A.G. v. X [1992] IESC 1; [1992] 1 IR 1 (5th March,
1992)
Supreme Court
The Attorney General (Plaintiff)
v.
X. and Others
(Defendant)
1992 No. 846P[5th March, 1992]
Status: Reported at [1992]
1 IR 1 FinlayC.J.
1. This is an appeal brought by the defendants against
an order made by Costello J. in the High Court on the 17 th
February, 1992, which was made in these proceedings upon an application
for an interlocutory injunction which by consent of the parties was treated
as the hearing of the action
.2. The first defendant is a fourteen and a half
year old girl and the second and third defendants are her parents.
3. Upon the facts proved in the High Court, the
first defendant was, in the month of December, 1991, raped, and as a result
of such rape became pregnant of which fact she and her parents became aware
at the very end of January, 1992. The rape was then reported to the Garda
Síochána and a statement given by the first defendant to
them of the facts surrounding the alleged rape.
4. All the defendants were distraught as a result
of the revelation of the fact of rape and as a result of the fact that
the first defendant was pregnant and after careful consideration all of
them reached a decision that she should travel to the United Kingdom and
undergo an operation for abortion. The family informed the Garda Síochána
of that fact and inquired from them whether any particular process was
available for testing the foetus so aborted in order to provide proof in
any subsequent charge of the paternity of the accused. The Garda Síochána
apparently submitted that inquiry to the Director of Public Prosecutions
and he in turn communicated the information thus arising to the Attorney
General
.5. The Attorney General on the 7th February, 1992,
having applied exparte to Costello J. in the High Court, obtained
an order of interim injunction restraining the first defendant and the
other defendants from leaving the country or from arranging or carrying
out a termination of the pregnancy of the first defendant. At the time
that order was ready to be served on the defendants they apparently had
left this country and were in England arranging for the carrying out of
the termination of the pregnancy. Upon being informed whilst there of the
order which had been made by the court, they returned to this country.
6. The interim injunction was to last until the
10th February, 1992, or until further order made in the meantime.
7. The application for an interlocutory injunction,
which was treated as the hearing of the action, was tried before Costello
J. on the 10th and 11 th February, 1992, and his reserved judgement
was delivered on the 17 th February, 1992. The order which he
then made and against which this appeal is brought as in the following
terms:-“IT IS ORDERED(a) that the defendants their servants or agents or
anyone having knowledge of the order be restrained from interfering with
the right to life of the unborn as contained in Article 40, s. 3, subs.
3 of the Constitution of Ireland;(b) that the first defendant be restrained
from leaving the jurisdiction of this honourable Court or the second and
third named defendants their servants or agents or anyone having knowledge
of the said order from assisting the first defendant to leave the aforesaid
jurisdiction for a period of nine months from the date hereof;(c) that
the first defendant her servants or agents or anyone having knowledge of
the said order be restrained from procuring or arranging a termination
of pregnancy or abortion either within or without the jurisdiction of the
Honourable Court. ”
8. Against the making of that order a notice of
appeal to this Court was filed on behalf of the defendants on the 21st
February, 1992.
9. The grounds of appeal set out in that notice
were as follows:“1. That the learned trial judge was wrong in law and in
fact in holding that upon the information that the defendants intended
to go to England for the purposes of obtaining an abortion for the first
defendant being conveyed to the Attorney General it was his duty in the
circumstances to apply to the High Court for the relief sought herein.2.
That the learned trial judge was wrong in law and in fact in holding that
the High Court had power to make an order in these proceedings notwithstanding
the failure of the Oireachtas to enact any law to reconcile the right to
life of the unborn with the equal right to life of its mother as the same
is referred to in the Eighth Amendment of the Constitution.3. That the
learned trial judge was wrong in law and in fact in holding that the tight
to life of the unborn acknowledged in the Eighth Amendment to the Constitution
was clear and unambiguous and that the duty of the courts to protect it
was imperative.4. That the learned trial judge was wrong in law and in
fact in holding that, although complicated and difficult issues of fact
may arise in individual cases, the fact that the Oireachtas had failed
to legislate on how the courts were to have regard to the equal right to
life of the mother did not inhibit the courts from applying the clear rule
of law laid down in the Eighth Amendment.5. That the learned trial judge
was wrong in law and in fact in the test that he applied to measure in
the circumstances of this case the comparative risk to the right to life
of the first defendant as mother.6. That in balancing the right of the
first defendant to her life as mother and that of the unborn the learned
trial judge was wrong in law and in fact in failing to give a preference
to the life of the first defendant as mother such life being a life in
being against the life of the unborn which life was contingent and putative.7.
That the learned trial judge was wrong in law and in fact in treating the
life of the unborn as a life of equal certainty with that of the first
defendant.8. That the learned trial judge was wrong in law and in fact
in holding that the risk that the first defendant may take her own life
if the orders made herein should be made was much less and of a different
order of magnitude than the certainty that the life of the unborn would
be terminated if the order was not made.9. That the learned trial judge
was wrong in law and in fact in finding that the danger to the right to
life of the mother was a lesser danger than the danger to the right to
life of the unborn.10. That the learned trial judge was wrong in law and
in fact in holding that in the circumstances of this case it was the Court’s
duty to protect the life of the unborn by making the order sought.11. That
the learned trial judge was wrong in law and in fact in holding that by
travelling abroad to procure an abortion the first defendant would be committing
a wrong and/or an unlawful act and that the court ought to restrain such
wrongful act even though this might involve the curtailment of the exercise
by the first defendant of her constitutional right to liberty as provided
in Article 40, s. 4 of the Constitution.12. That the learned trial judge
was wrong in law and in fact in holding that to travel abroad to procure
an abortion was to commit an unlawful or wrongful act.13. That the learned
trial judge was wrong in law and in fact in holding that in the circumstances
of this case the Eighth Amendment of the Constitution empowered the court
to stop the first defendant from going abroad to terminate the life of
her unborn.14. That the learned trial judge was wrong in law and in fact
in holding that there was no provision or principle of community law which
would prohibit the exercise of the discretionary power to derogate from
the requirements of the Treaty of Rome and community law in the manner
contained in the Eighth Amendment of the Constitution.15. That the
learned trial judge was wrong in law and in fact in holding that the first
defendant did not have a right under community law to travel abroad to
obtain an abortion.16. That the learned trial judge was wrong in law and
in fact in holding that the Eighth Amendment to the Constitution and the
legal consequences flowing from it amounted to a derogation on grounds
of public policy by Ireland from the principles of community law permitting
the first defendant to travel abroad to another state within the European
Community to obtain and receive services there.17. That the learned trial
judge was wrong in law and in fact in holding that the concept policy as
applied to the laws of the Community relating to the freedom of movement
of workers could be applied in relation to the freedoms to provide and
to receive services under Articles 59 and 60 of the Treaty of Rome and
the other measures giving effect thereto.18. That the learned trial Judge
was wrong in law and in fact in finding no provision or principle of Community
Law prohibiting a derogation by the State in the manner contained in the
Eighth Amendment of the Constitution.19. That the learned trial judge was
wrong in law and in fact in holding that the Eighth Amendment of the Constitution
amounted to a derogation from the laws of the European Community by Ireland
on grounds of public policy.20. That the learned trial judge was wrong
in law and in fact in holding that such derogation by the State by way
of the Eighth Amendment of the Constitution from the effect and operation
of the laws of the European Community passed the test of proportionality
under community law.21. That the learned trial judge was wrong in law and
in fact in finding that the Constitution required the making of the orders
sought.22. Such further or other grounds as may be relied upon.”
The proceedings
10. In the High Court the learned trial judge exercised
the jurisdiction conferred on him by s.
45 of the Courts
(Supplemental Provisions) Act, 1961, to hear the matter of the application
for an injunction as a ‘minor’ matter otherwise than in public. His reason
for so doing, as set out in his judgment, is as follows:-“As the first
defendant was a minor and as the distress from which she was suffering
would have been immeasurably increased had her name become known and the
facts of this case given publicity, I concluded that in her interests I
should accede to the request. In camera hearings in minor matters
are by no means uncommon. When they raise issues of law which require a
written judgment, then the judgment is so drafted as to preserve the minor’s
anonymity, and then circulated and made public in the ordinary way.”11.
Against that decision by the learned trial judge in relation to the method
of proceeding there was no appeal to this Court. This Court accordingly
listed the case as one in which the appeal was to be heard in camera.
At
the commencement of the appeal counsel on behalf of the defendants was
asked whether his clients still wished that the matter should be held
in
camera. The Court was informed that the application for the hearing
of the case in camera had been made in the High Court on behalf
of the Attorney General in the first instance, but had been supported by
counsel on behalf of the family whose most urgent desire was as far as
possible to protect their anonymity. Counsel then informed this Court that
that was still the urgent desire of the family.12.
In these circumstances, the Court reached the same conclusion as did the
learned trial judge in the High Court, namely, that the interests of justice
and the dominant welfare of the first defendant, in particular, required
that the proceedings should continue in camera.13.
The appeal was at hearing before this Court on 24th, 25th and 26th February.14.
On the last-mentioned date, the Court having heard all the submissions
from both sides on the constitutional issues arising, with the exception
of questions which might have arisen under the provisions of European law,
came to the conclusion that the appeal should be allowed and that the order
of the High Court should be set aside. That ruling was given in open court
on 26th February, and it was then stated that reasons for the decision
would be given at a later stage.15. I now, in this
judgment, give my reasons for that decision.
The judgment in the High Court
16. At the commencement of his judgment, Costello
J. dealt first with the question of the initiation of the proceedings by
the Attorney General, in the following terms, and I quote:—“The information
that the defendant and her parents intended to go to England for the purposes
of an abortion was conveyed to the Attorney General. The duty of the Attorney
General in the circumstances cannot be in doubt. Provision is made in the
Constitution for the office of Attorney General. He is legal adviser to
the Government. But in addition, the Constitution imposes on him duties
which he must fulfil independently of the Government. As was pointed out
by the Chief Justice in The Attorney General (S.P.U.C) v. Open Door
Counselling Ltd [1988] I.R. 593 at p. 623, once it is established that
activities constitute assistance to pregnant women to go out of the jurisdiction
for the purpose of having an abortion, then this is an activity directly
threatening the right to life of the unborn, and the Attorney General is
an especially appropriate person to invoke the jurisdiction of the court
in order to vindicate and defend the right to life of the unborn. Acting
as required by the Chief Justice, the Attorney General instructed counsel
to apply to the High Court so that the court could, in the light of the
facts to be established before it, make an appropriate decision.” 17.
As appears from the grounds of appeal set out in this judgment, an appeal
against that part of the judgment was originally formulated. No submissions,
however, were made at the hearing of this case in furtherance of those
grounds. I feel, however, that I should state that the view expressed by
Costello J. in this part of his judgment is correct, and I see no reason
to alter the view which I expressed and to which he refers in The Attorney
General (S.P.U.C.) v. Open Door Counselling Ltd [1988] I.R . 593with
regard to the function of the Attorney General. It would have been, in
my view, quite incorrect for him in this case, and in the absence of legislation
providing any alternative procedure, to take it upon himself to make a
decision on the facts available to him, instead of, as he did, bringing
the matter before the courts.18. The first issue submitted
before the High Court on behalf of the defendants was that because the
Oireachtas had not enacted any law regulating the manner in which the right
to life of the unborn and the right to life of the mother, referred to
in the Eighth Amendment, could be reconciled the court could make no order
in a case in which an issue of reconciliation arose. The learned trial
judge in rejecting this submission stated as follows:—“It seems to me that
if the court is apprised of a situation in which the life of the unborn
is threatened, then it would be failing in its constitutional duty to protect
it merely because the Oireachtas had failed to legislate on how it was
to have regard to the equal right of the mother, as provided for in the
Eighth Amendment. Complicated and difficult issues of fact may, of course,
arise in individual cases, but that does not inhibit the court from applying
the clear rule of law laid down in the Amendment.”19.
The second issue which was submitted on behalf of the defendants in the
High Court was that although the Eighth Amendment required the courts to
defend and vindicate the life of the unborn, they were in doing so to have
regard to the equal right to life of the mother; that in doing so in this
case the court should not make the order sought because this would prejudice
the mother’s right to life, because of the very real danger, which, it
was said, the evidence established, that she would take her own life if
the order was made and she was unable to procure an abortion. Dealing with
this issue the learned trial judge stated as follows:—“I am quite satisfied
that there is a real and imminent danger to thelife 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. The evidence also establishes that
if the court grants the injunction sought there is a risk that the defendant
may take her own life. But the risk that the defendant may take her own
life, if an order is made, is much less and of a different order of magnitude
than the certainty that the life of the unborn will be terminated if the
order is not made. I am strengthened in this view by the knowledge that
the young girl has the benefit of the love and care and support of devoted
parents who will help her through the difficult months ahead. It seems
to me, therefore, that having had 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.”
Submissions of the defendants with regard to these two issues
20. With regard to the issue concerning the question
of the inability of the court to make any order where a reconciliation
of a conflict between the right to life of the unborn and the right to
life of the mother, both dealt with in the Eighth Amendment, arose, it
was submitted on this appeal that the word ‘laws’ contained in that amendment
must be construed to mean laws enacted by the Oireachtas, and that since
no laws had been enacted by the Oireachtas to vindicate or defend the right
of the unborn, following upon the enactment of the Eighth Amendment of
the Constitution, the court had no jurisdiction to intervene in that behalf.21.
With regard to the finding by the learned trial judge concerning the disparity
between the risk to life of the unborn and the risk to life of the mother,
the following submission was made. It was contended that the true test,
having regard to the proper interpretation of Article 40, s.3, sub-s. 3,
of the Constitution, was that if it was established as a matter of probability
that the continuation of the life of the unborn child constituted a real
and substantial risk to the life of the mother then the conflict thus arising
should be resolved by preferring the life of the mother. This submission
was based upon an assertion, having regard to the meaning which should
be placed upon the two phrases ‘as far as practicable’ and ‘with due regard
to’ contained in sub-s. 3 of s. 3 of Article 40, that the protection of
the life of the mother must, by reason of it being a life in being as distinct
from an unborn life, in the circumstances where a real and substantial
risk to it was established, be preferred. It was further submitted on behalf
of the Attorney General that the phrases ‘due regard’ and ‘as far as practicable’
contained in the sub-section of the Constitution made it necessary that
in interpreting this sub-section one looked elsewhere at the position of
a woman who is a mother and a member of a family group and a member of
society in the terms of the rights and obligations which, as such, she
may have, together with, in relevant cases, the rights and obligations
of her parents as well.
Submissions of the Attorney General on these two issues
22. With regard to the submission that by reason of
the absence of legislation vindicating and defending the right identified
and guaranteed in Article 40, s.3, sub-s.3 the court had no power or function
to protect that right by any particular order, counsel on behalf of the
Attorney General relied upon the judgment of Kenny J. in The People
v. Shaw [1982] I.R. 1. He also relied on the judgment delivered Byrne,
with which the other members of the Court agreed, in The Attorney General
(S.P.U.C.) v. Open Door Counselling Ltd [1988] I.R. 593. He submitted
that it would be quite inconsistent with the obligation and right of the
courts to uphold the Constitution and the rights therein identified and
guaranteed, if it were not empowered to act without the intervention in
any particular instance of the Oireachtas.23. With
regard to the question of the true interpretation of the provisions of
Article 40, s. 3, sub-s 3, it was submitted on behalf of the Attorney General,
firstly, that the terms of that sub-section must not be interpreted in
isolation from the other provisions of the Constitution: that the use of
the phrase ‘due regard’ and of the phrase ‘as far as practicable’ necessarily
involved, for the interpretation of the provisions of the sub-section of
the Article, a consideration of the entire provisions of the Constitution,
of the principles in accordance with which the courts should approach its
interpretation, and with the need for harmonisation between this particular
provision of the Constitution and other rights and obligations identified,
granted or guaranteed by it. In this context reliance was placed by counsel
on the judgments of this Court in McGee v. The Attorney General [1974]
I.R. 284; on the judgment of 0 ‘Higgins C.J. in The State (Healy) v.
Donoghue [1976] I.R. 326 and the judgment of 0 ‘Higgins C.J.
in The State (Director of Public Prosecutions) v. Walsh [1981] I.R.
412. Having regard to the principles thus laid down by this Court, it was
submitted on behalf of the Attorney General that the phrases ‘due regard’
and ‘as far as practicable’ contained in the sub-section of the Constitution
made it necessary that in interpreting this sub-section one looked elsewhere
at the position of a woman who is a mother and a member of a family group
and a member of society in the terms of the rights and obligations which,
as such, she may have, together with, in relevant cases, the rights and
obligations of her parents as well.24. Having regard
to these principles, it was submitted that the true test to be applied
was that under the terms of the sub-section if it was established in any
case that the continuation of the life of the unborn constituted a risk
of immediate or inevitable death to the mother the termination of the pregnancy
would be justified and lawful.25. Such a test, it
was urged, had due regard to the principles which had been submitted and
to the rights and obligations and constitutional situation of the mother
as a life in being.26. It was consequently contended
that the test proposed on behalf of the defendants of a real and substantial
danger to the life of the mother, as justifying the termination of the
pregnancy, was disproportionate and even having regard to the considerations
which it was conceded were relevant, was a failure to approach sufficiently
equality between the two rights concerned.27. On behalf
of the Attorney General it was further submitted that, even if the test
for reconciliation of the right to life of the unborn and of the mother
proposed by the defendants were correct, the evidence adduced on behalf
of the defendants did not establish a risk complying with that test.
Article 40, s. 3, sub-s. 3 of the Constitution as inserted by
the Eighth
Amendment
“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.”
Decision on these two issues arising in the appeal
Powers of the Court in the absence of legislation
In The State (Quinn) v. Ryan [1965] I.R. 70 O’Dálaigh
C.J. with whose judgment the other members of the Court agreed, 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
naught 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 these rights at naught or circumvent them, and that the courts’
powers in this regard are as ample as the defence of the Constitution requires.”28.
In his judgment in The People v. Shaw [´1982] I.R.1 Kenny
J., stated as follows at p. 62 of the report at p. 122:—“When the People
enacted the Constitution of 1937, they provided (Article 40, s. 3) that
the State guaranteed in its laws to respect, and, as far as practicable,
by its laws to defend and vindicate the personal rights of the citizen
and that the State should, in particular, by its laws protect as best it
might from unjust attack and in the case of injustice done, vindicate the
life, person, good name and property rights of every citizen. I draw attention
to the use of the words ‘the State’. The obligation to implement this guarantee
is imposed not on the Oireachtas only, but on each branch of the State
which exercises the powers of legislating, executing and giving judgment
on those laws: Article 6. The word ‘laws’ in Article 40, s. 3, is not confined
to laws which have been enacted by the Oireachtas, but comprehends the
laws made by judges and by ministers of State when they make statutory
instruments or regulations.” 29. In my judgment
in The Attorney General (S.P.U.C.) v. Open Door Counselling Ltd. [1988]
I.R. 593 at p. 621, dealing with the guarantee contained in Article 40,
s. 3, sub-s. 3 of the Constitution, having quoted from the decision of
Ó30. Dálaigh C.J. in The State (Quinn)
v. Ryan [1965] I.R. 70 as applicable to an issue which arose
in that case concerning the locus standi of the plaintiff to maintain
the proceedings, I stated as follows:—“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 were 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.” 31. Having regard to these statements
of the law expressed by this Court to the principles underlining them,
I have no doubt that the submission that the courts are in any way inhibited
from exercising a function to vindicate and defend the right to life of
the unborn which is identified and guaranteed by Article 40,s.3, sub-s.
3 of the Constitution by reason of a want of legislation is incorrect and
that the appeal of the defendants upon this ground must fail.
Interpretation of Article 40, s. 3, subsection 3
32. In the course of his judgment in McGee v. The
Attorney General [1974] I.R. 284 Walsh J., stated as follows
at pp. 318/319 of the report:—“In this country, it falls finally upon the
judges to interpret the Constitution and in doing so to determine, where
necessary, the rights which are superior or antecedent to positive law
or which are imprescriptibly or inalienable. In the performance of this
difficult duty there are certain guidelines laid down in the Constitution
for the judge. The very structure and content of the Articles dealing with
fundamental rights clearly indicate that justice is not subordinate to
the law. In particular, the terms of s. 3 of Article 40 expressly subordinate
the law to justice. Both Aristotle and the Christian philosophers have
regarded justice as the highest human virtue. The virtue of prudence was
also esteemed by Aristotle, as by the philosophers of the Christian world.
But the great additional virtue introduced by Christianity was that of
charity — not the charity which consists of giving to the deserving, for
that is justice, but the charity which is also called mercy. According
to the preamble, the people gave themselves the Constitution to promote
the common good, with due observance of prudence, justice and charity so
that the dignity and freedom of the individual might be assured. The judges
must, therefore, as best they can from their training and their experience
interpret these rights in accordance with their ideas of prudence, justice
and charity. It is but natural that from time to time the prevailing ideas
of these virtues may be conditioned by the passage of time; no interpretation
of the Constitution is intended to be final for all time. It is given in
the light of prevailing ideas and concepts.”33. In
the course of his judgment in The State (Healy) v. Donoghue [1976]I.R.
325, O’Higgins C.J. stated as follows at p. 347 of the report:—“The preamble
to the Constitution records that the people seeking to promote the common
good, with due observance of prudence, justice and charity, so that the
dignity and freedom of the individual may be assured, true social order
attained, the unity of our country restored, and concord established with
other nations, do hereby adopt, enact, and give to ourselves this Constitution.In
my view, this preamble makes it clear that rights given by the Constitution
must be considered in accordance with concepts of prudence, justice and
charity, which may gradually change or develop as society changes and develops
and which fall to be interpreted from time to time in accordance with prevailing
ideas. The preamble envisages a Constitution which can absorb or be adapted
to such changes. In other words, the Constitution did not seek to impose
for all time the ideas prevalent or accepted with regard to these virtues
at the time of its enactment. Walsh J. expressed this view very clearly
in
McGee v. The Attorney General when he said at p.319 of the report...”34.
The learned Chief Justice then quoted from that portion of the judgment
of Walsh J. which I have set out above in this judgment. I not only accept
the principles set out in these two judgments as correct and appropriate
principles which I must follow in interpreting the provisions of this subsection
of the Constitution, but I find them particularly and peculiarly appropriate
and illuminating in the interpretation of a sub-section of the Constitution
which deals with the intimate human problem of the right of the unborn
to life and its relationship to the right of the mother of an unborn child
to her life.35. I accept the submission made on behalf
of the Attorney General, that the doctrine of the harmonious interpretation
of the Constitution involves in this case a consideration of the constitutional
rights and obligations of the mother of the unborn child and the interrelation
of those rights and obligations with the rights and obligations of other
people and, of course, with the right to life of the unborn child as well.36.
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]
I.R. 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. 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.37. 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.
Has the first defendant by evidence satisfied this test?
38. With regard to this issue, the findings of fact
made by the learned trial judge in the High Court at p. 7 of the report
are as follows:—“When the defendant learned that she was pregnant she naturallywas
greatly distraught and upset. Later she confided in her mother that when
she learned she was pregnant she had wanted to kill herself by throwing
herself downstairs. On the journey back from London she told her mother
that she had wanted to throw herself under a train when she was in London,
that as she had put her parents through so much trouble she would rather
be dead than continue as she was. On the 31st January, in the course of
a long discussion with a member of the Garda Síochána, she
said: ‘I wish it were all over, sometimes I feel like throwing myself downstairs.’
And in the presence of another member of the Garda Síochána,
when her father commented that the ‘situation was worse than a death in
the family’ she commented: ‘Not if it was me’.” 39.
On the day of her return from London the defendant’s parents brought her
to a very experienced clinical psychologist. He explained in his report
that he had been asked to assess her emotional state; that whilst she was
co-operative she was emotionally withdrawn; that he had concluded that
she was in a state of shock and that she had lost touch with her feelings.
She told him that she had been crying on her own, but had hidden her feelings
from her parents to protect them. His opinion was that her vacant, expressionless
manner indicated that she was coping with the appalling crisis she faced
by a denial of her emotions. She did not seem depressed, but he said that
she ‘coldly expressed a desire to solve matters by ending her life.’ In
his opinion, in her withdrawn state ‘she was capable of such an act, not
so much because she is depressed but because she could calculatingly reach
the conclusion that death is the best solution.’ He considered that the
psychological damage to her of carrying a child would be considerable,
and that the damage to her mental health would be devastating. His report
was supplemented by oral testimony. He explained that in the course of
his consultation with the defendant she had said to him: ‘It is hard at
fourteen to go through the nine months’ and that she said: ‘It is better
to end it now than in nine months’ time.’ The psychologist understood this
to mean that by ending her life she would end the problems through which
she was putting her parents with whom she has a very strong and loving
relationship.40. The psychologist who gave oral evidence
as well as submitting a report, (which was admitted by agreement in evidence
before the learned trial judge) stated that when he had interviewed this
young girl and was anxious to have a continuing discussion with her parents
who accompanied her and not having anybody available to remain with the
young girl in the waiting room, his view of the risk of her committing
suicide was so real, on his past experience in this field of medicine,
that notwithstanding its obvious inappropriateness he requested her to
remain in the room while he discussed the problem with her parents.41.
I am satisfied that the only risk put forward in this case to the life
of the mother is the risk of self-destruction. I agree with the conclusion
reached by the learned trial judge in the High Court that that was a risk
which, as would be appropriate in any other form of risk to the life of
the mother, must be taken into account in reconciling the right of the
unborn to life and the rights of the mother to life. Such a risk to the
life of a young mother, in particular, has it seems to me, a particular
characteristic which is relevant to the question of whether the evidence
in this case justifies a conclusion that it constitutes a real and substantial
risk to life.42. If a physical condition emanating
from a pregnancy occurs in a mother, it may be that a decision to terminate
the pregnancy in order to save her life can be postponed for a significant
period in order to monitor the progress of the physical condition, and
that there are diagnostic warning signs which can readily be relied upon
during such postponement.43. In my view, it is common
sense that a threat of self-destruction such as is outlined in the evidence
in this case, which the psychologist clearly believes to be a very real
threat, cannot be monitored in that sense and that it is almost impossible
to prevent self-destruction in a young girl in the situation in which this
defendant is if she were to decide to carry out her threat of suicide.44.
I am, therefore, satisfied that on the evidence before the learned trial
judge, which was in no way contested, and on the findings which he has
made, that the defendants have satisfied the test which I have laid down
as being appropriate and have established, as a matter of probability,
that there is a real and substantial risk to the life of the mother by
self-destruction which can only be avoided by termination of her pregnancy.45.
It is for this reason that, in my view, the defendants were entitled to
succeed in this appeal, and the orders made in the High Court have been
set aside.
Further issues arising under domestic and constitutional law, other than
issues arising under European law
46. The remaining issues under domestic and constitutional
law which were submitted on this appeal, as distinct from being formulated
in the notice of appeal, can briefly be summarised as follows.(a) It was
asserted that the mother’s right to travel, including travelling out of
the jurisdiction, was an absolute right which could not be restricted by
any vindication or defence of the right of the unborn child to life.(b)
In the alternative it was submitted that such right to travel could not
be restricted by any vindication or defence of the right of the unborn
to life in the absence of a legislated restriction.(c) In the further alternative
it was submitted that even if an injunction restraining the mother from
travelling out of the jurisdiction in order to have an operation of abortion
performed was constitutionally permissible, it was so incapable of enforcement
or supervision that it basically constituted a futile order which the courts
should not make by way of injunction.(d) If the defendant were prevented
by court order from travelling out of the jurisdiction for the purpose
of having an operation of abortion performed, such order would apply to
her in effect a form of preventive detention which, in the decision of
this Court in Ryan v. The Director of Public Prosecutions [1989]I.R.
399, reaffirming the views previously expressed by this Court in The
People v.0’ Callaghan [1966] I.R. 501, has been declared constitutionally
impermissible. Particular reliance was placed in this argument on the fact
that it was submitted that the act which it was sought to prevent, namely,
the termination of the pregnancy, was not extraterritorially unlawful. 47.
Of necessity, these submissions were presented as alternatives to the main
contention of the defendants that on the particular facts of this case
and on the appropriate test to be applied to the conflict between the right
to life of the unborn and the right to life of the mother, as provided
for in Article 40, s. 3, sub-s. 3, a termination of the defendant’s pregnancy
was permissible, having regard to the constitutional provisions.48.
The conclusions which I have reached and which are shared by a majority
of my colleagues on this Court as to the true test to be applied to the
reconciliation of the right to life of the unborn and the right to life
of the mother identified and guaranteed under Article 40, s. 3, sub-s.
3 of the Constitution and on the facts which have been established by the
defendants to satisfy that test make it unnecessary for the purpose of
deciding this appeal to reach any conclusion on these further issues which
were raised.49. These issues having, however, been
fully argued and being matters of considerable public interest, it seems
to me that I should express my views upon them, even though those views
may fall as a matter of law within the category of being obiter dicta.50.
The right to travel was identified by me in a judgment delivered when!
was President of the High Court in The State (M.) v. The Attorney General
[1979]
I.R. 73, as an unenumerated constitutional right. That it exists as an
important and, in a sense, fundamental right closely identified with the
characteristics of any free society, cannot be challenged. The making of
an order by way of injunction restraining a person from travelling out
of the jurisdiction of the State, whether confirmed to travelling for a
particular purpose or for a particular period, constitutes a major restriction
of such right to travel, placing the right in actual abeyance.51.
The questions raised by these submissions obviously are questions as to
whether there can be a reconciliation between the right to life of the
unborn child and the right to travel of its mother, and if there can, by
what principles such reconciliation must be applied.
Right to travel
52. 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.53. 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.54. Furthermore, for the reasons set out by me
earlier in this judgment concerning the ample powers of the Court, even
in the absence of legislation, to vindicate and defend the right to life
of the unborn, I reject also the submission that the power of the Court
to interfere with the right to travel of the mother of an unborn child
is in any way limited or restricted by the absence of legislation, except
in so far as such absence of legislation may be a relevant factor on the
questions of ineffectiveness or futility of the granting of orders restricting
travel.55. The order made in the High Court in this
case was an order prohibiting the travelling by the mother of the unborn
child outside the State for a period of nine months. At the commencement
of the submissions made on behalf of the Attorney General it was indicated
that the Attorney General no longer sought to stand over that precise order
but was content instead, if the Court concluded that a restriction on the
right to travel could and should be applied, that it would be confined
to an injunction restraining the mother from travelling outside the State
for the purpose of having an operation of abortion carried out.56.
It was stated by counsel on behalf of the Attorney General that whilst
the Attorney General was in this case seeking the more limited order of
restraining travel, not in general but for the purpose of having an abortion
performed, he did not concede that the more extensive order might not be
appropriate in another case.57. It is a principle
applicable to the making of orders by the courts by way of injunction that
the Court should avoid making a futile or unenforceable order. That principle
would prima facie apply to injunctions made in order to protect
constitutional rights in the same way as it applies to injunctions made
in the protection of rights arising under private law. Furthermore, the
duty which is imposed upon the State under the terms of Article 40, s.3,
sub-s. 3 of the Constitution which is being discharged by the courts in
granting injunctions in the context with which I am now concerned, is a
duty to vindicate and defend the right of the unborn to life ‘as far as
practicable.’ This duty, with that qualification, must it seems to me necessarily
apply in any event to the discretions vested in the Court the principle
that it cannot and should not make orders which are futile, impractical
or ineffective.58. It is therefore necessary to examine
the submissions made that orders, either in the form made in the High Court
in this case or even in the more limited form now contended for by counsel
on behalf of the Attorney General, are orders which are so incapable of
supervision or enforcement that they must be deemed to be futile and, therefore,
never orders which can properly be made by the courts.59.
I would accept that in a great number of instances, living in a country
which has a land frontier and in an age which has such wide and varied
facilities of travel, the making of orders restraining an individual from
travelling out of the jurisdiction either for a specified time or for a
specified purpose would be impossible to supervise and impossible to enforce
except in the negative sense of possible imposition of punishment or sanctions
after the order had been disobeyed. The imposition of such penalties, except
to the extent that they might provide a deterrent, would not be an effective
defence of the right of the unborn to life.60. Whilst
this is so, it is clear that in the instant case the orders made in the
High Court, firstly, by way of an interim injunction and subsequently by
way of a permanent injunction, were orders which until they were discharged
by the ruling of this Court on appeal were wholly effective to achieve
the purpose for which they were made. The fact that they were so effective
was entirely due to the strikingly commendable attitude of all of the three
defendants in this case, notwithstanding the anguish which they were suffering,
of being willing and anxious to abide by the lawful orders of the court.
It may, unfortunately, be true that a great number of people exist who
would not have such a proper approach to the orders made by a court in
pursuance of the defence of the right to life of the unborn.61.
Having regard, however, to the obligation of the courts to vindicate and
defend that right and to use every power which they may have in an attempt
to achieve that objective I do not consider that it can be said that a
mere expectation that a significant number of people may be unwilling to
obey the orders of a court could deprive that court from attempting, at
least, in appropriate cases to discharge its constitutional duty by the
making of an injunction restricting, to some extent, the right to travel
of an individual.
Issues which arose under European Law
62. It was submitted on behalf of the defendants as
a further alternative to all other submissions that even if the orders
restraining the first defendant from leaving the jurisdiction for the purpose
of having an abortion carried out, were permissible under Irish constitutional
law, they were prohibited by European law as being in breach of Article
59 of the Treaty of Rome, which effectively provides a freedom for persons
to travel from one Member State to another for the purpose of availing
of a service in that other Member State, the performance of the operation
of abortion being, within the meaning of European law, such a service.
A prohibition on that right, it was submitted would have been in conflict
with Directive 73/148/EEC. In the High Court this submission was disputed
on behalf of the Attorney General by reference to Article 8 of the Council
Directive 73/148/EEC, which provides that:—“Member States shall not derogate
from the provisions of thisDirective save on grounds of public policy,
public security or public health.” 63. It was
submitted that the Eighth Amendment and the legal consequences which flow
from it, including the jurisdiction of the courts to prohibit persons from
leaving the country to obtain an abortion, amounted to a derogation by
Ireland from those principles which is permitted on the grounds of public
policy. The learned trial Judge was not requested to make any reference
of that issue to the European Court of Justice under Article 177, and was
not, of course, as a court of first instance obliged to make such a reference.
He concluded that the amendment and the legal consequences did constitute
such a derogation and that the making of such an order would not be inconsistent
with European law. Article 177 of the Treaty of Rome provides as follows:—“The
Court of Justice shall have jurisdiction to give preliminary rulings concerning:
(a) the interpretation of this Treaty;(b) the validity and interpretation
of acts of the institutions of the Community;(c) the interpretation of
the statutes of bodies established by an act of the Council, where those
statutes so provide.Where such a question is raised before any court or
tribunal of a Member State, that court or tribunal may, if it considers
that a decision on the question is necessary to enable it to give judgment,
request the Court of Justice to give a ruling thereon.Where any such question
is raised in a case pending before a court or tribunal of a Member State,
against whose decisions there is no judicial remedy under national law,
that court or tribunal shall bring the matter before the Court of Justice.”64.
In a judgment delivered by me in Avonmore Creameries Ltd v. An Bord
Bainne Co-Operative Ltd (Unreported, Supreme Court, 21st March, 1991
),
with
which McCarthy J. and 0 ‘Flaherty J. agreed, I set out the consequences
of that Article in so far as they affected the Supreme Court as a court
of ultimate appeal, in the following terms:—“In any case where a judge
of first instance has, as he is clearly entitled to do, reached a decision
on one or more questions of European Community law coming within the categories
mentioned in Article 177 of the Treaty, this Court as a final court of
appeal cannot affirm, vary or reverse such a decision, but must, if the
resolution of such questions is necessary to enable it to give its judgment,
refer those questions for a preliminary ruling to the Court of Justice
of the European Communities pursuant to Article 177. If, of course, this
Court decides that the resolution of such questions is not necessary to
enable it to give judgment in the case, then, no reference is made. In
either event, it is not appropriate for this Court to express any view
on issues of European Community law arising in this manner, except for
the particular instance where it may conclude that what was alleged to
be an issue of EC law is in fact incapable of any but one resolution, and
has so clearly been determined.” 65. In this
case the Court has decided the question at issue in the case without reference
to the submissions which were, of necessity, alternative submissions made
under European law. No decision on any question of European law is therefore
necessary to enable the Court to give its judgment. In these circumstances,
I am satisfied that there can be no question of referring any question
of such law to the Court of Justice of the European Community pursuant
to Article 177, as there is no provision in that code for the determination
by that court of any question of law as a moot at the instance of a national
court.In Doyle v. An Taoiseach [1986] I.L.R.M. 693, Henchy J. delivering
judgment in this Court, with which the other members of the Court agreed,
stated as follows, at p. 714 of the report:—“I consider that a decision
on a question of Community law as envisaged by Article 177 of the Treaty
of Rome is not necessary to enable this Court to give judgment in this
case. Just as it is generally undesirable to decide a case by bringing
provisions of the Constitution into play for the purpose of invalidating
an impugned law when the case may be decided without thus invoking constitutional
provisions, so also, in my opinion, should Community law, which also has
the paramount force and effect of constitutional provisions, not be applied
save where necessary for the decision in the case.”66.
Apart from the practical time scale difficulties of obtaining a ruling
by way of preliminary ruling from the Court of Justice of the European
Community, pursuant to Article 177 of the Treaty, in time for the due resolution
of the problems arising in this case, it is consistent with the jurisprudence
of the Court that there being a ground on which the case can be decided
without reference to European law, but under Irish law only, that method
should be employed. Hederman J.67.
I agree with the judgment delivered by the Chief Justice regarding the
right of the Attorney General to institute these proceedings. Once the
matter was brought to his attention he was obliged in the discharge of
his office to bring the matter immediately to the attention of the court.
It was his duty to ascertain as quickly and as fully as he could the facts
of this particular case but the decision on whether the girl should be
allowed to have an abortion was exclusively a matter for the court.68.
I also agree that though the Oireachtas had not enacted any law purporting
to regulate the manner in which the right to life of the unborn and the
right to life of the mother referred to in the Eighth Amendment should
be reconciled, the Court has jurisdiction to make such orders as it thinks
proper to give effect to the Amendment. In the absence of legislation not
in conflict with the Constitution it must fall to the Court pursuant to
Article 40, s. 3, sub-s. 3 to reconcile the conflict between the right
to life of the unborn and the right to life of the mother.
The nature and effect of the Eighth Amendment
69. Counsel for the defendants submitted that as parents
and as a family the defendants are entitled to pursue a decision “made
in conscience” after the alleged rape of their daughter who became pregnant.
He submitted that the case comes down to a matter of law; of interpretation
of the Eighth Amendment and the rights of the first defendant in the title.
He further submitted she has rights under the Constitution to do what she
decided to do, i.e. to go to England for the purpose of having an
abortion. He submitted that there was no guidance to define the equal rights
to life of the mother with the unborn and submitted that the trial judge
purported to define a clear rule of law from the Amendment. He further
submitted that the Court, in determining the mother’s rights under the
Eighth Amendment, should have regard to the decisions of this Court in
G. v. An Bord Uchtála [1980] I.R. 32; McGee v. The Attorney
General [1974] I.R. 284 and in particular pp.318/319 of that judgment
and Norris v. Attorney General [1984] I.R. 36 . Counsel also
submitted that the manner in which the law was to be applied should be
as set out in Rex v. Bourne [1939]1 K.B. 687.70.
In that case a fifteen year old girl became pregnant as a result of a violent
rape. A surgeon of the highest skill, without fee, performed the operation
of abortion. He was subsequently tried under s. 58 of the Offences against
the Person Act, 1861. The jury were directed that it was for the prosecution
to prove beyond reasonable doubt that the operation was not performed in
good faith for the purpose only of preserving the life of the girl. The
surgeon had not got to wait until the girl was in peril of immediate death
but it was his duty to perform the operation “if a doctor using his best
judgment comes to the opinion that the continuance of the pregnancy will
endanger the life of the mother or make her a physical or mental wreck,
he is not only entitled but it is his duty to perform the operation, and
the operation will not be unlawful.” Counsel in this case accepted that
if the consequences of the continued pregnancy would be to make the patient
a physical and mental wreck, that fact alone would not suffice to justify
an abortion. He submitted that the true test is, “as a matter of probability,
is there a real or substantial risk of the right to life of the mother?”
This test, he submitted, the learned High Court judge had not applied.
He further submitted that the Eighth Amendment does not give the absolute
right to life to the unborn child or to the mother. “The two rights are
juxtaposed as equal.” The Amendment recognises the conflict which may arise
and require reconciliation. Explicit in the Amendment is the duty to defend
and vindicate that right, i.e. the right of the unborn. He submitted
that the “real or substantial risk to the life of the mother” is a test
which is consistent with the Eighth Amendment. If any other test is applied
it would not be right for the courts to second-guess the decision of the
parents which was justified by the evidence in this case. He further submitted
that if a court were to adopt a higher test than that, then there is not
an adequate protection of the mother as that would be in breach of her
equal right to life and such a decision would be contrary to the common
good. If the test is immediate danger he submitted it was not an adequate
protection of the mother’s equal right to life. The learned trial judge,
he submitted, resolved the question by putting too great an emphasis on
the risk to the unborn against the risk to the health of the mother, as
in this case, on his submissions, the risk of death of the mother is “real
and substantial”. Because the learned trial judge held that the risk is
much less and of a different order of magnitude to that of the mother,
therefore he says that the risk to the mother must always be less than
the risk to the unborn. He submitted that the life of the unborn is “putative”,
if there is no life for the mother, then there is no life for the unborn.
The unborn life he submitted, “is contingent” on the life of the mother
and justifies the tests that he submits should apply to the mother’s right
to life.
The evidence on which the above submissions were made
71. In an affidavit sworn on the 10th February, 1992,
the mother of the girl, the third defendant, in the course of her affidavit
stated that the first defendant was born on the 15th July, 1977; that on
the 22nd January, 1992, the first defendant complained to her and to her
husband that she had been sexually abused for over eighteen months by a
close male friend of the family and that on the 7th December, 1991, she
“had been raped” by this man. On the 4th February it was medically confirmed
that the first defendant was nine weeks pregnant. She said that on discovering
she was pregnant her daughter was extremely upset and distraught and informed
both her and her husband that she wanted to kill herself by throwing herself
down the stairs. She also stated that both herself and her husband were
also extremely upset. She said that as a family they went through the options
available: that her daughter had been through a harrowing experience, having
been raped by a person who had sexually abused her over a period of time.
The daughter emphatically stated she felt no love for the child. The daughter
also expressed the view that were she to have the baby she would not be
able to look at its face when it was born, but at the same time felt that
she could not give up the child for adoption lest it would suffer the same
fate as she had at the hands of the man who had abused her. The mother
went on to depose:—“We discussed the possibility of termination of her
pregnancy and the first defendant was totally in agreement with the suggestion.
I say and believe that both myself and the second defendant (the father)
felt that in the circumstances of the case it was the best option and the
option that would serve our daughter’s welfare to the greatest extent.”72.
She went on to depose that arrangements were made to travel to London for
the termination of the pregnancy but prior to the time set for the operation
the husband was in contact with the gardaí in Dublin and was informed
over the telephone of the making of the orders of the High Court. Immediately
all plans in relation to the termination of the pregnancy ceased and the
family returned to Ireland. Continuing her deposition the mother avers
that the family:—“truly believes that the best course of action in the
interests of the first defendant is to terminate her pregnancy.”73.
She said that she and her husband were fearful of their daughter’s mental
health if she had to bring the pregnancy to full term and further that,
while returning from London her daughter said that she wanted to throw
herself under a train. The daughter felt she had put the parents through
a lot of difficulty because of her situation and would rather be dead than
continue as she was. She said that the daughter is clear in her own mind
and “has repeated to us on a number of occasions because of the circumstances
of its conception. I this deponent and the second defendant herein are
extremely fearful that she may suffer a complete mental breakdown if a
termination does not take place. I believe because of the distress and
difficulty the first defendant was experiencing on her return to Ireland.
. . we brought her to a clinical psychologist for counselling” and the
deponent exhibits the opinion of the psychologist.74.
A member of the gardaí swore an affidavit on the 5th February, 1992.
He deposes that he first became aware of these events on Friday the 31st
January, 1992, when informed by a woman garda and was present at a garda
station on the 3rd February, 1992, when the first defendant gave a detailed
statement of alleged indecent assaults and alleged rape. He further averred
that the first defendant, while making the statement, said she feared she
would not be believed as the person whom she named in the statement is
an adult and much older than she. After the interview the mother of the
first defendant mentioned the possibility of the use of D.N.A. “fingerprinting”
to assist in corroboration of the matters of which the daughter complained.
On enquiries the garda was satisfied that such testing could not be carried
out on a foetus in the womb. On the 4th February the deponent was informed
by a doctor that the first defendant was pregnant. The garda was also informed
by the mother that the family had discussed the possibility of ending the
pregnancy and asked him if they were to decide to take this course, would
it be possible to arrange a person to attend or be present in England to
carry out tests on the foetus for the purpose of corroboration. On making
enquiries the garda was informed that any such evidence by way of D.N.A.
“fingerprinting” in the circumstances described, would be illegal, unconstitutional
and not admissible in evidence. On the 5th February he telephoned the defendants’
household and informed them of the advice he had received. Both parents
were disappointed and distressed. The mother then informed the detective
that all three of the defendants were going to England on the following
day.75. A woman garda also made a deposition on the
6th February, 1992. She deposed that on the 30th January she was contacted
by the same doctor, attached to a sexual assault unit to the effect that
the presence of a garda was required at the unit. There she saw all three
defendants and ultimately on the 3rd February took a detailed statement
from the first defendant in the presence of her mother.76.
In the High Court on the 11th February, 1992, the garda was sworn for the
purpose of being examined by counsel for the defendants. In the course
of her cross-examination she stated that when she met the first defendant
while in the sexual assault unit, she told the witness that she thought
about running away; that would be the end of the matter. She also stated:—“She
did not say in my presence that she thought about killingherself but did
say she was looking at ways out of this particular situation and thought
about running away.”77. That was on the Thursday.
On the following morning the witness was with the first defendant for approximately
five hours. She said the first defendant seemed fairly withdrawn but that
when she did talk she was very specific about what she said. The defendant
said:—“I wish this was all over. Sometimes I feel like throwing myself
down the stairs.”78. A clinical psychologist practising
in Ireland since 1979, with six years experience in child psychology, but
not a medical practitioner, was called by counsel for the defendants. His
report had already been exhibited. He examined the first defendant on 7th
February at the request of her parents. In the course of this report he
states:—“She seemed almost in a trance and she herself stated that she
could not believe this was happening to her. While she told me she had
been crying on her own she hides her feelings deliberately from her parents
in order to protect them from further distress. Her vacant expressionless
manner suggests she is coping with this appalling crisis in her life by
denial of her emotions. For this reason she did not seem depressed, but
I fear that when her feelings surface she will face a psychological crisis.She
coldly expressed a desire to solve matters by ending her life. In this
withdrawn state, she is capable of such an act, not so much because she
is depressed, but because she could calculatingly reach the conclusion
that death is the best solution. As her pregnancy proceeds, the psychological
damage of carrying a child that she has emotionally rejected, and which
she blames for the ruination of her life could be considerable. She is
only too aware that her schooling will suffer, that she will have to repeat
a year and lose her friends. Her sense of being a victim, and of self blame
will increase. There is no doubt in my mind that the damage of this pregnancy
to her mental health is going to be devastating.”79.
In the course of replies to questions during the High Court hearing he
stated:—“I was asked to see her (the first defendant) with one specific
question to be answered — what was her emotional state given the recent
events? My assessment was on that alone.”80. He said
he found the child strangely distanced from her emotions. . . she did not
seem depressed but seemed almost calculatingly rational about her state.“This
is what disturbed me most of all, that she was able to talk about not wishing
to put her parents through more of this — ‘I thought about not putting
my parents through more, it would be better to end it now than nine months
more. It is hard to understand. . . it is hard at fourteen to go through
nine months’.”81. He was asked “Have you met adolescent
teenagers who are a danger to themselves?”82. Answer:
“I have, as have all psychologists and people who work in this area. I
have had patients who have unfortunately taken their lives.”83.
Question: “Could I put it like this, is this a constant element of your
experience?”84. Answer: “It is always a constant worry
with depressed people but in this particular case I felt it was something
I would have to protect myself against...I wanted to speak to the parents
on their own. I decided I could not risk leaving her on her own in a waiting
room. Professionally I could not take that risk. I brought her into the
room and sat her behind the parents while I was talking to them.” 85.
Later the witness said:— “She is in a crisis but I don’t think she has
realised the full emotional impact of that. Currently the pregnancy for
her is ‘a pain’. A pain is all she is aware of. If she was aware of more
she might become panicky about the situation she was in.” 86.
The witness went on to say:— “She did not state an intention of how she
would do it (suicide). Simply I concluded it. That is why I used
the term ‘clearly to me ending her life might end her parents’ problems’.” 87.
Question: “....This morning the detective said that on the 30th January
he was at the home of the first defendant for a number of hours and heard
her remark that she would throw herself down the stairs. Does that reflect
what you found in the interview?”88. Answer:“That
certainly is one of the kinds of behaviour I would have seen as a risk
with this girl.”89. Question: “The final sentence
of your report — ‘There is no doubt in my mind the damage of this pregnancy
to her mental health is going to be devastating.”Answer: “Yes.”90.
Question: “Can you express to my Lord the dimensions of this?”91.
Answer: “It is all hypothetical at present. I am willing to stand over
my statement. This girl is going through a traumatic episode and the pregnancy
will involve further trauma which will be permanent damage to her state.
For example, there is a high level of guilt and confusion within the child..
That wonderment. . . that confusion is going to persist and this is going
to go on and on and on and even after there is no real end to the concern...
this kind of concern is something we must bear in mind in the case of this
girl. Her state, as I saw it, was suggesting that she was going to go through
this kind of distress for years to come.”92. Later,
he was asked:—93. Question: “In relation to her parents,
is there a well-founded relationship with her parents so far as you could
establish?”94. Answer: “Yes, and one of the things
she said, perhaps three times — ‘I don’t know why I kept it to myself so
long. I should have told them more.’ In the same context — ‘I should not
be putting them through this. I cannot be putting them through this. .
. I cannot put them through more. I have put them through enough’.”95.
Question: “We know the parents and the first defendant resolved that they
would deal with this by going to London and getting a termination of the
pregnancy. If that were not to occur now, would it have an effect on her?
Would you be able to answer?”96. Answer: “I believe
we are in a dilemma what ever happens this child now. The damage — and
it is a question of minimising the damage. It was my belief minimising
it would be best achieved by minimising the episode, by putting some certainty
into her life.”97. Question: “Can you say the effect
to which that uncertainty affects her mental stability?”.98.
Answer: “She seems to be a bright child, I did not do any testing to confirm
this, but she seemed also to be under-achieving. I felt she has potential
and that is going to suffer. She herself is only too aware. She is going
to miss a year, be kept down in school and be harmed socially as a result,
as well as academically.”99. In cross-examination
the psychologist said:—“My recommendation would be she was not safe unless
under supervision. I would have thought, given the state which I found
her in, in-patent treatment would be essential. I don’t think the parents
can offer 24-hour supervision.”100. The witness also
said that in the last two years he had come across about half a dozen girls
under seventeen who were pregnant. Two went for adoption, two for termination,
the other three he did not know what happened. One was fifteen, nearly
sixteen, the other two in their sixteenth year and another had a child
under seventeen. Two of the pregnancies were as a result of incest, three
by boyfriends but the girls were under age and another was by an uncle.
When asked “have you ever had a patient say she would in effect destroy
herself because she had become pregnant in this way?” he answered:“Not
within the age-range I am talking about. I have had wives say they would
not tolerate another pregnancy from a man they detested. The specific situation
relating to the first defendant. No.”101. Question:“As
far as her physical health is concerned, insofar as it is within your competence,
how would you describe that to the court, her physical well-being, her
psychological well-being?”102. Answer:“I saw her
probably at her weakest. She had been vomiting for four days and had not
kept food down. She was in pain. I was concerned about her physical state
and was relieved when told by her parents she had been admitted to the
hospital and placed in a situation where she could be fed. She was pale,
wan and weak-looking.”103. Question: “Apart from
that, from an ordinary physical prospect, did you see her life as being
in danger?”104. Answer: “I don’t think I am competent
to talk about whether her life was in danger from the pregnancy. That is
best asked of the people supervising her. If she went on vomiting I don’t
think I need to be an expert to say it would endanger her health. She had
not been able to hold anything down for four days.”105.
Later the witness was asked:—106. Question: “Is it
your professional view that she would destroy herself if matters continue
as they are?”107. Answer: “I would not have taken
it on myself to leave that girl alone in the state I saw her.”108.
Question: “But you only dealt with similar traumatic experience with slightly
older girls where a pregnancy obviously ran full term?”109.
Answer: “In Stafford I once left a distressed girl on her own. She ran
away. It took the police a day and a half to find her. I was chastened
by that experience, never to take a risk with anybody emotionally disturbed.
I did feel she would pose a risk if I left her on her own.”110.
Question: “How would she be at risk?”111. Answer:
“It depends how long we protract this trauma for her.”112.
Question: “Do I take it therefore that she in effect would commit suicide
if there was not a termination or abortion?”113.
Answer: “I feel she might commit suicide or decide to terminate it herself
by throwing herself down the stairs or something like that. That is the
kind of thing that happened in previous cases I dealt with where girls
attempted to gain abortion.”114. Question: “Is that
more prevalent when pregnancy is just confirmed or might it lessen if the
matter is not ended?”115. Answer: “It often increases
because you can feel the kicking of the child inside you and you perhaps
become more aware of the pregnancy. At present there are no physical symptoms.
The child just feels pain.”116. The fact that this
girl is pregnant clearly proves that somebody is guilty of unlawful carnal
knowledge of a girl under the age of fifteen years. The proof of such an
offence does not depend on the absence of consent of the girl. So far as
the allegation of rape is concerned it must for the purpose of this case
remain an allegation as neither the High Court nor this Court can decide
whether or not there was a rape by the person alleged by the first defendant
or any person.
The law
117. The case on behalf of the defendants has not
been presented on the basis that a rape would justify an abortion.118.
The Eighth Amendment to the Constitution of Ireland is contained in Article
40, s. 3, sub-s. 3 and reads 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.”119.
Article 40, s. 3, sub-s. 3 is preceded by Article 40, s. 3, sub-s. 2 which
states:—“The State shall, in particular, by its laws protect as best it
mayfrom unjust attack and in the case of injustice done, vindicate the
life, person, good name and property rights of every citizen.” 120.
In interpreting any Article in the Constitution the Court must give to
the words in that Article their ordinary meaning with due regard to the
other Articles of the Constitution.121. In the decision
of this Court in McGee v. Attorney General [1974] I.R. 284 at p.284
at p. 315 , Walsh J. stated his opinion that by virtue of the terms
of Article 40, s. 3 of the Constitution, the State had the positive obligation
to ensure by its laws as far as is possible (relying on the Irish text
of the Constitution) that a married woman should have available to her
a means which would prevent a conception which was likely to put her life
in jeopardy over and above the ordinary risks inherent in pregnancy. The
reference to s. 3 of Article 40 was a reference to the general obligation
undertaken by the State to vindicate the life of its citizens and indeed
to protect their lives, and would be applicable to all lives which would
require protection in particular circumstances. The context in which it
arose in McGee’s case was the context of prevention of the creation
of life. That is legally, morally and psychologically different from acts
interfering with a life already created. But that constitutional provision
could also be invoked in circumstances where a life had already been created
as was pointed out by Walsh J. at p. 312 of the same report. The application
of the provision, and the nature of the form of application adopted by
the State to honour its guarantees must necessarily depend upon the particular
circumstances of every case in which it is sought to invoke the Article
in question. It would be a mistake to think that Article 40, s. 3, sub-s.
2 or the Eighth Amendment refer only to the creation or destruction of
life. It appears to me that they can also be invoked to deal with other
situations, and might be invoked by the mother of an unborn child or others
to protect it from injury by adverse environmental conditions, the use
of various toxins in the air and other health or life threatening situations.
It is a protection which all lives may invoke or have invoked on their
behalf. Article 40, s. 3, sub-s. 2 as invoked in the McGee case
could have been equally invoked at the time for the protection of an unborn
life, as if, for example, Mrs. McGee had been pregnant and was in some
way being deprived of some procedure or other treatment or medicines, the
absence of which would threaten the life of the child she was carrying.
The Eighth Amendment to the Constitution was quite clearly designed to
prevent any dispute or confusion as to whether or not unborn life could
have availed of Article 40 as it stood before the Eighth Amendment. The
Eighth Amendment made it clear, if clarity were needed, that the unborn
life was also life within the guarantee of protection. It went further,
and expressly spelled out a guarantee of protection of the life of the
mother of the unborn life, by guaranteeing her life equality — equality
of protection, to dispel any confusion there might have been thought to
exist to the effect that the life of the infant in the womb must be saved
even if it meant certain death for the mother. The death of a foetus may
be the indirect but foreseeable result of an operation undertaken for other
reasons. Indeed it is difficult to see how any operation, the sole purpose
of which is to save the life of the mother, could be regarded as a direct
killing of the foetus, if the unavoidable and inevitable consequences of
the efforts to save the mother’s life leads to the death of the foetus.
But like all examples of self-defence, of which this would be one, the
means employed to achieve the self-protection must not go beyond what is
strictly necessary. The most significant aspect of the provisions of Article
40, s. 3 and of the Eighth Amendment is the objective of protecting human
life which is the essential value of every legal order and central to the
enjoyment of all other rights guaranteed by the Constitution. The constitutional
provisions amount to a dedication to the fundamental value of human life.
The Eighth Amendment establishes beyond any dispute that the constitutional
guarantee of the vindication and protection of life is not qualified by
the condition that the life must be one which has achieved an independent
existence after birth. The right of life is guaranteed to every life born
or unborn. One cannot make distinctions between individual phases of the
unborn life before birth, or between unborn and born life. Clearly the
State’s duty of protection is far reaching. Direct State interference in
the developing unborn life is outlawed and furthermore the State must protect
and promote that life and above all defend it from unlawful interference
by other persons. The State’s duty to protect life also extends to the
mother. The natural connection between the unborn child and the mother’s
life constitutes a special relationship. But one cannot consider the unborn
life only as part of the maternal organism. The extinction of unborn life
is not confined to the sphere of private life of the mother or family because
the unborn life is an autonomous human being protected by the Constitution.
Therefore the termination of pregnancy other than a natural one has a legal
and social dimension and requires a special responsibility on the part
of the State. There cannot be a freedom to extinguish life side by side
with a guarantee of protection of that life because the termination of
pregnancy always means the destruction of an unborn life. Therefore no
recognition of a mother’s right of self-determination can be given priority
over the protection of the unborn life. The creation of a new life, involving
as it does pregnancy, birth and raising the child, necessarily involves
some restriction of a mother’s freedom but the alternative is the destruction
of the unborn life. The termination of pregnancy is not like a visit to
the doctor to cure an illness. The State must, in principle, act in accordance
with the mother’s duty to carry out the pregnancy and, in principle must
also outlaw termination of pregnancy.122. The State’s
obligation is to do all that is reasonably possible having regard to the
importance of preserving life.123. In the sphere
of criminal law, in the Offences against the Person Act, 1861, the penalty
for unlawful termination of pregnancy can be life imprisonment. This is
what might be thought to be the endeavour to achieve the objective by deterrents
which have not proved, where similar statutory provisions apply, to have
done much to save lives. Therefore in Article 40, s. 3, sub-s. 3 of the
Constitution the State has not confined itself by any means to the field
of penal law by relying upon punitive provisions. Obviously to succeed
in saving a life is of far greater benefit than the infliction of punishment
for the destruction of that life. The State therefore can be obliged to
take positive action to intervene to prevent an imminent destruction of
life and one obvious way is by a restraining order directed to any person
who is threatening the destruction of the unborn life where known to the
State. That can include restraint of the mother of the child where she
is the person or one of the persons threatening the continued survival
of the life. In such a case the most appropriate person to move for such
restraint is the Attorney General. One of his functions is to represent
the public interest and to defend the public interest as has been recognised
by this Court in its decisions in The Attorney General (S.P.U.C.) v.
Open Door Counselling Ltd. [1988] I.R. 593 and S.P.U.C. v. Grogan
[1989]
I.R. 734. When the protection of the courts is invoked it will only be
granted where the life to be protected is within the jurisdiction of the
Courts, or the threat lies within the jurisdiction and the persons sought
to be restrained are also within the jurisdiction of the courts.124.
If that involves restraint upon the removal of the protected life from
the jurisdiction it necessarily involves the restraint of the movement
of the pregnant woman. A restraint upon leaving the territory of the jurisdiction
of the courts would in the ordinary way be a restraint upon the exercise
of the constitutional right to travel but the competing right is the preservation
of life and of the two the preservation of life must be deemed to be paramount
and to be sufficient to suspend for at least the period of gestation of
the unborn life the right to travel. This is much less a diminution of
constitutional rights than the irrevocable step of the destruction of life.
With regard to the principles applicable to competing constitutional rights
see the judgments of this Court in The People (Attorney General) v.
O’Brien [1965] I.R. 142; Quinn’s Supermarket v. The
Attorney General [1972] I.R. 1 and The People v. Shaw [1982]
I.R. 1.125. It is to be noted that there are several
other areas in which the right to travel can be restricted as for example
a person who is on bail can be bound not to leave the jurisdiction without
the permission of the court; persons who are wards of court cannot be taken
out of the jurisdiction without the express permission of the court.126.
It is necessary to emphasise that the application before the High Court
and this Court is not in the sphere of criminal law and there is no question
of the imposition of punishment on anybody. I have already referred to
the existing criminal law dealing with the unlawful termination of pregnancy
within the jurisdiction. However lest it should be thought that that is
the limit of the legislative powers of the State it should be borne in
mind that the Oireachtas enjoys power to make laws of extra-territorial
jurisdiction also as is set out in Article 3 of the Constitution and as
has been upheld by this Court in the reference of the Criminal Law Jurisdiction
Act, 1976. See In re Criminal Law (Jurisdiction) Bill, 1975 [1977]
I.R. 129. If the State was of opinion that further penal provisions should
be enacted it is quite within the competence of the Oireachtas to make
the Irish criminal law applicable to acts committed outside the jurisdiction
regardless of the law of the place of commission. This is a type of extra-territorial
jurisdiction which is exercised to a greater or lesser degree by all our
fellow member states in the European Community. For example, within our
existing penal law, the offence of bigamy is triable within this jurisdiction
no matter where the offence is committed.127. In
the course of the arguments before this Court reliance was placed upon
the ruling of the trial judge in Rex v. Bourne [1939] 1 K.B. 687
where he instructed the jury that if the object of the operation in that
case was one made in good faith and had as its only purpose the saving
of the life of the mother then it did not come within the term “unlawfully”
as appears in the statute. It should be remembered however that that decision
relied upon the Infant Life Preservation Act, 1929, as the judge said that
the word “unlawfully” in the Act of 1861 imported the same meaning as that
contained in the proviso to s. 1 of the Act of 1929 which imported a question
of whether the act concerned was or was not done in good faith and for
the purpose only of preserving the life of the mother. The Act of 1929
did not of course apply to this jurisdiction nor is there any similar provision.
The Act of 1929 applied to cases where a child, who was born alive, was
killed after it had an existence independent of its mother while under
the Act of 1861 it is not necessary to prove that the child is capable
of being born alive to establish the offence of what is popularly called
a criminal abortion, although that term does not appear in the Statute.
The killing acknowledged in the English Act of 1929 if adopted in this
jurisdiction could lead to a charge of murder. At common law abortion was
not treated as murder because by common law the definition of murder related
only to the homicide of a person born alive although abortion as an offence
also at one time was a capital offence. However the terms of the Constitution
totally exclude any possible suggestion that the unborn life is any less
a human life than a life which has acquired an existence independent of
its mother. The common law definition of murder excluded the killing of
an unborn child and on the other hand the common law dealing with the law
of property could deem an unborn child to be “a life in being”, for example,
in the rule against perpetuities. While there has never been any court
ruling in this jurisdiction on whether the successful defence in Rex
v. Bourne [1939] 1 K.B. 687 would have been accepted as a correct interpretation
of the Act of 1861, it is clear that the interpretation of the Constitution
cannot be made to be dependent upon the provisions of a statute, particularly
a statute which was passed almost a century before the Constitution itself
was enacted. Even if one were to assume that the Bourne interpretation
could be given in this jurisdiction to the statute it goes to the question
of mens rea in a criminal case. It is also to be borne in mind that
the learned judge in that case stated that “the desire of the woman to
be relieved of her pregnancy is not justification”.128.
The Eighth Amendment does contemplate a situation arising where the protection
of the mother’s right to live has to be taken into the balance between
the competing rights of both lives, namely the mother’s and the unborn
child’s. Abortion as a medical procedure is unique in that it involves
three parties. It involves the person carrying out the procedure, the mother
and the child. It is inevitable that if the procedure is adopted the child’s
life is extinguished. Therefore before that decision 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. In the present
case neither this Court nor the High Court has either heard or seen the
mother of the unborn child. There has been no evidence whatever of an obstetrical
or indeed of any other medical nature. There has been no evidence upon
which the courts could conclude that there are any obstetrical problems,
much less serious threats to the life of the mother of a medical nature.
What has been offered is the evidence of a psychologist based on his own
encounter with the first defendant and on what he heard about her attitude
and behaviour from other persons, namely the Garda Síochána,
and her parents. This led him to the opinion that there is a serious threat
to the life of the first defendant by an act of self-destruction by reason
of the fact of being pregnant. This is a very extreme reaction to pregnancy,
even to an unwanted pregnancy. But as was pointed out in this Court in
S.P.U.C.
v. Coogan [1989] I.R.734 the fact that a pregnancy is unwanted was
no justification for terminating it or attempting to terminate it. If there
is a suicidal tendency then this is something which has to be guarded against.
If this young person without being pregnant had suicidal tendencies due
to some other cause then nobody would doubt that the proper course would
be to put her in such care and under such supervision as would counteract
such tendency and do everything possible to prevent suicide. I do not think
the terms of the Eighth Amendment or indeed the terms of the Constitution
before amendment would absolve the State from its obligation to vindicate,
and protect the life of a person who had expressed the intention of self-destruction.
This young girl clearly requires loving and sympathetic care and professional
counselling and all the protection which the State agencies can provide
or furnish.129. There could be no question whatsoever
of permitting another life to be taken to deal with the situation even
if the intent to self-destruct could be traced directly to the activities
or the existence of another person.130. It has not
been argued that the words “having regard to the equal right of life of
the mother” should be construed more widely than preserving the life of
the mother and should be construed to be wide enough to include a situation
where the best expert opinion is to the effect that the continuance of
the pregnancy would be to make the mother a physical wreck. I do not think
the word “life” in this context is to be construed any differently from
the word “life” in the earlier part of the same Article though the State
would be obliged to do all it reasonably possibly can to take steps to
prevent anybody becoming a physical or a mental wreck, short of taking
innocent life to achieve it. Fortunately the Court does not have to decide
this matter now but has to decide the matter in the context of a threat
of suicide. 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 child at the
same time. The choice is between the certain death of the unborn life and
a feared substantial danger of death but no degree of certainty of the
mother by way of self-destruction.131. On the vital
matter of the threat to the mother’s life there has been a remarkable paucity
of evidence. In my opinion the evidence offered would not justify this
Court withdrawing from the unborn life the protection which it has enjoyed
since the injunction was granted.132. Since this
hearing commenced the solicitors for the defendants sought particulars
as to how the plaintiff would or could enforce the injunction preventing
the first defendant from leaving the jurisdiction. In reply to these requisitions
the Attorney General directed that counsel of his behalf should submit
to the Supreme Court that in the event of its dismissing the appeal by
the defendants that the Court should alter the order of the High Court
insofar as it is unconditionally restraining the first defendant from leaving
the jurisdiction (i.e. from leaving it under any circumstances or
for any purpose). Instead it is considered that it would be sufficient
to make an order restraining her from leaving the jurisdiction for the
purpose of having an abortion outside the State.133.
In these new circumstances, unless the Court could make an injunction of
the nature already granted by Costello J., prohibiting the defendant from
leaving the jurisdiction, it could not effectively discharge its constitutional
obligation of protecting the unborn life. If the defendants were to travel
out of the jurisdiction and the first defendant had an abortion, the Court
could only deal with the question of contempt of Court if the defendants
returned to the jurisdiction, but could not restore the unborn life. Therefore
this Court should not grant the injunction at (b) in the terms now sought
by the Attorney General.134. I would uphold the order
of the High Court at paragraphs (a) and (c) of his order and would make
no order in respect of paragraph (b). McCarthy J.135.
The facts of this matter have been fully set out in the judgment of the
Chief Justice.
(1) The role of the Attorney General
In S.P.U.C. v. Coogan [1989] I.R. 734, this Court held that any
party who had a bona fide concern and interest, which interest connoted
proximity or an objective interest, in the protection of the constitutionally
guaranteed right to life of the unborn had sufficient standing to invoke
the jurisdiction of the courts to take such measures as would defend and
vindicate that right, affirming its view as expressed in The Attorney
General (S.P. U.C.) v. Open Door Counselling Ltd [1988] I.R. 593 at
page 623. I disagreed with the conclusion in Coogan’s case since
I did not consider the point to have been decided in the Open Door case.
I accept the law as stated by the majority in Coogan’s case. All
the judgments identified the Attorney General as the person appropriate
to call in aid the courts to enforce the right of the unborn; in S.P.U.C.
v. Grogan [1989] I.R. 753, this Court endorsed the earlier decision.
In my judgment in Coogan’s case at p.751 I observed that “If, as
submitted on behalf of the Society, the whole nature and quality of Irish
society is affected by the right, it would appear to be a public right,
ordinarily in the province of the Attorney General”. It is beyond question
that the Attorney General is empowered to invoke the guarantee. If, as
in this case, the termination of pregnancy is imminent, and the prospective
mother is leaving or has left the jurisdiction for that purpose, in my
view the Attorney General is constitutionally entitled to apply to the
court to make such order as is necessary and appropriate. It is a power,
function and duty imposed on him by the Constitution.
(2) The guarantee
136. Article 40, s.3, sub-s. 3 provides:— “The State
acknowledges the right to life of the unborn and, withdue 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.” 137.
In the course of this appeal some discussion took place as to the version
of this sub-section in the Irish language and, in particular, in respect
of the phrase “sa mhéid gur féidir e” which in English is
stated “as far as practicable”. A like discussion arose in O’Donovan
v. The Attorney General [1961] I.R. 114 and In re The Electoral
(Amendment) Bill, 1961 [1961] I.R. 169. It was there considered that
in the context of Article 16, s.2, sub-s 3, like but not identical words
in English and identical words in Irish did not contain any material discordance.
Despite the fact that there have been instances of the courts adverting
to the Irish text in order to construe that in English, the debate on this
being conducted in English, I have some difficulty in identifying the conflict
referred to in Article 25,s.5 , sub-s 4 as the circumstance under
which the Irish text shall prevail. Historically, the Irish text is a translation
of that in English.138. If there be a hierarchy of
constitutional rights, as argued by the Attorney General, it is, perhaps
easier to compare two of them rather than to identify the level of each
particular right. This is all the more so since the catalogue of unenumerated
rights remains incomplete. Life itself, although until 1990 qualified as
a fundamental right (see s.
1 of the Criminal
Justice Act, 1990, and Article 13, s.6
of the Constitution), would appear to rank at the top of the scale. I would
prefer to seek harmony between the various rights guaranteed and to reconcile
them to each other rather than to rank one higher than another. True in
The
People v. Shaw [1982] I.R. 1 Griffin J., with whom Henchy and Parke
JJ. agreed, said:— “If possible, fundamental rights under a Constitution
should be given a mutually harmonious application, but when that is not
found possible, the hierarchy or priority of the conflicting rights must
be examined, both as between themselves and in relation to the general
welfare of the society. This may involve the toning down or even the putting
into temporary abeyance of a particular guaranteed right so that, in a
fair and objective way, the more pertinent and important right in a given
set of circumstances may be preferred and given application.” Kenny J.,
at p. 63, of the report said:— “Them is a hierarchy of constitutional rights,
and, when at conflict arises between them that which ranks higher must
prevail. This is the law for the exercise of all three powers of Government
and flows from the conception that all three powers must be exercised to
promote the common good: see the preamble to the Constitution. The decision
on the priority of constitutional rights is to be made by the High Court
and, on appeal, by this Court. When a conflict of constitutional rights
arises, it must be resolved by having regard to (a) the terms of the Constitution,
(b) the ethical values which all Christians living in the State acknowledge
and accept, and (c) the main tenets of our system of constitutional parliamentary
democracy.” 139. I find some conflict between
these two statements because of some possible lack of objectivity identified
in the latter. Walsh J. at p. 39 concluded that on the evidence there was
no basis for the belief which might have justified the preferring of the
right to life of one of the victims to the right to liberty of the accused.
In the Court of Criminal Appeal (0 ‘Higgins C.J., Finlay P. and McMahon
J.), the court was satisfied “that, if it needs to be excused, the interference
with the applicant’s right to liberty is amply excused by the circumstance
that the paramount and primary purpose for continuing his detention was
the hope of saving the life of the woman from imminent peril.” Disregarding
what might have happened in Shaw’ s case if he had access to a court
during his detention, the words I have quoted from the judgment of McMahon
j. in the Court of Criminal Appeal do indicate not, I suggest, a hierarchy
of rights but, rather, the reconciliation of them.140.
The right of the girl here is a right to a life in being; the right of
the unborn is to a life contingent; contingent on survival in the womb
until successful delivery. It is not a question of setting one above the
other but rather of vindicating, as far as practicable, the right to life
of the girl/mother (Article 40, s.3,
sub-s. 2), whilst with due regard to the equal right to life of the girl/mother,
vindicating, as far as practicable, the right to life of the unborn. (Article
40, s.3,
sub-section 3). If the right to life of the mother is threatened by the
pregnancy, and it is practicable to vindicate that right, then because
of the due regard which must be paid to the equal right to life of the
mother, it may not be practicable to vindicate the right to life of the
unborn. What then does “threatened” mean? The learned trial judge identified
the questioning these words:—“What the court, therefore, is required to
do is to assess by reference to the evidence the danger to the life of
the child and the danger that exists to the life of the mother. 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 would be terminated. The evidence also establishes that
if the court grants the injunction sought there is a risk that the defendant
may take her own life. But the risk that the defendant may take her own
life if an order is made is much less and is of a different order of magnitude
than the certainty that the life of the unborn will be terminated if the
order is not made. I am strengthened in this view by the knowledge that
the young girl has the benefit of the love and care and support of devoted
parents who will help her through the difficult months ahead. It seems
to me, therefore, that having had 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.”141. In my judgment,
this was an incorrect approach to the problem raised by the terms of the
Eighth Amendment. It is not a question of balancing the life of the unborn
against the life of the mother; if it were, the life of the unborn would
virtually always have to be preserved, since the termination of pregnancy
means the death of the unborn; there is no certainty, however high the
probability, that the mother will die if there is not a termination of
pregnancy. In my view, the true construction of the Amendment, bearing
in mind the other provisions of Article 40 and the fundamental rights of
the family guaranteed by Article 41, is that, paying due regard to the
equal right to life of the mother, when there is a real and substantial
risk attached to her survival not merely at the time of application but
in contemplation at least throughout the pregnancy, then it may not be
practicable to vindicate the right to life of the unborn. It is not a question
of a risk of a different order of magnitude; it can never be otherwise
than a risk of a different order of magnitude.142.
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.143. This conclusion
leads inevitably to the recognition that the wording of the Amendment contemplates
abortion lawfully taking place within this State. In S.P.U.C. v. Grogan
[1989]
I.R. 753 , I said at p.770 of the report:—“In
the course of argument, counsel for the defendants submitted that the wording
of the Eighth Amendment itself recognised that there could, in certain
circumstances, be a lawful abortion in this State. The constitutional guarantee
by the State is ‘in its laws to respect, and, as far as practicable, by
its laws to defend and vindicate’ the right to life of the unborn. No relevant
law has been enacted by the Oireachtas since the Eighth Amendment came
into force, the direct criminal law ban on abortion still deriving from
the Offences
Against the Person Act, 1861. As was pointed out by the Chief Justice
in the Open Door Counselling case at p. 625 : ‘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’.144. It is unfortunate that
the Oireachtas has not enacted any legislation at all in respect of this
constitutionally guaranteed right.”145. In the course
of argument, counsel for the Attorney General acknowledged that the Amendment
does envisage the carrying out of a lawful abortion within the State. In
my view, he was correct in so doing. From the wording of that portion of
his judgment which I have cited, I conclude that Costello J. also considered
that there could be circumstances in which an abortion within the State
might lawfully be carried out.146. Before the enactment
of the Amendment, the provisions of s.
58 of the OffencesAgainst
the Person Act, 1861, made it a criminal offence to procure a miscarriage.
The terms were wide enough to make the act of the prospective mother or
any one taking part in the procedure guilty of an offence. Abortion, for
any purpose, was unlawful. The Eighth, like any Amendment to the Constitution,
originated in the legislature and, in this instance, was initiated by the
executive. The relevant bill was passed by both houses of the Oireachtas
and in accordance with the Constitution, it was then voted on by the People
in a referendum. Its purpose can be readily identified — it was to enshrine
in the Constitution the protection of the right to life of the unborn thus
precluding the legislature from an unqualified repeal of s. 58 of the Act
of 1861 or otherwise, in general, legalising abortion. The guarantee to
the unborn was qualified by the requirement of due regard to the right
to life of the mother and made less than absolute by recognising that the
right could only be vindicated as far as practicable. The guarantee was
secured by the commitment of the State in its laws to respect and by its
laws to defend and vindicate that right. I agree with the Chief Justice
that the want of legislation pursuant to the amendment does not in any
way inhibit the courts from exercising a function to vindicate and defend
the right to life of the unborn. I think it reasonable, however, to hold
that the People when enacting the Amendment were entitled to believe that
legislation would be introduced so as to regulate the manner in which the
right to life of the unborn and the right to life of the mother could be
reconciled.147. In the context of the eight years
that have passed since the Amendment was adopted and the two years since
Grogan’s
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.
Does the right to bodily integrity, identified in Ryan v. Attorney General
[1965]
I.R. 294 and adverted to by Walsh J . in S.P.U.C. v. Grogan
[1989]
I.R. 753 at p. 767, involve the right to control one’s own body? Walsh
J. graphically describes part of the problem:—“When a woman becomes pregnant
she acquires rights whichcannot be taken from her, namely, the right to
protect the life of her unborn child and the right to protect her own bodily
integrity against any effort to compel her by law or by persuasion to submit
herself to an abortion. Such rights also carry obligations the foremost
of which is not to endanger or to submit to or bring about the destruction
of that unborn life. There is no doubt that, particularly in the case of
an unmarried pregnant woman, intense pressures of a social kind may be
brought to bear upon her to submit to an abortion, even from her peers
or her parents. There may even be specious arguments of an economic nature
ranging from those of the neo-Malthusian type to those which would seek
to determine for economic reasons that the population should be structured
in a particular way even to the point of deciding that the birth of too
many persons of one sex should be prevented. The destruction of life is
not an acceptable method of birth control. The qualification of certain
pregnancies as being “unwanted” is likewise a totally unacceptable criterion.
The total abandonment of young children or old persons or of those who
by reason of infirmity, mental or physical, or those who are unable to
look after themselves too often occurs throughout the world. There is clear
evidence that they are unwanted by those who abandon them. That would however
provide no justification whatever for their elimination. On the economic
plane there are, no doubt, some distorted minds which could make a case
for the elimination of what they would regard as old useless and unproductive
human units. To be unwanted is not justification for the destruction of
one’s life.”148. 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.
(3) Enforcement
149. At the time the original order was made, the
girl and her parents were in London out of the jurisdiction. They have
shown a most admirable sense of responsibility to the courts. They had
no advance notice of any application for the order that was made and went
to London without any intention of evading the jurisdiction of the courts.
They returned to Dublin immediately on learning of the making of the order
not having achieved the ultimate purpose of their journey. That is not
to say that up to the very moment of medical intervention, the girl and
her parents might not well have changed their minds. It would be unreal
not to recognise that there are many who would not show the same respect
for the courts and who, because of this case and the extraordinary publicity,
charged with emotion, that it has attracted would take great care to ensure
that their intention of leaving the jurisdiction would not come to the
notice of any person, in public office or otherwise, who might seek to
call the courts in aid of preventing them going outside the jurisdiction
in order to terminate the pregnancy.(a) Has the Court jurisdiction to prevent
a person leaving the State in order to have an abortion?(b) Assuming there
is such jurisdiction, should such an order be made where it is highly unlikely
to be obeyed?(c) How wide is the application of such a possible order? 150.
Counsel for the Attorney General expressly conceded that, if such a power
existed, it could not be confined to a girl under age, as here, a citizen,
as here, or in any way to restrict the ambit of its application from any
pregnant woman then in the State, irrespective of her nationality, citizenship,
or, indeed, where the conception had taken place. If, as in this case is
quite a reasonable possibility, the girl was living with her parents in
London and had come to Ireland on holiday, a holiday perhaps as part of
the treatment for her ordeal, she not merely could but should be prevented
from returning to her home if her objective in doing so, partly or otherwise,
was to have an abortion.151. Ranged against these
arguments or the unreality alleged to underlie them, is the simple proposition
— the failure of the legislature to enact the appropriate laws does not
relieve the courts, and, in particular, this Court, of its duty, as one
of the great organs of State, to vindicate the fundamental right identified
in the Amendment, although clearly ante-dating it, as detailed in judgments
in this Court. See:—G. v.An Bord Uchtála [1980] I.R. 32;
McGee
v. The Attorney General [1974] I.R. 284 at p. 312 and Norris v.
The Attorney General [1984] I.R. 36 at page 103.152.
The short answer, in the instant case, is that the order was effective;
it may well be that others will be less responsible than the family involved
here but that would not, of itself, be a ground for not making the order.
If one examines other possibilities, however, the propriety of making such
an order seems to be more in question. If, for instance a citizen of another
State who did not at the time of her arrival in Ireland know she was pregnant,
learned of her condition whilst here and wished immediately to go home
in order to terminate the pregnancy, she is unlikely to inform any official
authority or any interested bystander. If, however, she did so would the
courts make an order detaining her in Ireland for nine months? I think
not, but why not? It introduces the next problem.
(4) The right to travel
153. Such a right has been identified in The State
(M.) v. The Attorney General [1979] I.R. 73 as one of the unenumerated
rights, all of which enjoy the same guarantee as contained for those expressed
in Article 40. If the purpose of exercising the right to travel is to avail
of a service, lawful in its own location, but unlawful in Ireland, is the
right curtailed or abolished because of that local illegality and/or because
of the guarantee in the Amendment? If it were a matter of a balancing exercise,
the scales could only tilt in one direction, the right to life of the unborn,
assuming no threat to the life of the mother. In my view, it is not a question
of balancing the right to travel against the right to life; it is a question
as to whether or not an individual has a right to travel — which she has.
It cannot, in my view, be curtailed because of a particular intent. If
one travels from the jurisdiction of this State to another, one, temporarily,
becomes subject to the laws of the other state. An agreement, commonly
called a conspiracy, to go to another state to do something lawfully done
there cannot, in my opinion, permit of a restraining order. Treason is
thought to be the gravest of crimes. If I proclaim my intent to go to another
country there to plot against the Government here, I may, by some extension
of the law against sedition, be prosecuted and, consequently, subject to
detention here, but I cannot be lawfully prevented from travelling to that
other country there to plot the overthrow, since that would not be a crime
in the other country. I go further. Even if it were a crime in the other
country, if I proclaim my intent to explode a bomb or shoot an individual
in another country, I cannot lawfully be prevented from leaving my own
country for that purpose.154. The reality is that
each nation governs itself and enforces its own criminal law. A court in
one state cannot enjoin an individual leaving it from wrongdoing outside
it in another state or states. It follows that, insofar as it interferes
with the right to travel, there is no jurisdiction to make such an order.
In this context, I cannot disregard the fact that, whatever the exact numbers
are, there is no doubt that in the eight years since the enactment of the
Amendment, many thousands of Irish women have chosen to travel to England
to have abortions; it is ironic that out of those many thousands, in one
case of a girl of fourteen, victim of sexual abuse and statutory rape,
in the care of loving parents who chose with her to embark on further trauma,
having sought help from priest, doctor and gardaí, and with an outstanding
sense of responsibility to the law of the land, should have the full panoply
of the law brought to bear on them in their anguish.
In short
(1) The Attorney General acted properly in bringing the matter before the
court.(2) The terms of the Eighth Amendment, now contained in Article 40,
s. 3, sub-s. 3 contemplate lawful abortion within the State.(3) Despite
the absence of regulating legislation, the judicial arm of government must
seek to enforce the guarantee.(4) On the facts of this case, the mother
is not to be prevented from having an abortion.(5) In any event,
she cannot be lawfully prevented from leaving the State, whatever her purpose
in doing so.(6) The failure of the legislature to provide for the regulation
of Article 40, s. 3, sub-s. 3 has significantly added to the problem.155.
It was for these reasons that I agreed that the order of the High Court
should be set aside. O’Flaherty J.156.
The enactment of Article 40, s. 3, sub-s. 3 in 1983 did not I believe bring
about any fundamental change in our law. Already, s. 58 of the Offences
Against the Person Act, 1861, made it an offence unlawfully to bring
about the miscarriage of a woman.In G. v. An Bord Uchtála [1980]
IR 32 Walsh J. articulated the right to life thus when he said at p.69
of the report:—“~[A child] has the right to life itself and the right to
be guarded against all threats directed to its existence whether before
or afterbirth... The right to life necessarily implies the right to be
born, the right to preserve and defend (and to have preserved and defended)
that life...” 157. It should be recalled, also,
that s.
58 of the Civil
Liability Act, 1961, provides as follows:—“For the avoidance of doubt
it is hereby declared that the law relating to wrongs shall apply to an
unborn child for his protection in like manner as if the child were born,
provided the child is subsequently born alive.” 158.
Thus, to take a simple example, if a pregnant woman is involved in a car
accident and the child in the womb sustains injuries through someone’s
negligence, that child, on birth, would be entitled to have proceedings
brought on his behalf to recover damages for such injuries. I know that
there are many in other jurisdictions who in times past would have wished
to have such enlightened legislation in force putting beyond doubt the
entitlements of the unborn child. So I believe we can have pride in the
measures taken in our statute and case law to affirm and protect the rights
of the child in the womb.159. The fact is that this
right to life is now, by reason of the Eighth Amendment of the Constitution,
in express words enshrined in the document. The case in hand puts in question
a particular form of intervention by the State in an attempted vindication
of that right. It is our duty, therefore, to define what it means and to
set out the scope of its application. Prior to making such a decision,
it would have been desirable that we would have had an opportunity to consider
a jurisprudence built up on a case-by-case basis. We as judges of final
appeal have to bring all our powers of concentration to bear to provide
a substantial interpretation of this constitutional provision and to provide
it now.160. This provision cannot, of course, be
taken in isolation from its historical background which I have already
briefly sketched: it must also be considered as but one provision in the
whole Constitution. The Constitution has at its core a commitment to freedom
and justice. It treats the family with such respect and in language of
such clarity and simplicity that any attempt to summarise or paraphrase
it must be inadequate.161. Can it be that a Constitution
which requires the State to look to the economic needs of mothers
is
unconcerned for the health and welfare and happiness of mothers? I am certain
that reading the Constitution as a whole, as I believe one must do, then
the answer is clearly not. A broad dimension must be given to the Constitution
and a narrow or pedantic approach to its provisions has to be put aside.
I repeat and adopt what Henchy J. said in The People v. O’Shea [1982]
I.R. 384 at p. 426:— “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”.162. I believe
the sub-section is clear in the following respects:—(i) Abortion, as such,
certainly abortion on demand, is not something that can be legalised in
this jurisdiction.(ii) Promotional propaganda in respect of abortions abroad
is prohibited. The Attorney General (S.P.U.C.) v. Open Door Counselllng
Ltd [1988] I.R. 593.(iii) The legislators when they come to enact legislation
must have due regard to the mother’s right to life — a right protected
throughout the Constitution in any event. Until legislation is enacted
to provide otherwise, I believe that the law in this State is that surgical
intervention which has the effect of terminating pregnancy bona fide
undertaken
to save the life of the mother where she is in danger of death is permissible
under the Constitution and the law. The danger has to represent a substantial
risk to her life though this does not necessarily have to be an imminent
danger of instant death. The law does not require the doctors to wait until
the mother is in peril of immediate death. 163.
I believe the instant case to come within this principle.164.
Having regard to the principles of interpretation that in my judgment should
apply, the further question to be asked is whether officers of the State
are obliged to invoke what may be called the police power of the State
to interfere with the freedom of the individual, especially the individual’s
freedom of movement in and out of the jurisdiction?165.
I leave aside the entitlement of the Oireachtas to enact legislation in
regard to the provision and take it as self-executing in the absence of
such legislation. I believe that its positive thrust is that the State
should provide every practical assistance to pregnant women who find themselves
unwillingly in that situation to help them make a decision which is in
accordance with the Constitution and the law. The responsibility for this
devolves primarily on the executive branch of government pending the enactment
of legislation; but, in addition, no effort of heart or mind or resource
should be spared by all citizens to provide encouragement for such mothers.166.
The State’s role in such a case should be a positive rather than a negative
one. In particular, I do not believe that the Court should grant an injunction
to interfere to this extraordinary degree with the individual’s freedom
of movement. In this case the injunction granted also involves, in my judgment,
an unwarranted interference with the authority of the family.167.
It should be known that once an injunction is granted by a court it is
an order that must be obeyed. If there is a failure to obey the order,
then that disobedience may be punished by the imposition of various penalties,
including the possibility of imprisonment or fines. To say that it is unlikely
that such penalties would ever be invoked in this case is no answer; the
fact is that such severe remedies are available.168.
Such a regime is impossible to reconcile with a Constitution one of the
primary objects of which, as stated in its Preamble, is to assure the dignity
and freedom of the individual.169. I join with the
other members of the Court in agreeing that the Attorney General acted
correctly in seeking the opinion of the High Court in the circumstances
of this case. Egan J.170. This
is an appeal from an order of Costello J. dated the 17th February, 1992,
by which it was ordered:— (a) that the defendants, their servants or agents
or anyone having knowledge of the order be restrained from interfering
with the right to life of the unborn as contained in Article 40,s. 3, sub-s.
3 of the Constitution of Ireland;(b) that the first defendant be restrained
from leaving the jurisdiction of the court or the second and third defendants,
their servants or agents or anyone having knowledge of the order from assisting
the first defendant to leave the said jurisdiction for a period of nine
months from the date of the said order,(c) that the first defendant, her
servants or agents or anyone having knowledge of the said order be restrained
from procuring or arranging a termination of pregnancy or abortion either
within or without the said jurisdiction. 171.
Counsel for the Attorney General submitted on his instructions, however,
that in the event of this Court dismissing the appeal by the defendants
it should alter the order of the High Court in so far as it unconditionally
restrains the first defendant from leaving the jurisdiction (i.e. from
leaving it under any circumstances or for any purpose) and that instead
an order should be made restraining her from leaving the jurisdiction for
the purpose of having an abortion outside the State. The evidence in the
case was partly oral and partly on affidavit and it was agreed by all parties
that the application for interlocutory relief should be treated as the
trial of the action. The facts as found by Costello J. are set out fully
by him in his judgment but I will attempt to summarise his findings. The
first defendant (to whom I will subsequently refer as “X”) is a young girl
aged 14 years. She did not give evidence in court but her statement to
the gardai disclosed that the father of a friend of hers who was also a
friend of her parents began molesting her sexually when she was less than
13 years of age. The abuse was of a continuing nature becoming more serious
in time and resulting eventually in December, 1991, in full sexual intercourse
to which she did not consent. On the 27th January, 1992, she told her parents
all that had happened and she and her parents learned from their local
doctor that she was pregnant. This fact was confirmed on the 4th February
by the hospital to which she had been referred.172.
X and her parents travelled to England on the 6th February and arrangements
were made for an abortion. The gardaí authorities had been informed
on the previous day that they intended doing so. Later in the day, however,
they cancelled the arrangements after being informed that an interim injunction
had been granted prohibiting abortion.173. X confided
in her mother that when she learned that she was pregnant she had wanted
to kill herself by throwing herself down the stairs and, on the 31st January,
she again said much the same to a member of the garda authorities. In between,
on the journey back from England she told her mother that she had wanted
to throw herself under a train when she was in London and that she would
rather be dead than be the way she was. Again in the presence of another
member of the Garda Síochána when her father commented that
the situation was worse than a death in the family, she commented: “Not
if it was me.” On her return from England, X was brought by her parents
to a very experienced clinical psychologist. He found that she was emotionally
withdrawn, in a state of shock and that she had lost touch with her feelings.
He took this as indicating that she was coping with the appalling crisis
she faced by a denial of her emotions. He stated that she did not seem
depressed but that she coldly expressed a desire to end matters by ending
her life. He was of opinion that she was capable of such an act not just
because of depression but because she could “calculatingly reach the conclusion
that death is the best solution.” He considered that the psychological
damage to her of carrying a child would be considerable and that the damage
to her mental health would be devastating. She told him that: “It’s better
to end it now than in nine months time” and he understood her to mean that
by ending her life she would end the problems through which she was putting
her parents.174. At question 81 of the transcript
the psychologist was asked: “Do I take it therefore that you feel she,
in effect, would commit suicide if there was not a termination or abortion?”
and his reply was: “I feel she may commit suicide or decide to terminate
it herself by throwing herself down the stairs or something like that.
That is the kind of thing that happened in previous cases I dealt with
where girls attempted to gain abortion.” At question 78 he was asked: “Is
it your professional view that she would destroy herself if matters continue
as they are?” and his reply was: “I would not have taken it on myself to
leave that girl alone in the state I saw her.”175.
The justification which was advanced for the making of the injunction was
the Eighth Amendment of the Constitution of 1983, which amends Article
40 by adding a new sub-section 3, 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.”176.
It will be noted that the Amendment refers twice to “laws” and it was argued
on behalf of the defendants that no order should have been made because
no “laws” existed which would constitute or provide a guideline as to the
manner or principles upon which the right to life of the mother could be
reconciled with the right to life of the unborn. It is true that no statute
has been passed following on the Amendment but “laws” are not confined
to statutes. As stated very simply by Kenny J. in The People v. Shaw
[1982]I.R.
1 at p.62 of the report:—“The word ‘laws’ in Article 40, s. 3 is not confined
to laws which have been enacted by the Oireachtas but comprehends the laws
made by judges and by Ministers of State when they make statutory instruments
or regulations.”177. Specifically in reference to
the Amendment the following was stated by Finlay C.J. in The Attorney
General (S.P.U.C.) v. Open Door Counselling Ltd [1988] I.R. 593 at
p. 622 of the report:—“The guarantee contained in Article 40, s.3, sub-s
3 of the Constitution by 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 on the courts.”178.
It is abundantly clear, therefore, that the absence of legislative action
does not relieve the courts of their duty to implement the constitutional
guarantee.179. In regard to the criminal law abortion
is dealt with ins. 58 of the OffencesAgainst
the Person Act, 1861, which provides:—“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.”180.
Not every abortion, however, was regarded as unlawful. In Rex v. Bourne
[1939]
1 K.B. 687 a London surgeon stood trial in the Central Criminal Court in
London on a charge of unlawfully procuring the abortion of a very young
girl who had become pregnant as a result of rape. The jury were directed
inter
alia that it was for the prosecution to prove beyond reasonable doubt
that the operation was not performed in good faith for the purpose only
of preserving the life of the girl and they were directed that the surgeon
did not have to wait until the patient was in peril of immediate death.
It did not matter that his diagnosis could be wrong provided that there
was a real and substantial risk to the girl’s life if the pregnancy were
allowed to continue.181. The wording of the Eighth
Amendment which guarantees to defend and vindicate the right to life of
the unborn recognises by the inclusion of the words “with due regard for
the equal right to life of the mother” and the words “as far as practicable”
that an abortion will not in every possible circumstance be unlawful.182.
In the present case Costello J. accepted that there was a risk that X might
take her own life. He held, however, that it was much less and of a different
order of magnitude than the certainty that the life of the unborn would
be terminated if an injunction were not granted. Even although that be
so, however, can it be said that he applied the proper test? I would regard
it as a denial of the mother’s right to life if there was a requirement
of certainty of death in her case before a termination of the pregnancy
would be permissible.183. In my opinion the true
test should be that a pregnancy may be terminated if its continuance as
a matter of probability involves a real and substantial risk to the life
of the mother. The risk must be to her life but it is irrelevant, in my
view, that it should be a risk of self-destruction rather than a risk to
life for any other reason. The evidence establishes that such a risk exists
in the present case.184. For reasons stated by the
Chief Justice I avoid referring to any considerations relating to European
Community law but I regard myself as free to express an opinion on the
arguments addressed to the Court on the constitutional right to travel.
In the The People v. Shaw [1982] I.R. 1 Kenny J. stated that there
was a hierarchy of constitutional rights and, when a conflict arises between
them, that which ranks higher must prevail. This cannot be taken to mean
that an immutable list of precedence of rights can be formulated. The right
to life of one person (as in Shaw’s case) was held to be superior
to the right to liberty of another but, quite clearly, the right to life
might not be the paramount right in every circumstances. If, for instance,
it were necessary for a father to kill a man engaged in the rape of his
daughter in order to prevent its continuance, I have no doubt but that
the right of the girl to bodily integrity would rank higher than the right
to life of the rapist.185. The right to travel can
only effectively arise in reference to an intention to procure an unlawful
abortion and must surely rank lower than the right to life of the unborn.
It may well be that proof of an intention to commit an unlawful act cannot
amount to an offence but l am dealing with the question of an unborn within
the jurisdiction being removed from the jurisdiction with the stated intention
of depriving it of its right to life. In the face of a positive obligation
to defend and vindicate such a right it cannot reasonably be argued that
a right to travel simpliciter can take precedence over such a right,
(I again emphasize that the question of European Community law is not being
considered).186. It may well be that instances of
a declared intention and proof of such would be very rare indeed and there
is also the position that the supervision of a court order would be difficult
but these considerations must, in my opinion, yield precedence to the defence
and vindication of the right to life.187. Having
regard to the construction and meaning, however, of the Eighth Amendment
and my opinion that an abortion in this case would not be unlawful, I was
satisfied that the orders made in the High Court should be set aside.
© 1992 Irish Supreme Court
BAILII
URL: http://www.bailii.org/ie/cases/IESC/1992/1.html