DESCRIBE THE TREATMENT OF ABORTION UNDER THE VARIOUS SOURCES OF IRISH LAW, INVOLVING THE EVOLUTION OF THE CONSTITUTIONAL RIGHT TO LIFE OF THE UNBORN WITHIN THE IRISH CONSTITUTION. SUGGEST REFORMS OF THIS LAW WHICH WOULD MAKE IT MORE JUST, AND LESS OF A CAUSE OF CONSTITUTIONAL CRISIS.

Written by Michelle Clarke 1998-1999: Lecturer Professor Neville Cox

To discuss Abortion within context of Irish Law, it is necessary to examine its origin. It was part of the English law. The Offences against the Person Act 1861, section 58 which applied until the 1937 Constitution. S.58 OAPA states:

‘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….shall be liable… to be kept in [imprisonment] for life’.

29th December 1937 the Irish Constitution – which was coloured greatly be the dominant Roman Catholic ethos of that time, came into existence. The pledge to ‘adopt’, ‘enact’, and to ‘give to ourselves’ in this Constitution forms the foundation of a very different approach to the sanctity of the life of the unborn and a Mother’s choice viz a viz England. Article 40.3.3 of the Irish Constitution governs abortion. The words are to be interpreted by the Judiciary and this essay, inter alia, reviews these decisions and their impact.

Article 40.3.3. (as amended in 1983)
‘The State acknowledges the right to life of the unborn, with due regard to equal right to life of the mother, guarantees in its law to respect, and, as far as practicable, by its laws to defend and vindicate that right’.

The Irish constitutional position as stated in Article 40.3.3. became the precedent to be interpreted by the Judiciary. R. v. Bourne 1939 1KB 687 did not apply other than on a persuasive basis. In McGee v. Attorney General 1974, the Supreme Court ratio stated that a married family enjoyed a constitutional right to privacy which encompassed the right to obtain contraceptives. It was not expected that this issue would raise the issue of abortion. In the Griswald v. Connecticut 1965 case, the US Supreme Court stated a right to marital privacy and the use of contraceptives. By 1973, this right had been extended in Roe v. Wade to a full right privacy (not just for married couples) and it included the right to have an abortion. This significance of the Irish McGee case was that it too established the right to marital privacy. This was an implicit interpretation by the Irish Supreme Court Judiciary of Article 40.3.3. of the Constitution and this alerted those concerned with the moral issue of the equal right to life of the unborn.

The change in US law re. abortion and the liberalised approach in Europe meant that those who did not want abortion had to act to differentiate Ireland and prevent its introduction. This group of people became known as pro-lifers formed PLAC in 1981, the objective was to persuade the Government to amend the constitution: ‘Some Irish commentators argued that McGee had similar potential and that a constitutional amendment was necessary in order to prevent an undemocratic usurpation by a future generation of Irish judges of the right of the electorate to determine abortion policy’: (Kelly, 1994). It was a period of governmental instability but within 3 months, PLAC had a guarantee from both C.J. Haughey, Fianna Fail, and Garrett Fitzgerald, Fine Gael that they would endorse a constitutional amendment. It was time of political turbulence. C. J. Haughey produced the wording of the Amendment, it was endorsed by Garrett Fitzgerald when he came to power.

What is interesting to note is that Peter Sutherland, Attorney General noticed flaws in the wording, firstly it prevented people from their right to travel and secondly it allowed women to have an abortion in Ireland. The outcome was that G. Fitzgerald stated he wanted to apply his own wording – the Constitution could not be seen to include a right to abortion in Ireland. However, the proposal was rejected. The electorate gave its approval to the first paragraph of Article 40.3.3. on 7th September 1983. Worthy of note is that this amendment was proposed and pioneered outside the political system – it was the electorate who were promoting proposals for electorate and legislative changes.

This problem alleviated, the next concern for the pro-lifers was the impact of Ireland’s membership of the European Union. Attention was drawn to a series of cases involved in preventing the operation, in Ireland, of abortion referral services. Two new dimensions were added. Application by one set of defendants to European Court of Human Rights (“ECHR”) and the other to the European Court of Justice (“ECJ”), the former being persuasive while the latter is the supreme source of law since Ireland was ratified into the European Union in 1973.

The first relevant case was Attorney General (Society for the Protection of Unborn Children (Ireland) Limited v. Open Door Counselling Ltd 1988. The concern of SPUC was the women who travelled to England to have an abortion. Their attention was focused on institutions providing information on services available. They targeted the Well Woman Centre and Open Door Counselling. SPUC did not have the necessary locus standi i.e. the proof to state that they were directly affected so utilised the route via the Attorney General. They applied for an injunction restraining the defendants i.e. the two counselling agencies, from assisting pregnant women ‘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 and method of communication with a specified clinic or clinics’. The case came before Mr. Justice Hamilton and the defences which included, contrary to freedom of expression, right to travel, right to privacy etc. were rejected by him. He did not consider the words of the amendment – he stated that it was anti-abortion. He granted an injunction stopping non-directive counselling. The case was appealed to the Supreme Court who upheld the decision. Finlay C.J. said there was no 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 of the life of the unborn’. At this point, the Irish Supreme Court gave a decision that abortion was absolutely prohibited and moreover all its manifestations, namely the right to travel and freedom of expression.

In The Society for the Protection of Unborn Children (Ireland) Ltd. v. Coogan 1989, a majority of Supreme Court held that the plaintiff society had sufficient locus standi to bring an action enforcing compliance with Article 40.3.3. McCarthy J dissented saying ‘I confess to a feeling of great unease at the prospect of any person or group of persons….being held competent to take an action of this kind without the intervention of the Attorney General, despite his offer of assistance’. But the Ratio stood and the SPUC could now take the action directly.

SPUC then turned its attention to the Students Union publications. The 1988 Student Union Magazine contained sections on pregnancy and sub-section on abortion as an option to an unwanted pregnancy. It listed the names and addresses of clinics in England. SPUC took an action against the Student Union leaders in the case SPUC (Ireland) v. Grogan 1989. The concern was the distribution of information about abortion services outside the state, by three student unions. In the High Court, Carroll, J pursuant to Article 177 of the Treaty of Rome, referred the case to the ECJ, a court whose decision is precedent in Ireland. Carroll, J wanted a preliminary ruling on certain aspects of European Law. She did not give a decision and the Plaintiff SPUC applied to the Supreme Court against the High Court – they wanted an injunction and were not prepared to wait 18 months for the ECJ decision. The Supreme Court decided to grant and injunction. Finlay, C.J taking a similar approach to the Open Door counselling case said ‘…..an application to restrain an activity in the destruction of the right to life of the unborn child, a right acknowledged and protected under the Constitution. That constitutionally guaranteed right must be fully and effectively protected by the courts’. He went on to say, if the ECJ ruling required change, that the courts would review at that time. SPUC proved to be tactical achieving its aim and moving the cases to the Supreme Court virtually guaranteeing a consistent approach conducive to their wants.

The Open Door Counselling decision from the “ECHR” was completed on 7th March 1991. The Commission held by a majority of 8 to 5 that the injunction granted by the Supreme Court violated Article 10 of the Commission. Article 10 guarantees freedom of expression. However, 6 took the view that the injunction was not covered by Article 10(2) which permits certain restrictions to freedom of expression. They said the activities of the defendants were not proscribed by law and that the terms of Article 40.3.3. were insufficiently precise to be covered by the restrictions. This was a recommendation and thereby not binding. Seven months later the “ECJ” ruling stated that termination of pregnancy, performed in accordance with the law of the State in which it is carried out, constituted a service within the meaning of Article 60 of the Treaty of Rome. The Court held that it was not contrary to EC law for Ireland to prohibit the defendants from distributing information about abortion clinics in other jurisdictions where those clinics have no involvement in the distribution of the information. What this in fact meant is that if Open Door Counselling had a commercial relationship with a foreign clinic then the information could be disseminated in Ireland in accordance with EC law. The ECJ did also suggest that any law preventing travel re. abortion was invalid. No direct clear statement was made on this divisive issue by the “ECJ”.

7th February 1992, the Irish signature was required to the Maastricht Treaty. The Irish Government were concerned about the implications of the EC ruling. They lobbied their EC partners for adoption of Protocol 17, which states:-

“Nothing in the Treaty on the European Union or in the Treaties establishing the European Communities or in the Treaties or Acts modifying or supplementing those Treaties shall affect the application in Ireland of Article 40.3.3 of the Constitution of Ireland”.

The next issue on the agenda was the right to travel. The reference in Protocol 17 is to 40.3.3. at the time of signing the treaty, not a subsequent altered article. Ireland was not free to alter this article of the Constitution in the context of the exception made by Protocol 17.

10 days after the signing of the Maastricht Treaty, Costello, J. in the High Court granted an injunction which prevented a 14 year girl who as a result of rape was pregnant, from traveling to England to procure an abortion. The case was Attorney General v. X and others 1992. The defendants claimed that the Mother’s right to life was prejudiced because a real possibility existed that she would commit suicide. Costello, J. said:- ‘I am quite satisfied that there is a real and imminent danger to the life of the unborn and that if the court does not step in to protect it by means of the injunction sought, its life will be terminated’. He referred to the risk that the mother would take her own life but regarded it to be lesser than what would happen to the foetus. Hence the decision. ‘It seems to me, therefore, that having regard to the rights of the mother in this case, the court’s duty to protect the life of the unborn requires it to make the order sought”.

Costello, J went on to review European law in the context of the case stating that Ireland could derogate from it if it was substantially different to Irish social policy. The outcome was massive publicity and the issue projected onto the public arena once more and the matter was again to be reviewed by the Supreme Court. 26th February 1992 an ex tempore ruling lifted the injunction, the full judgments were subsequently delivered on 5th March 1997. Again Finlay, CJ, presided. The issue was the 1983 amendment. Did it allow abortion and if so under what circumstances? Finlay, C.J. said ‘it 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 to the mother to life, the Court must among other matters to be so regarded, concern itself with the position of the mother within the family group, with the person 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…

The Ratio:

“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 be only 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”.

He accepted suicide as a sufficient threat. Three other judges forming the majority concurred. McCarthy, J. said ‘On the facts of the case, which are not in contest, I am wholly satisfied that a real and substantial risk that the girl might take her own life was established: it follows that she should not be prevented from having a medical termination of pregnancy’ What is interesting is the Obiter Dicta by McCarthy, J. concerning the right to travel, an issue which subsequently resulted in an amendment. ‘It cannot, in my view, be curtailed because of a particular intent’. He gave the example of a person stating their intention to explode a bomb in another state and that they cannot be legally restrained from leaving the country for that purpose. Again Obiter he condemned the failure of the legislature to enact the necessary legislation regarding Abortion. Justices Egan and O’Flaherty agreed with decision but disagreed with McCarthy J. regarding the right to travel. Egan, J. agreed with Finlay C.J. that the right to travel could not take precedence over the right to life of the unborn.

Hederman J. dissented. He was not satisfied with the threat of suicide. He said ‘suicide threats can be contained. The duration of the pregnancy is a matter of months and it should not be impossible to guard the girl against self-destruction and preserve the life of the unborn at that time….’. However, overall, it appears that the Justices considered this and decided the threat is not so easy ‘to contain’. The majority judgments equate the threat of suicide with life-threatening medical conditions of a physical nature as a real and substantial risk to the life of the mother. Finlay, C.J. used common sense in support of the proposition that it would be “almost impossible” to prevent the defendant from suicide.

The campaigners for the introduction of 40.3.3. were disturbed by the broad interpretation given to the right to life of the mother v. the unborn by this judgment. Meantime, pro-abortionists were concerned about the ratification of Protocol 17 and the possibility that the right to travel by women choosing to have an abortion in England would be stopped and of major significance was the fact that three members of the Supreme court in AG v. X and Others 1992 envisaged that the constitution right to travel could be restrained in order to protect the right to life of the unborn. The X decision also highlighted the existing constitutional ban on information re. abortion services abroad. The Supreme Court decision ruling appeared to state that women who’s lives were at risk could not lawfully be denied information.

The next stage was the approach by the Government to seek an amendment to Protocol No. 17 which would ensure that EC law rights to travel and information would continue to be available to Irish citizens after the ratification of the Treaty of Rome. Other EU members would not re-open this issue. The Government had to settle for a Solemn Declaration. They gave the following legal interpretation:-

‘that it was and is their intention that the Protocol shall not limit freedom either to travel between Member States or, in accordance with conditions which may be laid down in conformity with European Law, by Irish Legislation, to obtain or make available in Ireland information relating to services lawfully available in member states’

In August 1992, Morris, J gave judgment applying principles stated by the Court of Justice in the Grogan case. The defendants contended they had the right to provide pregnant women with information and that a right to travel to England for an abortion applied. According to Morris, J. this contention ignored the finding of the Court of Justice i.e . it was not contrary to EC law where clinics providing such services had no involvement in the distribution of this information. The defendants also submitted that given the decision in the X case, it was now permissible to communicate information about abortion services to persons covered by that ruling. However, this argument was dismissed – the defendants had not limited the provision of information to persons coming within the scope of the X case.

2 months after the Morris, J. judgment, the “ECHR” handed down its decision in the appeal taken by Open Door and Dublin Well Woman clinics. A majority decision ruled that the restriction on the freedom of the applicants to give information was “prescribed by law”. They also accepted that the restriction had a moral origin but they held that the restriction was disproportionate to the aims pursued and was contrary to Article 10. One month after the “ECHR” delivered its judgment in the Open Door case, the public had the option to amend the Constitution. 25th November 1992, three separate proposed constitutional amendments were put before the electorate. Two of the proposals guaranteeing freedom to travel and freedom of information were included in Article 40.3.3. The further proposal to permit abortion where such was necessary to save the life, as distinct from the health, of the mother where such life was at risk from an illness or disorder of the mother, other than suicide, was defeated.

The litmus test in determining when abortions may lawfully be carried out in Ireland is contained in the majority judgments in the AG v. X – this holds that an abortion is permissible only where the continuance of the pregnancy constitutes a real and substantial risk to the life of the mother. This implies that the risk to the health as opposed to the life of the mother is insufficient to justify an abortion. The risk cannot be theoretical, it must be real and substantial, if the abortion is to be lawful.

In 1995 the Minister of Health proposed an Abortion Bill. Much condemnation was received. In 1996, the Government set up the Constitutional Review Group who found the abortion aspect unsatisfactory and suggested an approach by legislation. Garret Fitzgerald wrote to the Irish Times and suggested no Bill would be constitutionally acceptable and that a mix between legislation and an amendment to the constitution would be the best option.

1997. The Grogan case again came before the Supreme Court. Morris, J. H.C. had granted a full injunction against the students. The Supreme Court lifted this injunction thereby overruling previous cases on information.

REFORMS:-

Personally I think it is time for the legislature to intervene. Interpretation of the constitutional wording which has to be amended based on evolutionary process of interpretation for our Supreme Court judiciary requires clarification. As Ireland, like America, is based on the English Common Law system, I think it appropriate to look to the events which brought about the 1967 Abortion Act. R. v. Bourne 1939 widened the interpretation of this Act which in turn resulted in the Abortion Act 1967. In this case, similar in certain ways to the X case, a child was the victim of a multiple rape. It was a highly emotive issue. The gynaecologist performed the abortion, justifying his action on health grounds. He was acquitted after a favourable direction by Macnaghten J. The judge rested his direction on the use of the word ‘unlawfully’ which he took to mean that some termination’s of pregnancy were lawful. He also relied on the doctrine of necessity and said “the unborn child in the womb must not be destroyed unless the destruction of that child is for the purpose of preserving the yet more precious life of the mother”. The decision seems just. Initially there was hostility in England to it. This problem was common to all Christian countries that started with an unqualified prohibition of abortion. Ireland resolved its problem by closing its eyes to the so-called exodus to England, and only as people became more educated and looked to their intrinsic rights of choice, did the matter appear before the Courts in the late 1970’s. The law still relies on the Ratio of the X Case and the latest amendment to the Constitution. Based on this, surely it is time to have a similarly worded Statute to the English 1967 Abortion Act.

Abortion Act 1967
s.1(1)(a) ….that the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman or any existing children of her family; or

s.1(1)(b) that the termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman; or

s.1(1)(d) that there is a substantial risk if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped.

No doubt objections would be raised to the mental health issue and particularly where it concerns ‘existing children of her family’. Mental health is relevant. Hederman, J dissented in the X but no-one examined the reality of depression and suicide. No case law exists in England but the phrase is capable of wide interpretation. Mental illness may include a depressive psychosis, and moreover the British Medical Association recognises that a termination may properly be advised on account of a reactive depression ‘which is a pathological state of hopeless despair resulting from circumstances’. The World Health Organisation do not require a psychiatrist’s opinion and define it as ‘the state of complete mental, physical and social well-being, and not merely an absence of disease or infirmity’. Gynaecologists who take this view do not need to refer to a psychiatrist. The whole area of mental health needs to be outlined viz. a viz. abortion. Suicide is definitely taken into account in England because it indicates the depth of the woman’s depression. Since the decision in R. v. Bourne, to the 1967 Act and the judicial interpretation thereafter, concepts are moving along in line with the times people live in.

Section 1(1)(a) could exclude ‘or any existing children of her family’ if a similar Irish provision was permitted in a newly drafted stature. Likewise s.1(1)(d) is not likely to be accepted yet in Ireland but it is an issue which will require attention shortly. The foetal ground in s.1(1)(d) relates to the welfare of the parents. The philosophy of the Act is that it allows termination only where the child if born would be seriously handicapped, not where it is merely carrying undesirable genes.

The philosophical debate is whether a difference in moral status between the foetus and the child born. The early Church held that the soul entered the foetus at some time after conception i.e. the theory of mediate animation. The Common Law assumed this theory and fixed the time at quickening, when the foetus moved in the womb (approx. at 20 weeks). An abortion pre. quickening was not punished at common law and even thereafter it was not deemed murder, because no ‘reasonable creature’ was involved. The Roman Catholic Church had never regarded quickening as decisive to the entry of the soul and during the 19th century, most theologians followed the immediate animation theory i.e. the soul at moment of conception. Yet if this is the case – what is implantation about? Implantation is what is relevant i.e. the fertilised egg stays in the uterine tube, then descends to the uterus and about 10 days thereafter implants itself to the uterine wall. This means that certain methods of contraceptives and the morning after pill do not necessitate legal proceedings and yet the whole moral issue seems to be related to the predominance of Catholicism in Ireland and if so this surely this indicates that the goal posts have been changed. Is there a difference between the abortion of a 3 month foetus and using the abortifacents prior to the implantation rule?

To conclude, it is apparent that this emotive issue is easier not dealt with. It is crisis led and in the absence of suitable statutory legislation, the decisions rest yet again with the Supreme Court to interpret the Constitution. Social issues need to be addressed, mental health needs to be addressed, words within the Article 40.3.3. need to be clearly defined. Hopefully, the suggestions of the Constitutional Review Group will be acted on.

Michelle Clarke

4th March 2016.  No amendments.

BIBLIOGRAPHY:
Constitutional Review Book, 1996
Criminal Law Statutes, 1995. London: Sweet and Maxwell.
Kelly, J.M. 1994, 3rd Edition. The Irish Constitution. Dublin: Butterworths.
Williams, Glanville, 1958. Textbook of Criminal Law.
Whyte, Gerry, Abortion and the Law. Article.