Supreme Court

Society for the Protection of the Unborn Child v Grogan and Others 

317/92 

6 March 1997 

HAMILTON CJ: 

This is an appeal brought by the Defendants in these proceedings (hereinafter referred to as the Appellants) against the judgment of the High Court (Morris J) delivered on the 7 August 1992 and the order made in pursuance thereof. By the said order the Defendants (Appellants) their servants or agents or anyone having knowledge of the said order were to be permanently restrained from printing, publishing or distributing or assisting in the printing, publishing or distribution of any publication produced under their aegis providing information to persons (including pregnant women) of the identity and location of, and the methods of communication with a specified clinic or clinics where abortions are performed. 

This order was sought by the Plaintiff company (hereinafter referred to as the Respondent) in proceedings instituted by it by way of plenary summons issued on the 25 September 1989. 

As appears from the Statement of Claim delivered on behalf of the Respondents on the 29 January 1990 the first to sixth named Defendants are sued in their representative capacities as the officers of the Union of Students in Ireland, an unincorporated association with its head office at 16 North Great Georges Street in the City of Dublin; the seventh to tenth named Defendants are sued in their representative capacities as the officers of the University College Dublin Students Union, an unincorporated association with offices at the temporary Union Centre, University College Dublin, Belfield and the eleventh to fourteenth named Defendants are sued in their capacities as the officers of the Trinity College Dublin Students Union, an unincorporated association with offices at Trinity College in the City of Dublin. The fifteenth named Defendant is a printer carrying on business from premises at 375 North Circular Road in the City of Dublin and printed a welfare guide on behalf of the University College Dublin Students Union for the years 1987-1988 and 1988-1989. This latter Defendant has taken no part in these proceedings. 

The Appellants other than the 15th named Defendant are persons who are members of three separate groups, namely, the Union of Students of Ireland, the Students' Union of University College Dublin, and the Students' Union of Trinity College Dublin. 

By Notice of Motion dated the 25 September 1989 and made returnable for the 9 October 1989, the Plaintiff sought an interlocutory injunction restraining the Defendants from publishing, distributing or assisting in the printing, publishing or distribution of any publication produced under their aegis providing information to persons (including pregnant women) of the identity and location of and the method of communication with a specified clinic or clinics where abortions are performed. 

Having heard submissions on the application for the said interlocutory injunction the learned High Court Judge (Carroll J) decided to refer certain questions to the Court of Justice of the European Communities for a preliminary ruling in accordance with Article 177 of the Treaty establishing the European Economic Community and made no order on the application for the interlocutory injunction other than referring the following questions to the Court of Justice:- 

1. Does the organised activity or process of carrying out an abortion or the medical termination of pregnancy come within the definition of "services" provided for in Article 60 of the Treaty establishing the European Economic Community? 

2. In the absence of any measures providing for the approximation of the laws of Member States concerning the organised activity or process of carrying out an abortion or the medical termination of pregnancy, can a Member State prohibit the distribution of specific information about the identity, location and means of communication with a specified clinic or clinics in another Member State where abortions are performed? 

3. Is there a right at Community law in a person in Member State "A" to distribute specific information about the identity, location and means of communication with a specified clinic or clinics in Member State "B" where abortions are performed, where the provision of abortion is prohibited under both the Constitution and criminal law of Member State "A" but is lawful under certain conditions in Member State "B"? 

Though there was no express order refusing or adjourning the application for an interlocutory injunction, the Respondent in these proceedings appealed to the Supreme Court against the failure of the learned High Court Judge to grant the said application for an interlocutory injunction. 

By its judgments delivered on the 19 December 1989 and the order made in pursuance thereof, the Supreme Court allowed the appeal and made the order sought. 

It did, however, grant 

"liberty to any party to apply to the High Court before the said trial or determination for a variation of the said order in the light of the preliminary ruling by the Court of Justice of the European Communities on the questions referred to it by the High Court under Article 177 of the Treaty". 

By its judgment delivered on the 4 October, 1991 the European Court ruled in relation to Question No 1 that "medical termination of pregnancy, performed in accordance with the law of the State to which it is carried out, constitutes a service within the meaning of Article 60 of the Treaty". 

Questions 2 and 3 of the Reference were considered together by the European Court and its ruling was:- 

"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." 

The ruling of the European Court of Justice is binding on the national court. (See Murphy v Bord Telecom Eireann (1989) IRLM page 53 and Crotty v An Taoiseach (1987) ILRM page 400). 

The Respondents' claim in these proceedings was heard by Morris J on the 17, 23 and 24 July 1992. The proceedings on the 17 July related to the evidence and on the 23 and 24 of July contained submissions by both parties. 

In the course of his judgment, delivered on the 7 August, 1992 the learned trial judge stated:- 

"I accordingly accept that by virtue of this ruling [the ruling of the European Court of Justice] a pregnant woman who is travelling to the United Kingdom for the purposes of an abortion is travelling to avail of a service as defined by the Treaty of Rome. However, a provision in this country which prohibited third parties from furnishing her with information relating to these clinics is not in conflict with the Treaty of Rome. It is well settled and has been found by the Supreme Court both in Society for the Protection of Unborn Children of Ireland Ltd v Open Door Counselling Ltd and Wellwoman Centre Ltd (1988) LR 593 and by the Supreme Court when hearing this case at the interlocutory stage (Society for the Protection of Unborn Children of Ireland Ltd v Grogan & Others, [1989] IR 753 that the distribution and provision of this information is unconstitutional." 

The information to which he referred was the information contained in the publications distributed by the Defendants. 

In the further course of his judgment, the learned trial judge stated that:- 

"It is submitted by Counsel for the Defendants that the Supreme Court in the Attorney General v X and Others (1992) 1 IR 1 identifies a class of person and a circumstance in which an abortion can be regarded as permissible. The test to identify such a person is to be found in the following passage from the judgment of Finlay CJ -- 

'I, therefore, conclude that the proper test to be applied is that if it is established as a matter of probability that there is a real and substantial risk to the life, as distinct from the health, of the mother which can only be avoided by the termination of her pregnancy, such termination is permissible having regard to the true interpretation of Article 40.3.3 of the Constitution.' 

It is submitted by Counsel in these circumstances the communication of information to such person would be justified and permissible so as to enable her to have the abortion, and it is submitted that the Defendant's conduct is lawful as a consequence. 

I identify a profound distinction between the distribution of the documentation and information which the Defendants are engaged in in the circumstances of this case, which involves the distribution of this information to the community at large and to University students in particular, on the one hand and the communication of such information to a clearly defined and extremely restricted type of person identified in the test. No case has been made to me, nor could it be made, that the conduct of the Defendants which it is sought to justify relates only to persons coming within the class identified by applying that test nor is it suggested that the Defendants wish to confine their activities to the distribution of information to that class. Accordingly, this argument fails on the grounds that it does not have any application in the circumstances of this case." 

It is clear from the judgment of the learned trial judge that he considered that he was bound by the rulings of the European Court of Justice and the decisions of the Supreme Court in the two cases to which he referred and being so bound he made the order which is the subject matter of the appeal by the Appellants herein. 

The constitutional and legal position as to the provision of information with regard to the Termination of Pregnancies has been altered by the provisions of the Fourteenth Amendment to the Constitution and the provisions of the Regulation of Information (Services outside the State for Termination of Pregnancies) Act, 1995 (hereinafter referred to as the 1995 Act). However the Appellants submit that the provisions of the said amendment to the Constitution and the said Act have no relevance to the appeal herein; that the appeal must be determined by this Court in accordance with the law prevailing at the time of delivery of the judgment and of the making of the order appealed. 

For the reasons given by Mr Justice Blayney in the course of the judgment he is about to deliver, which I have read and with which I agree, I am satisfied that this submission is incorrect and that in considering whether the injunction granted by the learned trial judge should be confirmed or not, the Court must look at what the present state of the law is and not at what it was at the time the proceedings commenced. 

However, it is necessary to deal with the state of the law prior to the passing of the 14th Amendment to the Constitution for the purpose of determining whether the order of the High Court was correct at the time it was made. 

Law prior to the passing of the Fourteenth Amendment 

The law prevailing at the time of delivery of the said judgment was set forth in detail by me when delivering the reasons of the Court in the Reference under Article 26 of the Constitution in the matter of the Regulation of Information (Services outside the State for Termination of Pregnancies) Bill, 1995 (hereinafter referred to as The Reference) at [1995] 2 IR 28, and [1995] 2 ILRM 81 appropriately summarised as follows:- 

"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. 

The Eighth Amendment of the Constitution added to s 3 of Article 40 the following sub-section:- 

'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,' 

thereby acknowledging the right to life of the unborn." 

In The Attorney General (SPUC) v Open Door Counselling [1988] IR 593, the Supreme Court considered the nature and extent of the right to life of the unborn, and in particular, whether it was constitutionally permissible for the defendants to provide information to pregnant women concerning the availability of abortion services in foreign jurisdictions. This behaviour was held to be unconstitutional. Finlay CJ stated at p 625: 

"The performing of an abortion on a pregnant woman terminates the unborn life which she is carrying. Within the terms of Article 40, s 3, sub-s 3 it is a direct destruction of the constitutionally guaranteed right to life of that unborn child. 

It must follow from this that there could not be an implied and unenumerated constitutional right to information about the availability of a service of abortion outside the State which, if availed of, would have the direct consequence of destroying the expressly guaranteed constitutional right to life of the unborn." 

The other members of the Court agreed with this judgment. 

The decision in that case was further considered by this Court in SPUC v Grogan [1989] IR 753. The Court rejected an attempt to distinguish its decision in Open Door. Finlay CJ said at p 764: 

"I reject as unsound the contention that the activity involved in this case of publishing in the students' manuals the name, address and telephone number when telephoned from this State, of abortion clinics in the United Kingdom, and distributing such manuals in Ireland, can be distinguished from the activity condemned by this Court in The Attorney General (SPUC) v Open Door Counselling Ltd [1988] IR 593 on the grounds that the facts of that case were that the information was conveyed during periods of one to one non-directive counselling. It is clearly the fact that such information is conveyed to pregnant women, and not the method of communication which creates the unconstitutional illegality, and the judgment of this Court in the Open Door Counselling case is not open to any other interpretation." 

The provisions of the Eighth Amendment to the Constitution received further attention by the Court in The Attorney General v X [1992] 1 IR 1. I quote from my judgment in The Reference: 

"The events which gave rise to these latter proceedings were, in the words of Costello J, painful and distressing: and there is no need to refer to them in this judgment. 

In that case, the Court was obliged to consider the effect of that portion of the Eighth Amendment which did not arise for 'interpretation or decision' in The Attorney General (SPUC) v Open Door Counselling Ltd [1988] IR 593 and which dealt with the equal right to life of the mother . . . 

In considering the terms of Article 40, s 3, sub-s 3 of the Constitution in this context, the Court recognised that, in certain circumstances, there could be a conflict between 'the right to life of the unborn' and 'the equal right to life of the mother'; that where such conflict of rights could not be avoided, the Constitution required that its provisions be interpreted harmoniously and that the rights thereby guaranteed should be interpreted in concert in accordance with the concepts of prudence, justice and charity. In the course of his judgment, Finlay CJ stated at p 53 of the report:- 

'Such a harmonious interpretation of the Constitution carried out in accordance with concepts of prudence, justice and charity, as they have been explained in the judgment of Walsh J in McGee v The Attorney General [1974] IR 284, leads me to the conclusion that in vindicating and defending as far as practicable the right of the unborn to life but at the same time giving due regard to the right of the mother to life, the Court must, amongst the matters to be so regarded, concern itself with the position of the mother within a family group, with persons on whom she is dependent, with, in other instances, persons who are dependent upon her and her interaction with other citizens and members of society in the areas in which her activities occur . . . 

I, therefore, conclude that the proper test to be applied is that if it is established as a matter of probability that there is a real and substantial risk to the life, as distinct from the health, of the mother, which can only be avoided by the termination of her pregnancy, such termination is permissible, having regard to the true interpretation of Article 40, s 3, sub-s 3 of the Constitution.' 

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 Attorney General (SPUC) v Open Door Counselling Ltd [1988] IR 593 viz information with regard to the identity and location of and method of communication with a specified clinic or specified clinics . . . 

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

It would appear, however, that irrespective of the mother's constitutional right to travel, the exercise of that right would have to be subordinated to the constitutional right to life of the unborn in circumstances where the pregnancy constituted no threat to the life of the mother . . . 

While these observations were made in respect of the right to travel, they can, with equal validity, be applied to the right to information. 

If the purpose of the travel or the securing of information is to procure an unlawful abortion, then it would be unlawful having regard to the provisions of Article 40, s 3, sub-s 3 of the Constitution, but if the purpose was the procurement of a permitted or lawful abortion ie one that complies with the test laid down in The Attorney General v X [1992] 1 IR 1, then neither the travel nor the giving or obtaining of information with regard thereto would be lawful. 

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." 

Counsel on behalf of the Appellants has submitted that the case of The Attorney General v Open Door Counselling Ltd and Anor (hereinafter referred to as the Open Door Counselling case) upon which such reliance was placed by the learned trial judge was wrongly decided and should be departed from by this Court. 

In this connection it is relevant to refer to a portion of the judgment of Henchy J in Mogul of Ireland Ltd v Tipperary (North Riding) County Council (1976) IR 260 where he stated at 272-273 of the Report:- 

"A decision of the full Supreme Court (be it the pre-1961 or the post-1961 Court), given in a fully-argued case and on a consideration of all the relevant materials, should not normally be overruled merely because a later Court inclines to a different conclusion. Of course, if possible, error should not be reinforced by repetition or affirmation, and the desirability of achieving certainty, stability, and predictability should yield to the demands of justice. However, a balance has to be struck between rigidity and vacillation, and to achieve that balance the later Court must, at the least, be clearly of opinion that the earlier decision was erroneous. In Attorney General v Ryan's Car Hire Ltd the judgment of the Court gave examples of what it called exceptional cases, the decisions in which might be overruled if a later Court thought them to be clearly wrong. While it was made clear that the examples given were not intended to close the category of exceptional cases, it is implicit from the use in that judgment of expressions such as 'convinced' and 'for compelling reasons' and 'clearly of opinion that the earlier decision was erroneous' that the mere fact that a later Court, particularly a majority of the members of a later Court, might prefer a different conclusion is not in itself sufficient to justify overruling the earlier decision. Even if the later Court is clearly of opinion that the earlier decision was wrong, it may decide in the interests of justice not to overrule it if it has become inveterate and if, in a widespread or fundamental way, people have acted on the basis of its correctness to such an extent that greater harm would result from overruling it than from allowing it to stand. In such cases the maxim communis error facit jus applies . . ." 

However the first question for determination in this Appeal is whether the Open Door Counselling case was clearly wrongly decided by the Supreme Court, as it is only in such circumstances that it would be open to this Court to overrule it. 

In considering this question, it is important to emphasise that the function of the Court in the Open Door Counselling case must have been and was confined to the issues and the parties before them. 

As stated by Finlay CJ at page 624 of the Report -- 

"The function of the Courts, which is not dependent on the existence of legislation, when their jurisdiction to defend and vindicate a constitutionally guaranteed right has been invoked, must be confined to the issues and to the parties before them. 

If the Oireachtas enacts legislation to defend and vindicate a constitutionally guaranteed right it may well do so in wider terms than are necessary for the resolution of any individual case. The Courts cannot take that wide approach. They are confined to dealing with the parties and issues before them." 

The constitutional provision in issue in the Open Door Counselling case was the Eighth Amendment of the Constitution which added to s 3 of Article 40 of the Constitution the following sub-section:- 

"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." 

As stated by Finlay CJ at page 621:- 

"It was not part of the facts of this case nor of the submissions of the Appellants that the service which they were providing for pregnant women in relation to the obtaining of abortion outside this jurisdiction was in any way confined to, or especially directed towards, the due regard to the equal right to life of the mother mentioned in the sub-section of the Constitution which I have already quoted, and this portion of that sub-section did not therefore arise for interpretation or decision in this case." 

Finlay CJ identified the essential issue in that case where he stated at page 624 of the Report that:- 

"I am satisfied, however, that the essential issues in this case do not in any way depend upon the Plaintiff establishing that the Defendants were advising or encouraging the procuring of abortions. The essential issue in this case, having regard to the nature of the guarantees contained in Article 40, s 3, sub-s 3 of the Constitution is the issue as to whether the Defendants admitted activities were assisting pregnant women within the jurisdiction to travel outside the jurisdiction in order to have an abortion. To put the matter in another way, the issue and the question of fact to be determined is; were they thus assisting in the destruction of the life of the unborn?" 

Having posed the question, he answered it in the following passage: 

"I am satisfied beyond doubt that having regard to the admitted facts the Defendants were assisting in the ultimate destruction of the life of the unborn by abortion in that they were helping the pregnant woman who had decided upon that option to get in touch with a clinic in Great Britain which would provide the service of abortion. It seems to me an inescapable conclusion that if a woman was anxious to obtain an abortion and if she was able by availing of the counselling services of one or other of the Defendants to obtain the precise location, address and telephone number of, and method of communication with, a clinic in Great Britain which provided that service, put in plain language, that was knowingly helping her to attain her objective. I am, therefore, satisfied that the finding made by the learned trial judge that the Defendants were assisting pregnant women to travel abroad to obtain further advice on abortion and to secure an abortion is well supported on the evidence." 

At page 625 of the Report, Finlay CJ stated:- 

"The performing of an abortion on a pregnant woman terminates the unborn life which she is carrying. Within the terms of Article 40, s 3, sub-s 3 it is a direct destruction of the constitutionally guaranteed right to life of that unborn child. 

It must follow from this that there could not be an implied and unenumerated constitutional right to information about the availability of, a service of abortion outside the State which, if availed of would have the direct consequence of destroying the expressly guaranteed constitutional right to life of the unborn. As part of the submission on this issue it was further suggested that the right to receive and give information which, it was alleged, existed and was material to this case was, though not expressly granted, impliedly referred to or involved in the right of citizens to express freely their convictions and opinions provided by Article 40, s 6, sub-s 1 of the Constitution, since it was claimed, the right to express freely convictions and opinions may, under some circumstances, involve as an ancillary right, the right to obtain information. I am satisfied that no right could constitutionally arise to obtain information the purpose of the obtaining of which was to defeat the constitutional right to life of the unborn child." 

This passage dealt with the constitutional right to life of the unborn child and did not purport to deal with the equal right to life of the mother. Indeed it was expressly stated, in the passage quoted herein, that the service being provided was not in any way confined to, or specially directed towards the due regard to the equal right to life of the mother mentioned in the sub-section of the Constitution and did not arise for interpretation or decision in the case. 

The nature of the "equal right to life of the mother" did however arise for interpretation and decision in the case of the Attorney General v X and Anor (1992) 1 IR page 1 (hereinafter referred to as the X case). 

The X case 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 distinct from the health, of the mother and that that risk can only be avoided by the termination of her pregnancy. 

In the Reference under Article 26 of the Constitution in the Matter of Regulation of Information (Services outside the State for Termination of Pregnancies) Bill, 1995 this Court stated that:- 

"If the purpose . . . of the securing of information is to procure an unlawful abortion, then it would be unlawful having regard to the provisions of Article 40 of the Constitution but if the purpose of the procurement of a permitted or lawful abortion, ie one that complies with the test laid down in the X case, then . . . the giving or obtaining of information with regard thereto would be lawful." 

As already stated, this issue had not arisen for determination in the Open Door Counselling case nor does it arise in this instant case save to the limited extent outlined in the judgment of Morris J where he stated:- 

"It is submitted by Counsel for the Defendants that the Supreme Court in the case of the Attorney General v X and Others (1992) 1 IR page 1 identifies a class of person and a circumstance in which an abortion can be regarded as permissible". 

and 

"It is submitted by Counsel in these circumstances the communication of information to such person would be justified and permissible so as to enable her to have the abortion, and it is submitted that the Defendant's conduct is lawful as a consequence. 

I identify a profound distinction between the distribution of the documentation and information which the Defendants are engaged in in the circumstances of this case, which involves the distribution of this information to the community at large and to University students in particular, on the one hand and the communication of such information to a clearly defined and extremely restricted type of person identified in the test. No case has been made to me, nor could it be made, that the conduct of the Defendants which is sought to justifyrelates only to persons coming within the class identified by applying that test nor is it suggested that the Defendants wish to confine their activities to the distribution of information to that task. Accordingly, this argument fails on the grounds that it does not have any application in the circumstances of this case." 

Having regard to the admitted activities of the Defendants in the Open Door Counselling case and of the Appellants in these proceedings it is not open to them to rely on the right of a woman to whom the test set forth in the X case applies to obtain information with regard to the termination of her pregnancy, as a justification of such activities. 

In neither case was the Court required or entitled to consider the right of a woman to whom the test set forth in the X case applies to information with regard to the termination of her pregnancy. No such person was a party to the proceedings in the Open Door Counselling case or in this case. 

The Appellants, in their defence to these proceedings, have pleaded that:- 

"10. The Constitution of Ireland, and in particular Article 40.3.3 thereof, protects the right to life of the mother which must encompass her having access to information where her life may be threatened or endangered by the continuation of the said pregnancy. The Defendants have a corresponding right to impart such information relating to medical termination of pregnancy." 

This right vested in the mother was clearly acknowledged by this Court in The Reference but the admitted activities of the Appellants in this case are not confined to the provision of such information. 

In the course of his judgment on the application for an interlocutory injunction in this case Finlay CJ stated at page 764 of the Report (1989 IR 753) that:- 

"I reject as unsound the contention that the activity involved in this case of publishing in the students manuals the name, address and telephone number when telephoned from this State, of abortion clinics in the United Kingdom and distributing such manuals in Ireland, can be distinguished from the activity condemned by this Court in the Open Door Counselling case on the grounds that the fact of that case were that information was conveyed during periods of one-to-one non directive counselling. It is clearly the fact that such information is conveyed to pregnant women, and not the method of communication which creates the unconstitutional illegality, and the judgment of this Court in the Open Door Counselling case is not open to any other interpretation." 

Counsel on behalf of the Appellants submitted that the Open Door Counselling case was wrongly decided because it was based upon a literal interpretation of the Constitution rather than a harmonious interpretation thereof which would have involved a consideration of the right to life of the unborn, the right to life of the mother (Article 40, s 3, sub-s 3) and the right of the citizens to express freely their convictions and opinions and a consideration of the issue whether in the particular circumstances of the case it was necessary to interfere with one constitutionally protected right in order to protect another. 

Counsel relied on the passage from the judgment of Henchy J in The People (DPP) v O'Shea [1982] IR 384 where he stated at page 426 of the Report that:- 

"I agree that if the relevant sub-section of the Constitution is looked at in isolation and is given a literal reading, it would lend itself to that interpretation. But I do not agree that such an approach is a correct method of constitutional interpretation. Any single constitutional right or power is but a component in an ensemble of interconnected and interacting provisions which must be brought into play as part of a larger composition, and which must be given such an integrated interpretation as will fit it harmoniously into the general constitutional order and modulation. It may be said of a Constitution, more than of any other legal instrument that 'the letter killeth but the spirit giveth life'. No single constitutional provision (particularly one designed to safeguard personal liberty or social order) may be isolated and construed with undeviating literalness." 

In the Open Door Counselling case the question whether a right to receive and give information which, it was alleged, existed and was material to the case was, though not expressly granted, impliedly referred to or involved in the right of citizens to express freely their convictions and opinions provided by Article 40.6.1 of the Constitution, since it was claimed, the right to express freely convictions and opinions may, under some circumstances, involve as an ancillary right the right to obtain information. 

This question was considered by the Court but it was held that 

(1) the performing of an abortion on a pregnant woman terminated the life she was carrying; 

(2) that such termination was a direct destruction of the constitutionally guaranteed right to life of that unborn child within the terms of Article 40.3.3 of the Constitution, and that 

(3) there could not be an implied and unenumerated constitutional right to information about the availability of a service of abortion outside the State which if availed of, would have the direct consequence of destroying the expressly guaranteed right to life of the unborn, and 

(4) no right could constitutionally arise to obtain information the purpose of which was to defeat the constitutional right to life of the unborn. 

Having regard to the parties who were before the Court and the issues raised by them I am satisfied that this case was rightly decided. 

I would again refer to and emphasise the statement of Finlay CJ where he stated:- 

"It was not part of the facts of this case nor of the submissions of the Defendants made in this case that the service which they were providing for pregnant women in relation to abortion outside this jurisdiction was in any way confined to, or specially directed towards the due regard to the equal right to life of the mother mentioned in the sub-section of the Constitution which I have already quoted and this portion of that sub-section did not therefore arise for interpretation or decision in this case." 

Similarly, it is clear from the evidence in this case and indeed the terms of the defence delivered on behalf of the Defendants herein that the service that they were providing for pregnant women in relation to abortion outside this jurisdiction was not in any way confined to or specially directed towards pregnant women who comply with the test set forth in the X case. 

Paragraph 5 of the Defence provides that:- 

"The Trinity College Dublin Students Union has published the Trinity College Dublin Guide Book and Diary 89/90 for distribution to students. The said guide book and diary includes a welfare section which provides information for students concerning pregnancy, with information as to the options available to women students who become pregnant, including keeping the baby, adoption, foster care and abortion. The said guide book and diary provides information as to the availability of abortion as a lawful service in the United Kingdom and related information. The said guide book and diary does not advocate or promote abortion." 

Paragraph 6 provides that:- 

"The University College Dublin Students Union has published a University College, Dublin Welfare Guide 89/90 for distribution to students. The said welfare guide includes a section on pregnancy information which provides information of a similar kind to set out at paragraph 5 of this Defence." 

Paragraph 7 provides that:- 

"The Union of Students in Ireland has published a monthly publication entitled 'USI News'. The said publication has provided information for students concerning the availability of abortion as a lawful service in the United Kingdom and as to the means of contacting certain abortion services where medical termination of pregnancy is lawfully carried out in the United Kingdom." 

The activities involved in this case consisted of publishing in the students manuals referred to the name, address and telephone number when telephoned from this State, of abortion clinics in the United Kingdom and distributing such manuals in Ireland. 

The fact that such information is conveyed to pregnant women is unconstitutional and illegal; the manner of such communication or the motives underlying such communication is irrelevant to the unconstitutional illegality of the act of communication. Consequently, the evidence of Dr Randals and Dr O'Carroll given in this case is irrelevant to the fundamental issues raised in this case. 

The giving of the information in these manuals is not confined to pregnant women, in respect of whom it is established as a matter of probability that there is a real and substantial risk to her life, as distinct from her health but is available to all students of the respective universities. 

The fact that the information may be given to a pregnant woman who complies with the test in the X case does not render lawful the activities of the Appellants because their avowed intention is to distribute such information generally. 

It was also submitted in the written submissions furnished on behalf of the Appellants, although not seriously pressed on the hearing of the appeal, that, since the European Court of Justice had ruled that the medical termination of pregnancy, performed in accordance with the law of the State in which it was carried out, constituted a "service" within the meaning of Article 60 of the Treaty of Rome in respect of which pregnant women were entitled to obtain information, provided that there was an economic link between the clinics, it could not be unconstitutional for the defendants to give information to people who had, as a matter of European Union law, the right to receive such information. It was said that this would create an absurd situation without legal precedent from any of the Member States of the Union. 

The ruling of the European Court of Justice, by which the High Court and this court were both bound, made it clear that such a right to receive information in European Union law had no application where the clinics in question had no involvement in the distribution of the said information. That was unarguably the position in this case. Since, for the reasons already given in this judgment, the rights of the Defendants under the Irish Constitution were not infringed by the relief granted in the High Court and were, as conceded in effect by the Defendants, not in violation of European Union law, it follows that this argument is without foundation. 

I am satisfied that the activities of the Appellants in this case were unlawful at the time of the making of the Order under appeal. 

It is further submitted on behalf of the Appellants that the granting of an injunction restraining their activities offends the principal of proportionality because it is neither necessary nor effective to restrain the availability of such information which is available generally in many publications containing information from abortion clinics which have a commercial interest in the availability of such information, which the Appellants do not have. 

On this issue, I agree with the statement of McCarthy J in the course of his judgment on the interlocutory application in this case where he stated that:- 

"In the light of the availability of such information from a variety of sources such as imported magazines etc. I am far from satisfied that the granting of an injunction to restrain these Defendants from publishing the material impugned will save the life of a single unborn child, but I am more than satisfied that if the courts fail to enforce, and enforce forthwith, that guarantee as construed in the Open Door Counselling case, then the rule of law will be set at nought." 

Consequently, I am satisfied that the judgment and the order of the High Court was correct when delivered and made viz 7 August, 1992. 

Subsequent to the said judgment and order, the 14th Amendment of the Constitution provided that the following paragraph be added to Article 40.3.3:- 

"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 State." 

The conditions referred to therein are set forth in the 1995 Act. I agree with the statement contained in the judgment about to be delivered by Mr Justice Blayney where he states that: 

"If the Appellants are complying with these conditions, they are protected by the provisions of the Fourteenth Amendment. If they are not complying with them, they are committing criminal offences and the only party who has the right to obtain an injunction against them is the Attorney General." 

Consequently, I am satisfied that though the injunction granted by Order dated the 7 August 1992 was lawfully granted at the time it cannot now be confirmed by this Court which must have regard to the law as it is now and not what it was at the date of the Order. 

BARRINGTON J: The facts and the background to this case are sufficiently stated in the other Judgments. I do not propose to restate them here. I agree with the Chief Justice that the case of the Society for the Protection of Unborn Children of Ireland Ltd v Open Door Counselling Ltd and Well Woman Centre Ltd (1988) IR page 593 was rightly decided on the facts and the issues before the Court at that time. The issue in that case was between the right to life of the unborn, on the one hand and the right of freedom of expression of the Defendants on the other hand. As between these two rights it appears to me that the Court was correct to prefer the right to life of the unborn even if this meant restricting the freedom of expression of the Defendants. No issue arose in that case as to the right to life of the mother. Indeed it is doubtful if the Defendants would have had locus standi to set up the right to life of the mother had it occurred to them to do so (See Cahill v Sutton [1980] IR 269). 

It is true, however, as Mrs Justice Denham says in her Judgment, that there is nothing like a hard concrete case for illustrating the implications and the limitations of a principle of Constitutional Law and that we all have a better understanding of the relevant constitutional provisions as a result of the decision in Attorney General v X and Ors (1992) 1 IR 1. But to my mind this rather raises the problem of whether it is wise to limit debates in Constitutional Law cases in the manner contemplated in Cahill v Sutton. 

The learned trial Judge, in the present case, felt obliged to follow the decision of this Court in the Society for the Protection of Unborn Children of Ireland Ltd v Open Door Counselling Ltd and Well Woman Centre Ltd (1988) Irish Reports page 593. It may be true that the Defendants in the present case like the Defendants In the Open Door Counselling case are claiming a general right to disseminate information. I doubt however if this Court, would now, after the X case, grant an injunction in such wide terms conscious that such an injunction might have the effect of denying to a mother in the position of the mother in the X case the right to receive information to which she might otherwise be entitled. 

It therefore appears to me that the injunction granted in the High Court must in any event be modified. However I also agree with the Chief Justice and with Mr Justice Blayney that the whole situation has now been changed by virtue of the provisions of the 14th amendment to the Constitution and the Regulation of Information (Services outside the State for Termination of pregnancies) Act 1995. If and insofar as the activities of the Defendants are covered by the 14th Amendment they are lawful and cannot be restrained. If and insofar as their activities violate the provisions of the legislation they can be prosecuted by the Director of Public Prosecutions or restrained by an injunction obtained by the Attorney General. 

I would therefore discharge the injunction. 

DENHAM J: On 4 August, 1992 the High Court ordered, in these proceedings, that: 

"the Defendants their servants or agents or anyone having knowledge of this Order be permanently restrained from printing, publishing or distributing or assisting in the printing publishing or distribution of any Publication produced under their aegis providing information to persons (including pregnant women) of the identity and location of and the method of communication with a specified clinic or clinics where abortions are performed." 

The Learned Trial Judge in making his order followed case law, being Society for the Protection of Unborn Children Limited v Open Door Counselling Limited and Well Woman Centre Limited [1988] IR 593 (hereinafter referred to as Open Door Counselling 1988) and Society for the Protection of Unborn Children Ireland Limited v Grogan and Others [1989] IR 753 which applied Open Door Counselling 1988. The Defendants/Appellants have appealed against the order and submit that the said previous cases were decided in error and should be departed from by this Court. 

Stare decisis. 

The Supreme Court may depart from a previous decision when there is a compelling reason, where it appears to be clearly wrong: State (Quinn) v Ryan [1965] IR 70; Attorney General v Ryan's Car Hire Ltd [1965] IR 642. As Kingsmill Moore J said at p 654 in the latter case: 

"In my opinion the rigid rule of stare decisis must in a Court of ultimate resort give place to a more elastic formula. Where such a Court is clearly of opinion that an earlier decision was erroneous it should be at liberty to refuse to follow it, at all events in exceptional cases." 

The issue then is whether the decision in Open Door Counselling 1988 is erroneous. 

Should Open Door Counselling 1988 be followed? 

The Constitutional provision in issue in Open Door Counselling 1988 was the Eighth Amendment of the Constitution which added to Article 40.3 of the Constitution the following subsection: 

"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." 

1. To protect life of the mother. 

In Open Door Counselling 1988 the Defendants submitted that it was essential for their service that they should be at liberty to inform women who wished to have an abortion outside the jurisdiction of the court of the name, address, telephone number and method of communication with a specified clinic which they had examined and were satisfied was one which maintained a high standard. It was ordered, at p 627: 

". . . that the defendants and each of them, their servants or agents be perpetually restrained from assisting pregnant women within the jurisdiction to travel abroad to obtain abortions by referral to a clinic, by the making for them of travel arrangements, or by informing them of the identity and location of and the method of communication with a specified clinic or clinics or otherwise." 

The Chief Justice stated at p 624. 

"I am satisfied beyond doubt that having regard to the admitted facts the defendants were assisting in the ultimate destruction of the life of the unborn by abortion in that they were helping the pregnant woman who had decided upon that option to get in touch with a clinic in Great Britain which would provide the service of abortion. It seems to me to be an inescapable conclusion that if a woman was anxious to obtain an abortion and if she was able by availing of the counselling services of one or other of the defendants to obtain the precise location, address and telephone number of, and method of communication with, a clinic in Great Britain which provided that service, put in plain language, that was knowingly helping her to attain her objective." 

This determination is clearly based on the premiss, and the inference may be drawn, that an abortion could never be lawful. This conclusion is indicated also by the words at p 625: 

"The performing of an abortion on a pregnant woman terminates the unborn life which she is carrying. Within the terms of Article 40, s 3, subsection 3, it is a direct destruction of the constitutionally guaranteed right to life of that unborn child." 

Such a premiss is an error. Arising out of Article 40, s 3, subsection 3 there exist extremely limited circumstances, when, to protect the life of the mother, an abortion is lawful. In Attorney General v X [1992] 1 IR 1 the Chief Justice stated at p 53: 

"I, therefore, conclude that the proper test to be applied is that if it is established as a matter of probability that there is a real and substantial risk to the life, as distinct from the health, of the mother, which can only be avoided by the termination of her pregnancy, such termination is permissible, having regard to the true interpretation of Article 40.3.3 of the Constitution." 

The premiss in Open Door Counselling 1988 being in error the decision flowing therefrom is flawed. 

2. Constitution right to information about the availability of abortions outside the State. 

The right to information was considered in the Open Door Counselling 1988 (following the words quoted previously) at p 625: 

"It must follow from this that there could not be an implied and unenumerated constitutional right to information about the availability of a service of abortion outside the State which, if availed of, would have the direct consequence of destroying the expressly guaranteed constitutional right to life of the unborn." 

As this conclusion rested on the flawed premiss that abortion is never lawful, by inference not even to protect the life of the mother, then equally such determination following thereon as to information is also in error. As there are extremely limited circumstances when, to protect the life of the mother, abortion is lawful, it follows that there is at least a right to information in such cases and a corollary right to give the information. 

3. Right to information arising in other sections of the Constitution. 

The right to information was also related to Article 40.6.1 ie the right of citizens to express freely their convictions and opinions. At p 625 it was held: 

"As part of the submission on this issue it was further suggested that the right to receive and give information which, it was alleged, existed and was material to this case was, though not expressly granted, impliedly referred to or involved in the right of citizens to express freely their convictions and opinions provided by Article 40, s 6, sub-s 1 of the Constitution, since, it was claimed, the right to express freely convictions and opinions may, under some circumstances, involve as an ancillary right the right to obtain information. I am satisfied that no right could constitutionally arise to obtain information the purpose of the obtaining of which was to defeat the constitutional right to life of the unborn child. This ground of appeal, therefore, fails." 

The absolutism of the approach to the rights of the unborn, and the failure to acknowledge the duty to protect the life of the mother, undermines this statement of law. It is illogical and incorrect to analyse the situation and determine that there can be no information given to or received by a party to actions which may include situations where the actions are lawful. The fact that there is constitutional provision to protect the life of the mother means that there is a corollary right to relevant information. To deny a right under the Constitution to information on the basis that another constitutional right exists, without any attempt at harmonising the rights, is to fall into error. 

4. Abstract analysis of right to life of the unborn. 

The Open Door Counselling 1988 was decided on abstract facts as part of an analysis of the rights of the unborn. It is a grave disadvantage to a case not to be founded on particular facts relative to the parties. Because of the nature of the case, the way it was presented, there is throughout an air of unreality. The abstract nature of the case meant that the issues were neither fully argued nor fully considered. This is evidenced by the subsequent decision in AG v X. The fundamental flaws in Open Door Counselling 1988 were exposed by the decision in AG v X. The reasoning in Open Door Counselling 1988 has infact already been superseded by that case. 

5. "Due regard to the equal right to life of the mother." 

The Eighth Amendment now incorporated in the Constitution in Article 40.3.3 refers to two rights to be protected. On the one hand there is "the right to life of the unborn". On the other hand there is "due regard to the equal right to life of the mother." The equal right to life of the mother did not arise for interpretation in Open Door Counselling 1988. It was stated at p 621: 

"It was not part of the facts of this case nor of the submissions of the defendants that the service which they were providing for pregnant women in relation to the obtaining of abortion outside this jurisdiction was in any way confined to, or especially directed towards, the due regard to the equal right of life of the mother mentioned in the subsection of the Constitution which I have already quoted, and this portion of that subsection did not therefore arise for interpretation or decision in this case." 

The consideration of one right in isolation, to the exclusion of consideration of the due regard to the equal right to life of the mother, is a flaw in the reasoning and decision. The question of information may affect the right of life of the mother. The decision resulted in an order relevant to women, including pregnant women who, applying the test in AG v X, are in a situation where there is as a matter of probability a real and substantial risk to their life. 

To analyse the question of information by reference solely to the rights of the unborn is flawed reasoning. The failure to consider the right to life of the mother resulted in a defect in that it lead to an order which in certain circumstances would endanger that right. This flaw is thus a reason to reconsider the constitutional position. 

6. Scope of the Order. 

The injunction granted by the Supreme Court in the Open Door Counselling 1988 was very broad. Its terms are set out earlier in this judgment. 

This order would include a prohibition on information to a pregnant woman who is seeking a life-preserving abortion. It is not unconstitutional to give information to a person, or receive information, of a constitutional activity. Consequently, the injunction is too broad and encompasses activity which it should not and therefore is erroneous. 

The absolute and broad nature of the injunction was noted by the European Court of Human Rights in Open Door Counselling and Dublin Well Woman v Ireland [1992] 15 EHRR 244 at p 266. 

"73. The Court is first struck by the absolute nature of the Supreme Court injunction which imposed a 'perpetual' restraint on the provision of information to pregnant women concerning abortion facilities abroad, regardless of age or state of health or their reasons for seeking counselling on the termination of pregnancy. The sweeping nature of this restriction has since been highlighted by the case of The Attorney General v X and others and by the concession made by the Government at the oral hearing that the injunction no longer applied to women who, in the circumstances as defined in the Supreme Court's judgment in that case, were now free to have an abortion in Ireland or abroad. 

74. On that ground alone the restriction appears over-broad and disproportionate. Moreover, this assessment is confirmed by other factors." 

While that decision is not part of our domestic law it is a persuasive analysis of the situation. It is clear that the injunction is over-broad. I conclude that the decision in Open Door Counselling 1988 was in error on this ground also. 

In light of the analysis of the over-broad scope of the decision in Open Door Counselling 1988 it is appropriate to note that the order made by the Learned Trial Judge in this case extends not only to the Defendants, their servants or agents but also to "anyone having knowledge of this Order". It is thus even broader than that in Open Door Counselling 1988. 

7. Inveterate. 

The reasoning in Mogul of Ireland Ltd v Tipperary (North Riding) County Council [1976] IR 260 at p 272-3 by Henchy J where he outlined the situation where a court may follow a previous decision even if it was wrong, if it has become inveterate and people have acted on it to such an extent that greater harm would result from overruling it, does not apply. In this case at issue are extant constitutional rights. It would not be constitutional or just to deny these rights. 

Conclusion on stare decisis. 

In conclusion, for the reasons stated above, I am clearly of the opinion that Open Door Counselling 1988 was an erroneous decision and should not be followed. Thus, the Order by the Learned High Court Judge based on the said case should not be confirmed. 

The law relevant to this case. 

The next issue is whether the appropriate law is that of 1992 or 1997. I am satisfied that the appropriate law to determine the validity of the injunction is the current law as at issue are constitutional rights and duties in an ongoing situation. These constitutional rights and duties must be protected in accordance with the constitutional law as it stands. 

The current law includes the 13th and 14th Amendments to the Constitution which added to Article 40.3.3: 

"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 'conditions laid down by law' appear in Regulation of Information (Services outside the State for Termination of Pregnancies) Act, 1995. It has been determined in In re Article 26: Regulation of Information (Services outside the State for Termination of Pregnancies) Bill, 1995 [1995] 1 IR 1 that this Bill was not repugnant to the provisions of the Constitution. It was held that in passing the Bill the Oireachtas has been 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. Hamilton CJ stated at p 53: 

"The requirement that the information to be given relates only to services lawfully available outside the State, 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 Oireachtas 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." 

This, together with the Constitution, is the current law relevant to the provision of information. This is the applicable law, not that of 1992, to the order in issue. In view of the current law the Order made by the High Court cannot be confirmed. It is not necessary for the purpose of this application to draw the boundaries of the extant law. 

The injunction should not be upheld by this Court. I would allow the appeal. 

BLAYNEY J: The full history and background of this appeal are set out in detail in the judgment of the Chief Justice and it is not necessary for me to repeat them. 

The principal ground on which the appellants sought to have the decision of Morris J set aside was that the learned trial judge was wrong to follow the decision of this Court in The Attorney General (at the Relation of the Society for the Protection of Unborn Children Ireland Limited) v Open Door Counselling Limited and Dublin Well Woman Centre Limited [1988] IR 593 (hereinafter referred to as the Open Door case). It was submitted that that case was wrongly decided and its decision should now be overruled. I agree with the Chief Justice that it should not be. 

One of the issues in the Open Door case was whether it was lawful for the defendants to provide pregnant women with the names and addresses of abortion clinics in the United Kingdom where abortions were performed. It was submitted by the defendants that pregnant women had an implied constitutional right to such information. Finlay CJ, with whose judgment the entire Court concurred, dealt with this submission as follows at p 625 of the report: 

"Alleged constitutional right to information about the availability of abortions outside the State. 

The performing of an abortion on a pregnant woman terminates the unborn life which she is carrying. Within the terms of Article 40, s 3 sub-s 3 it was a direct destruction of the constitutionally guarantee to life of that unborn child. 

It must follow from this that there could not be an implied and unenumerated constitutional right to information about the availability of a service of abortion outside the State which, if availed of, would have the direct consequence of destroying the expressly guaranteed constitutional right to life of the unborn. As part of the submission on this issue it was further suggested that the right to receive and give information which, it was alleged, existed and was material to this case, was, though not expressly granted, impliedly referred to or involved in the right of citizens to express freely their convictions and opinions provided by Art 40, s 6, sub-s 1 of the Constitution, since, it was claimed, the right to express freely convictions and opinions may, under some circumstances, involve as an ancillary right the right to obtain information. I am satisfied that no right could constitutionally arise to obtain information the purpose of obtaining of which was to defeat the constitutional right to life of the unborn child. This ground of appeal, therefore, fails." 

It was submitted by Mr Rogers, on behalf of the appellants, that the approach of the Chief Justice was wrong, that he had approached the issue on the basis of a hierarchy of rights, namely, that the right to life came before the right to information. It was submitted that the Chief Justice did not seek to harmonise the conflicting rights as he ought to have. 

This submission assumes that there was in fact a conflict. But it is clear from what the Chief Justice said that there was not. He expressly excluded the possibility of there being any constitutional right to information the purpose of obtaining which was to defeat the constitutional right to life of the unborn child. Since there was no such right there was never any question of there being a conflict between it and the right to life of the unborn. 

But even if one were to accept that there could be a constitutional right to information in such circumstances, I think it is clear that the right to life of the unborn child would prevail over it. In the case of The Attorney General v X [1992] 1 IR 1 Finlay CJ said in his judgment at p 57: 

"I accept that where there exists an interaction of constitutional rights the first objective of the courts in interpreting the Constitution and resolving any problem thus arising should be to seek to harmonise such interacting rights. There are instances, however, I am satisfied, where such harmonisation may not be possible and in those instances I am satisfied, as the authorities appear to establish, that there is a necessity to apply a priority of rights. 

Notwithstanding the very fundamental nature of the right to travel and its particular importance in relation to the characteristics of a free society, I would be forced to conclude that if there were a stark conflict between the right of a mother of an unborn child to travel and the right to life of the unborn child, the right to life would necessarily have to take precedence over the right to travel. I therefore conclude that the submission made that the mother of the unborn child had an absolute right to travel which could not be qualified or restricted, even by the vindication or defence of the right to life of the unborn, is not a valid or sustainable submission in law." 

If there were a constitutional right to information, it must in my opinion rank lower than the right to travel, and since the latter would have to give way to the right to life of the unborn, the right to information would have to give way also. 

For these reasons I am satisfied that it has not been shown that the Open Door case was wrongly decided and I reject the appellants' submissions on this issue. 

I now turn to consider what seems to me to be the substantial issue in this appeal: whether this Court, following the decision in the Open Door case, should confirm the injunction granted by the learned trial judge. 

Mr Rogers contended that we should decide the appeal in accordance with the law as it stood when the case came before the learned trial judge in August 1992. If this contention is correct, and the Court were to follow the decision in the Open Door case, the logical conclusion would appear to be that the injunction should be confirmed. However, it seems to me that Mr Rogers' submission is not correct. 

This appeal is against the granting of an injunction which is an equitable remedy and is discretionary. Furthermore, in the case of injunctions, as is stated in Bean on Injunctions (7th edition 1996) at page 14 "The Court must make its decision by reference to the state of the law at the date when the question has to be resolved and not the date when the writ was issued." The authority cited for this statement of the law is Application DES GAZ SA v Falks Veritas Limited [1974] Ch 381. The plaintiff was a French company which issued a writ in April 1972 seeking inter alia an injunction for breach of copyright. Before the action came on for trial the United Kingdom became a member of the European Economic Community and the defendants applied for leave to amend their defence and counterclaim to allege "concerted practices" and "abuse of dominant position" by the plaintiff company contrary to Articles 85 and 86 of the Treaty of Rome. The defendants were granted leave to amend and the plaintiffs' appeal against this order was dismissed by the Court of Appeal. They held that where a plaintiff claimed relief in the form of an injunction the question whether it should be granted had to be determined by reference to the state of the law at the date when the question came to be decided and not at the date when the writ was issued. Lord Denning MR said in his judgment at p 392: 

"In general, when the law is altered during the pendency of an action, the rights of the parties are decided according to the law as it existed when the action was begun, unless the new statute, on its true intendment, shows an intention to vary such rights: see Hutchinson v Jauncey [1950] 1 KB 574 and Wilson v Dagnall [1972] 1 QB 509, but in this case the French Gaz company claim an injunction. They seek to prevent the English Veritas company in the future from making or selling the orange Veritas tins. If an injunction is granted, it will operate from the date of trial onwards. In my opinion that point -- an injunction or not -- will have to be decided according to the law as it stands at the date of the trial. The French Gaz company's counsel recognised this, but he urged that the amendment should await that time." 

And Stamp LJ said in his judgment at p 399: 

"It was submitted that the rights and liabilities of the parties fall to be determined as at the date of the issue of the writ and that it would be wrong to allow an amendment to the defence based on subsequent legislation. I do not find it necessary to discuss the limitations on or the exceptions to that principle: for it is abundantly clear that the question whether an injunction ought to be granted is one which falls to be determined by reference to the circumstances and the state of the law existing at the date when the question falls to be determined and not at the date of the issue of the writ." 

I am satisfied that the passages cited are a correct statement of the law. It follows that in considering whether the injunction granted by the learned trial judge should be confirmed or not, the Court must look at what the present state of the law is in regard to providing information here in regard to abortion services in the United Kingdom and not at what it was at the time the proceedings commenced. 

There have been two significant changes in the law since August 1992. Firstly, there has been the Fourteenth Amendment of the Constitution whereby Art 40.3.3. was amended by the addition of a paragraph dealing specifically with the right to make information available and secondly, the Regulation of Information (Services Outside the State for Termination of Pregnancies) Act, 1995 (hereinafter referred to as the 1995 Act) was passed on the 12 May 1995 and laid down the conditions which must be observed in the giving of information. 

The paragraph added to Art 40.3.3. by the Fourteenth Amendment is as follows: 

"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 effect of this amendment was to make lawful the type of information being published by the appellants "subject to such conditions as may be laid down by law". These conditions are now laid down in the Regulation of Information Act 1995. 

It was submitted by Mr Murphy, junior counsel, on behalf of the respondent that the information being published by the appellants does not comply with the conditions laid down by the 1995 Act, and in particular that it does not comply with the conditions contained in ss 4 and 5, so in effect the appellants were claiming that they are entitled to act in breach of the law. Mr Murphy further submitted that notwithstanding the amendment of the Constitution, and the passing of the 1995 Act, the substance of the law remained the same and the appellants are therefore precluded from acting in the way they are. Mr Murphy submitted that the 1995 Act maintained the status quo. 

In response to Mr Murphy's submissions on this issue, Mr Rogers submitted that the only evidence before the Court was of the situation in 1992, and that it was possible that what was being done then by the appellants then may have been abandoned. He argued that the proper course for the Court to take was to make a ruling one way or the other on the findings of the learned trial judge. As regards the Regulation of Information Act 1995, he submitted that it is a self-contained code which does not confer any jurisdiction on the courts to make orders inter partes. S 10 makes contraventions of the Act criminal offences. The respondents' correct course, he said, if they considered that the appellants were acting in breach of the 1995 Act was to apply to the appropriate authorities to institute criminal proceedings. 

Having carefully considered the relevant law as it now is, and counsel's submissions, the conclusion I have reached is that this Court should not continue the injunction granted by the learned trial judge. 

It seems to me that the legal position may be summarised in a few very brief words. The appellants are either complying with the conditions set out in the 1995 Act or they are not. If they are complying with those conditions, they are protected by the Fourteenth Amendment of the Constitution. If they are not complying with them, they are committing criminal offences and the only party who has the right to obtain an injunction against them is the Attorney General (see Attorney General v Paper Link Limited [1984] ILRM 373). 

As a result of the Fourteenth Amendment and the passing of the 1995 Act, the legal position has been wholly altered since the proceedings were instituted. At that time the appellants' activities were unlawful as being in breach of the constitutional right to life of the unborn, but they were not criminal. At the present time, their activities are either lawful or criminal and whichever it is, they cannot be restrained by the respondent. Since the Court, in considering whether an injunction should be granted, must look at the law as it is now, and not as it was when the proceedings were commenced, I am satisfied that the injunction granted by the trial judge cannot be continued and I would allow the appeal to the extent of lifting the injunction. I have come to this conclusion solely because of the change in the law since the decision in the High Court and I am satisfied that that decision, when given, was correct. 

KEANE J: The facts relevant to this appeal are fully set out in the judgment of the Chief Justice and need not be repeated. It is, however, relevant to draw attention to what might be described as the most significant legal landmarks which have preceded the hearing in this court. 

The logical starting point is s 58 of the Offences Against the Person Act 1861 which provides that:- 

"every woman being with child, who, with intent to procure her own miscarriage, shall unlawfully administer to herself any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, and whosoever, with intent to procure the miscarriage of any woman, whether she be or be not with child, shall unlawfully administer to her or cause to be taken by her any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, shall be guilty of felony, and being convicted thereof shall be liable, at the discretion of the court, to be kept in penal servitude for life . . . or to be imprisoned for any term, not exceeding two years . . ." 

Section 59 of the same Act provides that:- 

"whosoever shall unlawfully supply or procure any poison or other noxious thing, or any instrument or thing whatsoever, knowing that the same is intended to be unlawfully used or employed with intent to procure the miscarriage of any woman, whether she be or be not with child, shall be guilty of a misdemeanour, and being convicted thereof shall be liable . . . to imprisonment for any term not exceeding two years . . ." 

In R v Bourne [1939] 1 KB 687, the defendant, an obstetrician at St Mary's Hospital, in London, was charged with having used a instrument with intent to procure the miscarriage of a young girl, contrary to the provisions of s 58. The facts in the case were that the girl, who was then under the age of 15, had been raped with great violence by a man who was in due course convicted of the crime. As a result of the rape, the girl became pregnant and her case was brought to the attention of the defendant, who, after examination of the girl, performed the operation with the consent of her parents. The defendant gave evidence that in his opinion the continuance of the pregnancy would probably cause serious injury to the girl, injury so serious as to justify the termination of the pregnancy at a time when the operation could be performed without any risk to her and under favourable conditions. That view was confirmed by two independent experts one of whom, a specialist in medical psychology, expressed the view that, if the girl gave birth to a child, the consequence was likely to be that she would become "a mental wreck". 

McNaghten J directed the jury as follows:- 

"the burden rests on the Crown to satisfy you beyond reasonable doubt that the defendant did not procure the miscarriage of the girl in good faith for the purpose only of preserving her life. If the Crown fails to satisfy you of that, the defendant is entitled by the law of this land to a verdict of acquittal. If, on the other hand, you are satisfied that what the defendant did was not done by him in good faith for the purpose only of preserving the life of the girl, it is your duty to find him guilty. It is said, and I think said rightly, that this is a case of great importance to the public and, more especially, to the medical profession; but you will observe that it has nothing to do with the ordinary case of procuring abortion to which I have already referred. In those cases the operation is performed by a person of no skill, with no medical qualifications, and there is no pretence that it is done for the preservation of the mother's life. Cases of that sort are in no way affected by the consideration of the question which is put before you today." 

Having gone on to point out that there had been much discussion in the case as to the difference between "danger to life" and "danger to health" and expressed his view that the words "for the purpose of preserving the life of the mother" should be given "a reasonable interpretation" by the jury, he went on:- 

"if the doctor is of opinion, on reasonable grounds and with adequate knowledge, that the probable consequence of the continuance of the pregnancy will be to make the woman a physical or mental wreck, the jury are quite entitled to take the view that the doctor who, under those circumstances and in that honest belief, operates, is operating for the purpose of preserving the life of the mother." 

Bourne's case does not appear to have been considered by any Irish court (save for a brief reference in the judgment of Hamilton P, as he then was, in AG (SPUC) v Open Door Counselling Limited, [1988] IR 593,) until the decision of this court in X v Attorney General, [1992] 1 IR 1. 

That is not to say, of course, that illegal abortions were not being performed in Ireland in the past. However, the situation changed radically following the enactment in Great Britain of the Abortion Act 1967 and the growing ease of travel between the two islands. 

The Offences Against the Person Act, 1861, remains in force in this country and indeed s 10 of the Health (Family Planning) 1979 made it clear that nothing in the Act was to be construed as authorising 

"(a) the procuring of abortion, 

(b) The doing of any other thing, the doing of which is prohibited by s 58 or 59 of the Offences Against the Person Act 1861 . . . or 

(c) The sale, importation into the State, manufacture, advertising or display of abortfacients." 

Prior to the enactment by the people of the Eighth Amendment to the Constitution in 1983, there were serious doubts as to whether the approach to the law in Bourne's case was consistent with the Constitution. In McGee v The Attorney General [1974] IR 284 Walsh J said:- 

"any action on the part of either the husband and wife or of the State to limit family sizes by endangering or destroying human life must necessarily not only be an offence against the common good but also against the guaranteed personal rights of the human life in question." 

Similarly, in the course of his judgment in Norris v The Attorney General reported in [1984] IR 36 but decided prior to the enactment of the Eighth Amendment, McCarthy J said:- 

"for myself I am content to say that the provisions of the preamble, which I have quoted earlier in this judgment, would appear to lean heavily against any view other than that the right to life of the unborn is a sacred trust to which all the organs of Government must lend their support." 

Those views, essentially resting on the premiss that the right to life of the foetus is one of the unenumerated rights protected by Article 40.3.1o, were obiter. As will be seen, differing views were expressed in this court in X v Attorney General as to whether, prior to the enactment of the Eighth Amendment, the interpretation given in Bourne's case to the 1861 Act represented the law in Ireland. All one can say with confidence at this stage is that the preponderance of judicial opinion would suggest that the Bourne approach could not have been adopted in this country consistently with the Constitution prior to the Eighth Amendment. 

That amendment (contained in Article 40.3.3o) is 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 amendment was considered by the High Court and the Supreme Court in Attorney General (SPUC) v Open Door Counselling Limited, which was inevitably the subject of much discussion in the present case. The facts as found in the High Court and summarised in the judgment of Finlay CJ in this court are obviously of critical importance and are as follows:- 

"The defendant Open Door Counselling Limited:- 

(a) By its servants or agents, counsels in a non-directive manner pregnant women resident in Ireland and the counselling takes place in Dublin. 

(b) Abortion or termination of pregnancy may be one of the options discussed within that counselling. 

(c) If a pregnant woman wants to consider the abortion options further, this defendant will arrange to refer her to a medical clinic in Great Britain. 

(d) This defendant's servants or agents inspect the medical clinic in Great Britain to satisfy themselves that the clinic operates at the highest standard. 

(e) At these clinics abortions have been performed on pregnant woman who have been previously counselled by this defendant. 

(f) Pregnant women resident in Ireland have been referred to medical clinics in Great Britain where abortions have been performed for many years, including the months of November and December 1984." 

Broadly similar findings of fact were made in respect of the second named defendant in those proceedings, the Well Woman Centre Limited. 

The relief given to the plaintiff in that case, as varied by the order of this court, was a declaration:- 

"that the activities of the defendant, their servants or agents in assisting pregnant women within the jurisdiction to travel abroad to obtain abortions by referral to a clinic; by the making of their travel arrangements, or by informing them of the identity and location of and method of communication with a specified clinic or clinics are unlawful, having regard to the provisions of Article 40, s 3 sub-s 3 of the Constitution." 

An injunction perpetually restraining the defendants from so assisting pregnant woman was also granted. 

In the High Court, Hamilton P, as he then was, expressed his conclusions (at p 617) as follows:- 

"I am satisfied that the activities of both defendants, through their servants and agents amount to counselling and assisting pregnant women to travel abroad to obtain further advice on abortion and to secure an abortion. Are such activities unlawful having regard to the provisions of Article 40, s 3 sub-s 3 of the Constitution of Ireland? 

"I have no doubt but that they are. 

"In this Article the State acknowledges the right to life of the unborn and, with due regard to 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 such rights. 

"I do not, in the circumstances of this case, have to have regard to the effect of 'the equal right to life of the mother' on the right to life of the unborn acknowledged by this Article. 

"As I have already stated, that right to life of the unborn includes the right to have that right preserved and defended and to be guarded against all threats to its existence before and after birth, and that it lies not in the power of a parent to terminate its existence and that any action on the part of any person endangering that life was necessarily not only an offence against the common good but also against the guaranteed personal rights of the human life in question . . . 

"The qualified right to privacy, the rights of association and freedom of expression and the right to disseminate information cannot be invoked to interfere with such a fundamental right as the right to life of the unborn, which is acknowledged by the Constitution of Ireland." 

Those conclusions were unanimously upheld by this court. Speaking for the court, Finlay CJ said:- 

"It was not part of the facts of this case nor of the submissions of the defendants that the service which they were providing for pregnant woman in relation to the obtaining of abortions outside this jurisdiction was in any way confined to, or especially directed towards, the due regard to the equal right of life of the mother mentioned in the subsection of the Constitution which I have already quoted, and this portion of that subsection did not therefore arise for interpretation or decision in this case." 

The learned Chief Justice, having gone on to consider certain legal aspects of the case, not all of which arise for consideration in this case, went on to say that:- 

"I am satisfied beyond doubt that having regard to the admitted facts the defendants were assisting in the ultimate destruction of the life of the unborn by abortion in that they were helping the pregnant woman who had decided upon that option to get in touch with a clinic in Great Britain which would provide the service of abortion." 

On the issue which was of central importance in this case, he had this to say:- 

"Alleged Constitutional Right to Information about the Availability of Abortions outside the State 

"The performing of an abortion on a pregnant woman terminates the unborn life which she is carrying. Within the terms of Article 40, s 3, sub-s 3 it is a direct destruction of the constitutionally guaranteed right to life of that unborn child. 

"It must follow from this that there could not be an implied and unenumerated constitutional right to information about the availability of a service of abortion outside the State which, if availed of, would have the direct consequence of destroying the expressly guaranteed constitutional right to life of the unborn. As part of the submission on this issue it was further suggested that the right to receive and give information which, it was alleged, existed and was material to this case was, though not expressly granted, impliedly referred to or involved in the right of citizens to express freely their convictions and opinions provided by Article 40, s 6, subs 1 of the Constitution, since, it was claimed, the right to express freely convictions and opinions may, under some circumstances, involve as an ancillary right the right to obtain information. I am satisfied that no right could constitutionally arise to obtain information the purpose of the obtaining of which was to defeat the constitutional right to life of the unborn child." 

After that case had been decided, the plaintiffs instituted the present proceedings. As is clear from the recital of the facts in the judgments already given, however, the activities of the defendants in these proceedings went considerably further than the form of counselling restrained in Open Door Counselling, consisting as it did of the publication and distribution of information as to the identity, location of and method of communication with specified abortion clinics in England. It will be necessary at a later point to refer to the judgment of Morris J on the plenary hearing in the High Court from which the present appeal is taken. Before doing so, however, the decision in Attorney General v X, which was pronounced after the grant of an interlocutory injunction by this court but before the plenary hearing in the High Court, must be considered. 

The facts in that case are so well known that they need not be set out again. It was held by this court (Hederman J dissentiente), in allowing the appeal, that Article 40.3.3o permitted the termination of a pregnancy when it was established as a matter of probability that there was "a real and substantial risk" to the life of the mother if such termination was not effected. The majority rejected the submission advanced on behalf of the Attorney General that such a termination was only lawful if it was established that the continuation of the life of the foetus constituted a risk of 'immediate or inevitable death' to the mother. So to hold, it was said, would not be to have due regard to the equal right to life of the mother and, in such circumstances, it was not practicable to uphold the right to life of the foetus. 

In the course of his judgment, Finlay CJ said:- 

"In vindicating and defending as far as practicable the right of the unborn to life but at the same time giving due regard to the right of the mother to life, the court must, amongst the matters to be so regarded, concern itself with the position of the mother within a family group, with persons on whom she is dependant, with, in other instances, persons who are dependant upon her and her interaction with other citizens and members of society in the areas in which her activities occur. Having regard to that conclusion, I am satisfied that the test proposed on behalf of the Attorney General that the life of the unborn could only be terminated if it were established that an inevitable or immediate risk to the life of the mother existed, for the avoidance of which a termination of the pregnancy was necessary, insufficiently vindicates the mother's right to life. 

"I, therefore, conclude that the proper test to be applied is that if it is established as a matter of probability that there is a real and substantial risk to the life, as distinct from the health, of the mother, which can only be avoided by the termination of her pregnancy, such termination is permissible, having regard to the true interpretation of Article 40, s 3 sub-s 3 of the Constitution." 

In that judgment, Finlay, CJ said that he was satisfied that, while it was the first objective of the courts in resolving any problem arising from the interaction of constitutional right to seek to harmonise them, there were instances where such harmonisation might not be possible, in which case it was necessary to apply "a priority of rights". McCarthy J, while agreeing with the Chief Justice as to the "real and substantial risk to life" test, adopted a different approach to the question of resolving apparently conflicting constitutional rights, saying that, in his view, the authorities did not indicate 

"a hierarchy of rights but, rather, the reconciliation of them." 

In agreeing with the conclusion of the Chief Justice as to the appropriate test to be applied in that case, he added:- 

"this conclusion leads inevitably to the recognition that the wording of the amendment contemplates abortion lawfully taking place within this State." 

He also expressed a clear view, that, prior to the enactment of the Eighth Amendment, abortion, for any purpose, was unlawful. 

O'Flaherty J, while agreeing with the "real and substantial risk to life" test, expressed no opinion on the "hierarchical" approach to competing constitutional rights. Egan J, while also accepting that test and that a hierarchy of constitutional rights existed, added: 

"this cannot be taken to mean that an immutable list of precedence of rights can be formulated." 

It would appear that Egan J was of the view that Bourne's case was the law prior to the enactment of the Eighth Amendment. 

Hederman J dissented from the majority in holding that:- 

"before that decision [to terminate a pregnancy] is taken it is obvious that the evidence required to justify the choice being made must be of such a weight and cogency as to leave open no other conclusion but that the consequences of the continuance of the pregnancy will, to an extremely high degree of probability, cost the mother her life and that any such opinion must be based on the most competent medical opinion available." 

He concluded that there had not been such evidence before the High Court in that case. 

Hederman J, who conducted the most detailed analysis of the decision in Bourne's case, was in agreement with McCarthy J that it did not represent the law in Ireland prior to the Eighth Amendment. 

It remains to note that, in the course of his judgment, O'Flaherty J, observed that:- 

"promotional propaganda in respect of abortions abroad is prohibited. The Attorney General (SPUC) v Open Door Counselling Limited [1988] IR 593. " [Emphasis added] 

The course of the proceedings in the present case, culminating in the judgment of Morris J in the High Court, have already been fully set out in the judgment of the Chief Justice. Some significant developments which followed that judgment must also be mentioned, although the extent to which they are relevant to the present proceedings is a matter for argument. In 1992, as the result of a referendum, the following additional paragraphs were added to Article 40.3.3o:- 

"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 conditions referred to in the Fourteenth Amendment to the Constitution were purportedly prescribed by the Information (Services outside the State for the Termination of Pregnancies) Bill, 1995, which was passed by both Houses of the Oireachtas but referred to this court by the President for an opinion as to its validity pursuant to Article 26 of the Constitution. 

The Chief Justice in delivering the opinion of the court (In Re: Article 26 of the Constitution and the Regulation of Information (Services Outside the State for the Termination of Pregnancies) Bill [1995] IR 1 said:- 

"If the purpose of . . . travel or the securing of information is to procure an unlawful abortion, then it would be unlawful having regard to the provision of Article 40.3.3o of the Constitution, but if the purpose was the procurement of a permitted or lawful abortion, ie one that complies with the test laid down in Attorney General v X then neither the travel nor the giving or obtaining of information with regard thereto would be unlawful." 

Having considered the arguments advanced by two teams of counsel and the Attorney General, the court went on to uphold the validity of the bill which was then signed by the President and became law. 

In the course of his judgment in this case, Morris J identified what he described as a "profound distinction" between the distribution of the information in the present case and the communication of that information to what he described as a "clearly defined and extremely restricted type of person identified in the test," ie pregnant women coming within the criteria laid down in Attorney General v X. I think, however, that it is quite clear that, apart altogether from that distinction which he drew, Morris J would have considered himself bound by the decision of this court in Open Door Counselling Limited to grant the perpetual injunction sought in this case. He was undoubtedly correct in so holding, but the Defendants have submitted that the latter case was wrongly decided by this court and should be overruled. If that submission of the Defendants is not well founded, it would follow inevitably that the decision of Morris J should be upheld by this court. Accordingly, the first question that arises is as to whether that case was wrongly decided. 

In approaching that question, it is necessary at the outset to examine the circumstances in which this court will exercise the freedom to depart from the strict application of the rule of stare decisis first referred to in The State (Quinn) v Ryan [1965] IR 70 and Attorney General v Ryan's Car Hire Limited (1965) IR 642. 

The Chief Justice has referred in his judgment to the following statement of the law by Henchy J in Mogul of Ireland Limited v Tipperary (North Riding) Co Council [1976] IR 260: 

"a decision of the full Supreme Court . . . given in a fully argued case and on a consideration of all the relevant materials, should not normally be over-ruled merely because a later court inclines to a different conclusion." [Emphasis supplied] 

That statement, carefully worded as it is, was not intended, I would respectfully suggest, to apply to every invitation to this court to reconsider a previous decision, irrespective of the specific context in which the earlier decision was reached. Such an approach, in my view, would have more in common with the old unbending approach to stare decisis in this court than with the new found flexibility heralded by the State (Quinn) v Ryan. It is to be observed that Mogul of Ireland was a case concerning the interpretation of a particular statutory code affecting a limited and defined section of the community (those whose property had been maliciously injured and the local authorities obliged to compensate them), a construction which had been adopted and applied for many decades and had been unanimously upheld by the former Supreme Court. It was in that context that Henchy J observed:- 

"even if the later court is clearly of opinion that the earlier decision was wrong, it may decide in the interests of justice not to overrule it if has become inveterate and if, in a widespread or fundamental way, people have acted on the basis of its correctness to such an extent that greater harm would result from overruling it than from allowing it to stand. In such cases the maxim communis error facit jus applies . . ." 

The contrast with the present case is plain. In this case, the court is concerned with the constitutional rights, not merely of every woman of child bearing age and of the embryos and foetuses which they are carrying, but of the even wider range of citizens who will be affected, identified by Finlay CJ in the Attorney General v X in the passage to which I have already referred. The recent history of the jurisprudence of this court affords a number of instances in which the possible infringement of the constitutional rights of citizens or other weighty constitutional considerations have been seen as justifying a departure from earlier decisions of this court: see McGimpsey v Ireland [1990] 110 IR 129; The People v Kenny [1990] 2 IR 110; Finucane v McMahon [1990] 1 IR 165. It is true that, in some at least of those decisions, dissenting opinions had been voiced, whereas in Open Door Counselling the judgment of Finlay CJ was concurred in without reservation by the other four members of the court. I do not think, however, that the absence of dissent in the earlier decision can be regarded as foreclosing any further judicial determination of the issue at the level of this court, particularly when constitutional rights and their protection are in issue. So to hold would be seriously to encroach on the role of this court as the guardian of last resort of the Constitution and might oblige it to perpetuate an erroneous interpretation of the Constitution. 

In considering the question as to whether Open Door Counselling was correctly decided, the complex and much debated problem presented by what appear to be conflicting constitutional rights inevitably arises. The "hierarchical" approach adopted in DPP v Shaw [1982] IR 1 at first sight presents an attractive solution to the problem, particularly where the right to life is involved. As Hederman J observed in Attorney General v X: 

"the objective of protecting human life . . . is the essential value of every legal order and central to the enjoyment of all other rights guaranteed by the Constitution." 

What is at issue in this case, however, as it was in Open Door Counselling and Attorney General v X, is not the identifiable superiority of one constitutional right (such as the right to life) to another: it is whether the duty to protect and vindicate that highest of constitutional rights may sometimes have to be reconciled with the exercise of other constitutional rights and duties with which it is in conflict. 

The right to life itself, in other words, is not an absolute right, as the Constitution itself acknowledges, by implicitly recognising the right of the State to provide for capital punishment: see Articles 13.6 and 40.4.5o. The same legal considerations underlie the right of the security forces of the State, in extreme circumstances, to take human life and the right of self defence involving, again in extreme circumstances, the killing of another human being, aspects of our law the constitutionality of which has never been challenged. 

The task of the courts in cases such as the present, accordingly, is not simply to determine whether one constitutional right can properly be regarded as superior to another in the hierarchy of such rights. It is rather to decide whether, in the specific circumstances of a particular case, a constitutional right, such as the right to life of the unborn, can enjoy the protection which would normally be available to it, having regard to the paramount necessity to uphold the Constitution as a whole. 

Those considerations apply with particular force in the present case where we are concerned with a provision of the Constitution which makes it clear that the right thereby acknowledged and guaranteed is protected only to the extent that such protection is consistent with "due regard to the equal right to life of the mother" and, in any event, only to the extent that its protection is "practicable". 

In this case, the court is concerned with the relationship between the right to life of the unborn and the right to communicate (and the corresponding right to receive) information rather than with that between the right to life of the unborn and the equal right to life of the mother. 

It was held by Costello J as he then was, in Attorney General v Paperlink Limited [1984] ILRM 373 that what he described as "the very general and basic human right to communicate (information)" was not guaranteed by Article 40.6.1oi, dealing with freedom of expression, but was one of the unenumerated rights protected by Article 40.3.1o. It is a necessary corollary of that proposition that other citizens have a constitutional right to receive such information. As was pointed out by the court in the passage already cited in In Re: Article 26 of the Constitution and the Regulation of Information (Services outside the State for the Termination of Pregnancies) Bill 1995, even prior to the Fourteenth Amendment the obtaining of information with regard to permitted or lawful abortions was not unlawful. 

The extract which I have already cited from the judgment of the learned Chief Justice in Open Door Counselling is, in my view, only consistent with the right to life of the unborn being regarded as an absolute right which must be protected in every case, notwithstanding the existence of other relevant constitutional rights. In the context of the present proceedings, it is necessary, at the risk of repetition, to refer again to the concluding sentence in that passage:- 

"I am satisfied that no right can constitutionally arise to obtain information the purpose of the obtaining of which was to defeat the constitutional right to life of the unborn child." 

That unequivocally worded statement admits of no exception or qualification in the case of information afforded to pregnant women with a view to the obtaining of an abortion in circumstances where the purpose was the procurement of an abortion that complied with the test laid down in Attorney General v X. As a statement of the law, it is, in my respectful view, impossible to reconcile with the decision of this court in the Attorney General v X and the statement I have already quoted from the opinion of the court in In Re Article 26 of the Constitution and the Regulation of Information (Services Outside the State for the Termination of Pregnancies) Bill, 1995. 

It is also noteworthy that the European Court of Human Rights have held by a majority that the injunction granted in Open Door Counselling was not consistent with the provisions of Article 10 of the European Convention on Human Rights and Fundamental Freedoms. That judgment is not, of course, in any sense binding on this court, but it lends, in my view, powerful support to the view that the comprehensive nature of the injunction granted cannot be reconciled with the right to communicate, and to receive, information relating to abortion in certain circumstances. 

It was said that:- 

"the court . . . struck by the absolute nature of the Supreme Court injunction which imposes a 'perpetual' restraint on the provision of information to pregnant women concerning abortion facilities abroad, regardless of age or state of health or their reasons for seeking counselling on the termination of pregnancy. The sweeping nature of this restriction has since been highlighted by the case of The Attorney General v X & Ors and by the concession made by the Government at the oral hearing that the injunction no longer applied to women who, in the circumstances as defined in the Supreme Court's judgment in that case, were now free to have an abortion in Ireland or abroad. On that ground alone the restriction appears over broad and disproportionate . . ." [Open Door Counselling and Another v Ireland, 15 EHRR 244 at p 266.] 

I agree that the decision of this court in Open Door Counselling should not be regarded as having decided any issues other than those which were expressly before the court. I would not, however, with respect, agree that the fact that no woman in the position of the defendant in Attorney General v X was a party to the case is a ground for treating the decision as confined in its application to cases other than those falling into the Attorney General v X category. 

It is important to bear in mind the nature of the proceedings in Open Door Counselling. It was not an action between individual citizens involving only the application of principles of private law. It was a public law action instituted by the Attorney General (at the relation of the plaintiffs in the present case) raising far reaching questions of constitutional law which had never before been considered by the courts. Any rulings of law made by the High Court and implemented by declarations and injunctions were, to the extent that they were upheld by this court, binding, not merely on the defendants, but on every citizen in the land. I find it difficult to understand how, in these circumstances, the conclusion was reached that the portion of the subsection requiring "due regard to the equal right to life of the mother" did not arise for interpretation or decision in that case. The passage already cited from the judgment of the learned Chief Justice on one reading would suggest that this was the result of a concession by counsel on behalf of the defendants. (The report of the arguments of counsel for the defendants in that case, admittedly lamentably uninformative, contain no indication as to whether such a concession was made.) 

The extent to which a decision is binding on other courts may sometimes depend on whether the point in question was the subject of argument in the decision under consideration. That does not arise in this case, where we are solely concerned with whether Open Door Counselling was correctly decided. I am satisfied that the exclusion from any consideration in that case of the words "with due regard to the equal right to life of the mother" led to a decision which was erroneous in point of law, ie that there could not in any circumstances be an implied and unenumerated constitutional right to information about the availability of the service of abortion outside the State which, if availed of, would have as a direct consequence the termination of a pregnancy. That statement of the law, is, in my opinion, inconsistent with the statement of the law in this court in X v The Attorney General, and the passage cited from the opinion of this court in Re: Article 26 of the Constitution and the Regulation of Information (Services Outside the State for Termination of Pregnancies) Bill 1995 and should not now be followed. 

It has been emphasised in the present case that the defendants were not merely confining their activities to cases falling within the category identified in Attorney General v X but were also distributing the information "to the community at large and to university students in particular", as it was put by Morris J. The decision in Open Door Counselling was not, however, confined in any way to the distribution of the information in that fashion, as Finlay CJ made clear on the hearing of an appeal from the refusal by Carroll J to grant an interlocutory injunction in the present proceedings, in the passage from his judgment already cited by the Chief Justice. It follows that even if the defendants had restricted their activities prior to the hearing in the High Court to the giving of information on a confidential one-to-one basis to any students who sought it, the High Court would have been obliged to grant an injunction, although one couched in different terms from the one under appeal. 

The question remains as to whether this court should now substitute for the order granted in the High Court an injunction restraining the defendants from communicating the relevant information save in cases in which the person giving the information is satisfied that, as a matter of probability, there is a real and substantial risk to the life, as distinct from the health, of the mother. 

It is at least questionable whether relief should be granted in that form when the High Court was never invited to make such an order and there has consequently been no hearing at first instance of the issue. However, even if one were to assume that this court could properly grant such an injunction, the question would arise as to whether it should be granted, having regard to the fact that a perpetual injunction is a discretionary remedy. No doubt that discretion is more likely to be exercised in favour of the plaintiff in a case, such as this, where the upholding of constitutional rights is in issue. There are, however, in this case, weighty factors which, in my view, would have to be taken into account in deciding whether such an injunction should be granted. 

It would appear from the statement of the facts in Attorney General v X that, at the stage when her parents sought an abortion, the girl was -- at the most -- eight weeks pregnant. Would different considerations arise in a similar case if the foetus had developed to a point where it was viable outside the womb? Can the more expansive interpretation of "life" adopted in Bourne's case ever be adopted at any stage of a pregnancy? What qualifications, if any, are required of a person before he or she determines that the risk to the mother's life is of such a nature as to justify the giving of information? On what evidence is he or she entitled to reach such a conclusion? 

In the Attorney General v X, McCarthy J said:- 

"In the context of the eight years that have passed since the (Eighth Amendment) was adopted and the two years since Grogan's Case [the present case] the failure by the legislature to enact the appropriate legislation is no longer just unfortunate: it is inexcusable. What are pregnant women to do? What are the parents of a pregnant girl under age to do? What are the medical profession to do? They have no guidelines save what may be gleaned from the judgments in this case. What additional considerations are there? Is the victim of rape, statutory or otherwise, or the victim of incest, finding herself pregnant, to be assessed in a manner different from others? The amendment, born of public disquiet, historically divisive of our people, guaranteeing in its laws to respect and by its laws to defend the right to life of the unborn, remains bare of legislative direction . . . 

"Since the amendment contemplates lawful abortion, how may the State still, as far as practicable, vindicate the right to life of the unborn? Legislation may be both negative and positive; negative, in prohibiting absolutely or at a given time, or without meeting stringent tests; positive by requiring positive action. The State may fulfil its role by providing necessary agencies to help, to counsel, to encourage, to comfort, to plan for the pregnant woman, the pregnant girl or her family. It is not for the courts to programme society; that is partly at least, the role of the legislature. The courts are not equipped to regulate these procedures." 

The 1995 Act provides no answers to any of these question and was clearly not designed so to do. Almost five years have elapsed since that judgment was delivered and successive governments have failed to introduce any form of statutory regime. It is not the function of this court to supplement this governmental and legislative inertia by the making of orders so uncertain and fraught with difficulty. 

Apart altogether from the reasons which I have already given, there are other matters to be taken into account in deciding whether the declaration and injunctions granted by the High Court in this case should be upheld. In Attorney General v X, differing views were expressed by the members of the court as to whether the right to travel of the Plaintiff was abridged to an unconstitutional extent by the injunction granted by the High Court in that case. Since those observations were obiter (as was made clear by the learned Chief Justice in that case), it is open to this court without any departure from stare decisis to choose between the differing views. I would prefer the view of McCarthy J and O'Flaherty J that it did impermissibly violate the Plaintiffs right to travel. 

That right, as found by Finlay P (as he then was) in the State (M) v Attorney General [1979] IR 73 is one of the hallmarks of a democratic society which distinguish our State and others from totalitarian regimes. While it has been pointed out by the learned editors of Kelly on The Irish Constitution (3rd Edtn at pp 809/10) that the word "freedom" rather than "right" is used in the Fourteenth Amendment, arguably implying that there was no corresponding duty on the State to protect that freedom, I would take the view that a harmonious interpretation of the Constitution would suggest that such a construction was not open to the courts. Whether it be a right or a freedom, however, it can be exercised for a huge range of purposes. One such purpose is availing of abortion facilities in other States applying different laws. If that decision results in the termination of a pregnancy in circumstances where the Irish Constitution would have outlawed the procedure in question, it follows that the right to life of the unborn acknowledged by the Constitution is not protected by our laws in that particular case. That, however, is a necessary consequence of living in a democratic society. It follows inevitably that to deny the woman concerned the information which enables her to exercise that decision is to violate her constitutional freedom to travel and is, in addition, a clear encroachment on the right of people to communicate and receive information, an aspect of freedom of expression which is also of fundamental importance in every democratic society. 

If one were to reach the conclusion that the granting of the injunction in the High Court was correct, it would be necessary to consider whether the injunction should nevertheless be discharged, having regard to the provisions of the Fourteenth Amendment and the 1995 Act. That, on the view I take of this case, is a matter which does not now arise and was not, in any, event fully argued. I accordingly express no opinion on that matter. 

I would allow the appeal.