknowledges the right to life of the unborn and which the State guarantees in its laws to respect, and as far as practicable, by its laws to defend and vindicate with due regard to the equal right to life of the mother.

The terms of the Fourteenth Amendment specifically provide that the freedom to obtain or make available in the State information relating to services lawfully available in another State shall not be limited by the provisions of Article 40, s. 3, sub-s 3 of the Constitution.

In laying down in the Bill the conditions to which the obtaining or making available of this information is subject the Legislature is not entitled and is indeed prohibited from having regard to the provisions of Article 40, s. 3, sub-s 3 for the purpose of limiting the freedom to obtain such information.

The provisions of the Fourteenth Amendment with regard to information relating to services lawfully available in another State is in direct conflict with the effect of the provisions of the Eighth Amendment in this regard as decided by this Court in the S.P.U.C. case and subsequent case.

The People in enacting this Amendment were aware of this conflict because they specifically decided that the freedom to obtain or make available should not be limited by the provisions of the Eighth Amendment.

In passing the Bill, the Oireachtas was essentially engaged in laying down the conditions subject to shich such information should be obtained or make available andin doing so was engaged in the balancing of constitutional should be obtained or made available and in doing so was engaged in the balancing of constitutional rights and duties, including the right to life of the unborn, the right to life of the mother, the right to information and other constitutional rights.

(omissis)

Consequently, the approach to be taken by the Court in determining whether the provisions of the Bill or any provision thereof are or is repugnant to the Constitution or any provisions thereof is not to impose its view on the terms of the Bill as passed by the Oireachtas but rather to determine from an objective stance whether the provisions of the Bill represent a fair and reasonable balancing by the Oireachtas of the various conflicting rights and is not so contrary to reason and fairness as to constitute an unjust attack on the constitutional rights of the unborn or on the constitutional rights of the mother or any other person or persons.

Right to life of the mother. – Neither the provisions of the Fourteenth Amendment not the provisions of the Bill purport to affect in any way any of the provisions of the Constitution other than in relation to information and the information, the giving and obtaining of which is authorised, is information relating to services lawfully available in another State and is such as is likely to be required by a woman for the purpose of availing herself of services Outside the State for the termination of pregnancies and the information to be given relates to such services and/or to the persons who provide them.

It is fundamental to the provisions of the Bill that the information to be given does not advocate or promote the termination of pregnancy and is not accompanied by any advocacy or promotion of the termination of pregnanccy.

This condition applies to information to which both Section 3 and Section 5 of the Bill relates.

In addition Section 8(1) of the Bill provides that: –

“It shall not be lawful for a person whom Section 5 applies or the employer or principe of the person to make an appointment or any other arrangement for or on behalf of a woman with a person who provides services outside the State for the termination of pregnanciesî.

The condition that the information to be given does not advocate or promote the termination of pregnancy and the prohibition on any persona, to whom Section 5 applies, making an appointment or other arrangement on behalf of a woman with a person who provides services outside the State for the termination of pregnancies are a clear indication of the intention of the Legislature to respect and as far as practicable to defend and vindicate the respect to life of the unborn, having regard to the equal right to life of the mother.

(Omissis).

As already stated, the effect of the decision of this Court and the judgements of the majority of the Court in the Attorney General case was that there is a real and substantial risk to the life, as distinct from the health, of the mother and that risk can only be avoided by the termination of the motherís pregnancy then such termination is permissible and not unlawful having regard to the provisions of Article 40, s. 3, sub-s. 3 of the Constitution… The Bill merely deals with information relating to services lawfully available outside the State for the termination of pregnancies and the person who provide such services.

The condition subject to which such information may be provided to a woman who indicates or on whose behalf it is indicated that she is or may be pregnant is that the person giving such information is

(i) not permitted to advocate or promote the termination fo pregnancy to the woman or any person on her behalf;

(ii) not permitted to give the information unless it is given in a form and manner which do not advocate or promote the termination of pregnancy and is only permitted to give information relating to services “which are lawfully available in the other Stateî and to persons, who in providing them are acting lawfully in that place if

(a) the information and the method and manner of its Publication are in compliance with the law of that place, and

(b) the information is truthful and objective and does not advocate or promote, and is not accompanied by any advocacy or promotion of the termination of pregnancy.

As the same time information, counselling and advice must be given directly to the woman in relation to all the courses of action that are open to her in relation to her particular circumstances and such informarion, counselling and advice must not advocate or promote and must not be accompanied by any advocacy or promotion of, the termination of pregnancy.

Subject to such restrictions, all information relating to services lawfully available outside the State and the persons who provide them is available to her.

This section 8 prohibits a doctor or any person to whom Section 5 of the Bill relates from making an appointment or any other arrangement for or on behalf of a woman with a person who provides services outside the State for the termination of pregnancies.

It does not preclude him once such appointment is made from communicating in the normal way with such other doctor with regard to the condition of his patient provided that such communication does not in any way advocate or promote and is not accompanied by any advocacy of the termination of pregnancy.

While a doctor is precluded by the terms of the Bill from advocating or promoting the termination of pregnancy, he is not in any way precluded from giving full information to a woman with regard to her state of health, the effect of the pregnancy thereon and the consequences to her health and life if the pregnancy continues and leaving to the mother the decision whether in all the circumstances the pregnancy should be terminated. The doctor is not in any way prohibited from giving to his pregnant patient all the information necessary to enalbe her to make an informed decision provided that he does not advocate or promote the termination on prengancy.

In addition Sectione 8 does not prohibit or in any way prevent the giving to a woman any medical, surgical, clinical, social or other like records relating to her.

Having regard to the obligation on the Oireachtas to respect, and so far as practicable, to defend and vindicate the right to life of the unborn having regart to the equal right to life of the mother, the prohibition agains the advocacy or promotion of the termination of pregnancy and the prohibition against the advocacy or promotion on termination of pregnancy and the prohibition against any person to whom Section 5 of the Bill applies making an appointment or anu other arrangement for and on behalf of a woman with a person who provides services outside the State for the termination of pregnancies does not constitute an unjust attack on the rights of the pregnant woman. These conditions represent a fair and reasonable balancing of the rights involved and consequently Section 5 and 8 of the bill are not repugnant to the Constitution on these grounds.

Right to life of unborn. – The main argument made by Counsel appointed by the Court to argue against the constitutionally of the provisions of the Bill from the perspective of the unborn, viz. that the natural law was superior to the Constitution and that no provision of the Constitution or of any Act enacted by the Oireachtas or any judicial.

(omissis)

It was argued that the failure of the Oireachtas to require in the Bill that, where such information was sought and/or given, the parents of the minor should be so informed and in the case of a wife, the husband shoul be so informed, amounted to a failure by the Oireachtas to respect and so far as practicable to defend the constitutional rights of the parent, when the information in given to a minor, and of the hysband, when the information is given to a wife.

The consitutional rights and obligations of parents with regard to the care and control of their children and the rights of a husband, as a member of a family, remain unaffected by the provisions of the Fourteenth Amendment and of the Bill.

The question to be considered is whether the Bill infringes the rights of the parents of a minor or a husband by failing to contain a provision requiring that they or he be notified of the fact that the minor or the wife has sought and obtained the information to which the Bill relates.

This objection to the Bill relates to a situation where a woman, be she a minor or a wife, indicates or has indicated on her behalf, that she is or may be pregnant and requests from a person to whom Section 5 of the Bill applies, information, advice or counselling in relation to her particular circumstances, having regard to the fact that she is or may be pregnant.

In these circumstances the person giving the information is obliged by the provisions of Section 5 of the bill to give, at the same time, information (other than information to which the Bill relates), counselling and advice directly to the woman in relation to all the courses of action which are open to her.

In the consideration of the Bill and anu particular privison thereof, the Court should apply to such consideration the principles laid down by it in East Donegal Cooperative Livestock Mart Limited v. Attorney General, 1970 I.R. 317 which are summarised in the decision of this Court in the Adoption (No. 2) Bill, 1987. Reference which is reported in 1989 I.R. page 656 as follows: –

“That it must be presumed that all proceedings, procedures, discrections and adjudications permitted or prescribed by the Bill are intended to be conducted in accordance with the principles of constitutional justiceî.

(omissis)

Persons to whom Section 5 of the Bill applies are obliged to give informatione, counselling and advice directly to the woman in relation to all the courses of action which are open to her in relation to her particular circumstances and it must be presumed that in the giving of such information, counselling and advice, the person giving same will have regard to and give advice in accordance with the principles of constitutional justice and if there is any departure from these principles, such departure would be restrained and corrected by the Courts.

Constitutional justice requires that in the giving of such information, counselling and advice regard be had to the rights of persons likely to be affected by such information, counselling and advice.

Having regard to such presumption the fact that the Bill does not contain any provision requiring notification to parent of minors or to huusbands of wives, requestinf information to which the Bill relates, does not render it repugnant to the provisions of the Constitution by failing to respect and so far as practicable to defend and vindicate the constitutional rights of parent or husbands.

In such circumstances the Court considers that the provisions of Sectione 5 and Section 8 and represent a fair and reasonable balancing of conflicting rights and are not so contrary to reason and fairness as to-constitute an unjust attack on the constitutional rights of the unborn, of the mother or any other person.

Section 3 of the Bill sets forth the conditions under which information may be given to the public at large at meetings, in publication, in a film or recording, and by means of radio or television or by anu other means to the public.

The conditions to which the giving of such information is subject are set forth in detail in sectione 3 which has been summarised earlier in this judgment and it is unnecessary to set them forth in detail at this stage.

Again the Oireachtas has expressly provided that such information must not advocate or promote or be accompanied by any advocacy or promotion of, the termination of pregnancy.

The giving of information to the public is further restricted by the provisions of section 4 of the Bill which provides that is thall not be lawful to display a notice (including an advertisement) containing information, to which the Bill applied, in or at a place to which the public hav access whether upon payment or free of charge or to distribute without solicitation by the recipients a book, newspaper, journal, magazine, leaflet or pamphlet, or any other document, or a film or a recording (whether of sound or images or both) containing such information.

The requirement that the information to be given relates only to services lawfully available outside the Staye, is truthful and objective, and does not advocate or promote and is not accompanied by any advocacy or promotion of the termination of pregnancy represents a fair and reasonable balancing by the Oreachtas of the conflicting rights herein and is not so contrary to reason and fairness as to constitute an unjust attack on the constitutional rights of the unborn or any other person.

It was further argued that the penalty fixed by the Oireachtas for contravention fo the provisions of the Bill viz. a fine not exceeding £ 1,500 was so inadequate as to amount to a failure by the Oireachtas to respect and as far as practicable to defend and vindicate the right to life the unborn.

The question of the determination fo the appropriate penalty for the commission of an offence created by statute is a matter purely for the Oireachtas and the adequacy or otherwise of any such penalty cannot be regarded by this Court as a ground for holding that the provision is regard to the creation of the offence and providing the penalty therefor is repugnanto having regard to the creation of the offence and providing the penalty therefor is repugnant having regard to the provisions of the Constitution.

The Court has dealt in detail with the provisions and effects of Section 3, 4, 5, 8 and 10 of the Bill and is not satisfied that any of them is repugnant to the Constitution or any provision thereof.

(omissis)

Conclusion. – The decision of the Court therefore is that the Regulation of Information (Services outside the State for Termination of Pregnancies) Bill, 1995, is not repugnangt to the Constitution or to any provision therof.

I certify this to be the judgement and decision of the Court.

(omissis)