Against Morality

Cases

Attorney General (Society for the Protection of Unborn Children (Irl) Ltd) v Open Door Counselling Ltd

[1987] ILRM (HC); [1989] ILRM 19

 

Finlay CJ
This is an appeal brought by the defendants against the order made by Hamilton P. in the High Court, dated 27 April 1987, which granted to the plaintiff a declaration that the activities of the defendants, their servants or agents, in counselling pregnant women within the jurisdiction of the court to travel abroad to obtain an abortion or to obtain further advice on abortion within that foreign jurisdiction were unlawful, having regard to the provisions of Article 40.3.3° of the Constitution, and which restrained the defendants and each of them, their servants or agents from counselling or assisting pregnant women within the jurisdiction to obtain further advice on abortion or to obtain an abortion.

The parties
These proceedings were originally instituted by the Society for the Protection of Unborn Children (Ireland) Ltd (the Society). The defendants each in their defence challenged the locus standi of that Society to institute the proceedings and subsequently on 24 September 1986 by order of the High Court, the proceedings were amended and converted into proceedings in the name of the Attorney General at the relation of the Society. Amended defences were then filed by the defendants challenging the locus standi of the Attorney General to maintain the proceedings.

Constitutional provision in issue
The Eighth Amendment of the Constitution 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.

The facts
The plaintiffs served, prior to the hearing, on each of the defendants a notice to admit facts and that notice coupled with the replies thereto constituted an agreed set of facts upon which the hearing in the High Court proceeded without any other oral or documentary evidence. Of these facts those material to the issues arising on this appeal with regard to each of the defendants may thus be summarised. The defendants’ Open Door Counselling:

(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, these defendants will arrange to refer her to a medical clinic in Great Britain.

(d) These defendants’ 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 had been performed on pregnant women who had been previously counselled by these defendants.

(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.

With regard to the defendant Wellwoman Centre the relevant agreed facts are as follows:

(a) It counsels in a non-directive manner pregnant women resident in Ireland and that counselling takes place within the State.

(b) Abortion or termination of pregnancy may be one of the options discussed within the said counselling if the question is raised by the person seeking counselling.

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

(d) In certain circumstances these defendants may arrange the travel requirements of such pregnant women.

(e) These defendants inspect the medical clinic in Great Britain to satisfy themselves that it operates at the highest standards.

(f) At those medical clinics abortions have been performed on pregnant women who have been previously counselled by these defendants.

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

It was submitted on behalf of each of the defendants that the meaning of non-directive counselling in these agreed sets of facts was that it was counselling which neither included advice nor was judgemental but that it was a service essentially directed to eliciting from the client her own appreciation of her problem and her own considered choice for its solution. This interpretation of the phrase non-directive counselling in the context of the activities of the defendants was not disputed on behalf of the respondent. It follows from this, of course, that non-directive counselling to pregnant women would never involve the actual advising of an abortion as the preferred option but neither, of course, could it permit the giving of advice for any reason to the pregnant woman receiving such counselling against choosing to have an abortion.

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 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.

It was submitted on behalf of each of the appellants at the hearing of the appeal that they did not consider it essential to the service which they wished to provide for pregnant women in Ireland that they should take any part in arranging the travel of such women who wished to go abroad for the purpose of having an abortion or that they should make bookings in the clinics for such women.

They did, however, consider it essential to the service which they wish to provide that they should be at liberty to inform such women who wish 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.

Grounds submitted on the hearing of this appeal
1. The appellants appealed against the finding of the learned President that the Attorney General had the locus standi to maintain this action on the grounds that the action did not concern any specific pregnant woman and her unborn child and by reason of that fact it was alleged that the court should in its discretion refuse to grant any relief to the Attorney General because by doing so it might affect the position of the mother of an unborn child who had not been heard.

2. The appellants contended that the finding by the President of the High Court on the agreed facts that the activities of the defendants constituted the counselling of and assisting of pregnant women to go abroad for the purpose of having an abortion performed was not supported by the evidence and gave insufficient weight to the real meaning of non-directive counselling.

3. It was contended on behalf of the appellants that an order restraining them from providing for pregnant women the service which they had been providing would be ineffective to prevent such women obtaining an abortion abroad and was, therefore, not an order which should be made by the court.

4. It was contended that one of the unenumerated constitutional rights was a right to receive and impart information. It was submitted that that right included a right in pregnant women within the jurisdiction to receive information about the availability of abortion outside the jurisdiction and that the court could not make an order impeding the exercise of that constitutional right.

5. It was contended that a question arose in this case as to the interpretation of the Treaty of the European Economic Community and that a decision on that question was necessary to enable this Court to give judgment and that therefore this Court, as a court of final appeal, was bound to request the Court of Justice of the European Communities to give a ruling on that question pursuant to Article 177 of the Treaty. It was submitted that the question of interpretation of the Treaty arose in the following way. It was asserted that a pregnant woman residing in this State had a right, pursuant to Articles 59 and 60 of the Treaty, to travel to part of another Member State, to wit, the United Kingdom, for the purpose of being the recipient of a service consisting of the performing of an abortion upon her. It was further asserted that a necessary corollary to that right vested in such pregnant woman by the Treaty was the right to information about the availability of that service.

On these issues I have come to the following conclusions.

Locus standi
The guarantee contained in Article 40.3.3° of the Constitution by the State in its laws to respect and as far as practicable by its laws to defend and vindicate the right to life of the unborn imposes an obligation not only on the legislature but also upon the courts. The fundamental nature of this obligation on the courts and its importance is well stated in the decision of this Court in State (Quinn) v Ryan [1965] IR 70, where Ó Dálaigh CJ, at p. 122, stated as follows:

It was not the intention of the Constitution in guaranteeing the fundamental rights of the citizen that these rights should be set at nought or circumvented. The intention was that rights of substance were being assured to the individual and that the Courts were the custodians of these rights. As a necessary corollary it follows that no-one can with impunity set those rights at nought or circumvent them, and the the Court’s powers in this regard are as ample as the defence of the Constitution requires.

If it is established to the satisfaction of the court that the admitted activities of the defendants constitute an assistance to pregnant women within the jurisdiction to go out of the jurisdiction for the purpose of having an abortion, then that is an activity which directly threatens the right to life of the unborn, not only in a single case but in all cases of women who are assisted by those activities to have an abortion.

If, therefore, the jurisdiction of the courts is invoked by a party who has a bona fide concern and interest for the protection of the constitutionally guaranteed right to life of the unborn the courts, as the judicial organ of government of the State, would be failing in their duty as far as practicable to vindicate and defend that right if they were to refuse relief upon the grounds that no particular pregnant woman who might be affected by the making of an order was represented before the courts.

I am satisfied that the Attorney General who is the holder of a high constitutional office is an especially appropriate person to invoke the jurisdiction of the court in order to vindicate and defend the right to which I have referred. The defendants’ appeal on the issue of locus standi must, therefore, fail.

Finding that the Defendants were counselling and assisting pregnant women to go abroad for the purpose of having an abortion
The learned President in the course of his judgment (reported at [1987] ILRM 477) dealt with the meaning of the word counsel to some extent in the context of the criminal law. He stated at p. 498 as follows:

A person counsels the commission of an act if, before the commission of the act, he/she conspires to commit it, advises its commission or knowingly gives assistance to one who may commit it…. Counselling implies consensus but not causation and involves an intention to assist in the commission of the act. The intention to assist involves knowledge of the nature of the act to be committed and such intention to assist need not involve a desire that the act should be committed or attempted.

Having so defined counselling, the learned President later in his judgment stated at p. 499 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.

In making this finding the learned President did not indicate which of the three meanings of counselling which he had previously set out he was referring to.

If he intended by this finding to hold that the defendants were conspiring to procure an abortion out of the jurisdiction or were advising the procuring of an abortion outside the jurisdiction, those findings would not be supported by the evidence.

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 40.3.3.° of the Constitution is the issue as to whether the defendants’ admitted activities were assisting pregnant women within the jurisdiction to travel outside that 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?

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 and that, therefore, this ground of appeal must fail.

Alleged ineffectiveness of the Restraining Order
It was strenuously submitted on behalf of the appellants, that if they did not provide this counselling service and, in particular, did not provide the identification, name and address of and method of communication with a properly-run clinic that the probability was that in many or all cases the pregnant woman concerned who had decided upon the option of abortion would succeed in obtaining an abortion in England, and probably in circumstances less advantageous to her health. No evidence was adduced to support this contention. There are no grounds for inferring it from any of the facts which are agreed as the basis for the trial of the action.

Even if it could be established, however, it would not be a valid reason why the court should not restrain the activities in which the defendants were engaged.

The function of the courts, which is not dependant 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 can not take that wide approach. They are confined to dealing with the parties and issues before them. I am satisfied, therefore, that it is no answer to the making of an order restraining these defendants’ activities that there may be other persons or the activities of other groups or bodies which will provide the same result as that assisted by these defendants’ activities. This ground of appeal also fails.

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 Articel 40.3.3° 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 40.6.1 (i) 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.

European Communities law
As I have already outlined in this judgment the appellants contend that the pregnant woman who has decided within the State to have an abortion and who wishes to travel to another Member State of the European Communities to be the recipient of the service of abortion has, by virtue of the provisions of Articles 59 and 60 of the EEC Treaty, a right to do so.

They did not suggest that the order made in the High Court in this case prevented such women from travelling out of the State for the purpose of obtaining an abortion. They did assert that as a necessary corollary to that right to travel and receive the service of abortion in another Member State there was a right to be given information relating to that service.

Counsel for the appellants expressly conceded that the corollary right for which they contended was confined to the obtaining of information about the availability or existence of the service and could not be extended to the obtaining of assistance to avail of or receive the service.

It follows from this unavoidable concession that the issue of European law raised in the pleadings does not arise in the case unless what is sought to be restrained by the plaintiffs is the obtaining by a pregnant woman of information concerning the availability of the service of abortion in another Member State.

What is sought to be restrained in this case is in no way confined to the question of information nor does the order of the High Court in any way prevent a pregnant woman from becoming aware of the existence of abortion outside the jurisdiction. In fact what is here sought to be restrained is assistance to a pregnant woman to travel abroad and obtain the service of abortion. Since no claim is made on behalf of the appellants that that is a corollary right to whatever rights such woman may have under the Treaty, it follows that no question of the interpretation of the Treaty falls to be decided in this case for the purpose of determining the issue between the parties. Therefore, the making of a reference to the Court of Justice of the European Communities pursuant to Article 177 of the Treaty does not arise.

Having regard to this conclusion it is not necessary for me to express any view on certain issues which have arisen in the course of the submissions before this Court and I do not intend to do so. Those issues are:

(a) Whether there exists in the mother of an unborn child a right pursuant to the EEC Treaty to travel abroad for the purpose of having an abortion, thus terminating the life of an unborn child which has been guaranteed by the Constitution.

(b) Whether these appellants are entitled by way of defence against the injunction sought against them to raise a right under European law, which is not vested in them but in the mother of an unborn child.

(c) The general nature of the right to travel to another Member State in order to receive services referred to in Articles 59 and 60 of the EEC Treaty.

Form of Order
Having regard to the difference between the interpretation of the word counselling in the criminal law and the interpretation of the word counselling in the form of non-directive counselling which is part of the services which have been provided by these defendants, it seems to me that in order to avoid any possibility of ambiguity it would be desirable to vary to a limited extent the forms of the orders made in the High Court.

I would, therefore, substitute for the declaratory order made in the High Court the following order.

The court doth declare that the activities of the defendants, 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 40.3.3° of the Constitution.

I would vary the order restraining the defendants so that it reads in the following terms:

And it is ordered that the defendants and each of them their and each of 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.

Save for these variations in the form of the orders made, I would dismiss this appeal.