Re the Regulation of Information (Services outside the State for Termination of Pregnancies) Bill

Re the Regulation of Information (Services outside the State for Termination of Pregnancies) Bill was a 1995 Irish Supreme Court case which established that positive law was superior to natural law in the Irish Constitutional order.

Background

Abortion is illegal in Ireland, and this illegality was made a constitutional requirement upon the passing of the Eighth Amendment of the Constitution. The Supreme Court held in SPUC v. Grogan that a corollary of this explicit constitutional prohibition was the fact that information and advertisements on abortion services, typically advertising services available in the United Kingdom, were banned.

In addition to the positive ban on abortion contained in Article 40.3.3, previous judgements of the Supreme Court have emphasised the importance of natural law in the Irish Constitutional framework, based partly on the preamble to the Constitution which refers to the "Christian nature of the State". Previous "dicta" from McGee v. Attorney General, G. v. An Bord Uchtala and Norris v. Attorney General indicated that notwithstanding the explicit positive law constitutional ban on abortion, even if Article 40.3.3 wasn't there, the natural law enshrined in the Constitution would prohibit the legislature from legalising abortion.

The statute in question

Attorney General v. X then occurred which led to public outcry on the abortion laws. As a result of this case the Fourteenth Amendment which expressly allowed the Oireachtas to legalise the distribution of abortion information in the State with whatever restrictions it saw fit was enacted.

Pursuant to this express constitutional provision, the Regulation of Information (Services outside the State for Termination of Pregnancies) Bill, 1995 was passed. The President was concerned about the constitutionality of this bill so exercised her prerogative under Article 26 of the Constitution of Ireland to refer to the Supreme Court for an opinion on its constitutionality before signing.

The decision

The Supreme Court had to decide which was superior, positive law or natural law. The Attorney General argued the Bill was adopted pursuant to a valid constitutional amendment which had passed with a support of a majority of the voters in a referendum. Court appointed Counsel arguing against constitutionality submitted that the legislature and people could not amend the constitution in a manner inconsistent with natural law.

The Court therefore had to determine which was the ultimate rule of recognition for the State. Popular sovereignty is recognised in the constitution by allowing the legislature with a majority of the electorate to amend the constitution but catholic Christian traditions are recognised in the preamble, the wording of some of the articles and was probably in accordance with the framers intent. The Constitution contained ambiguous provisions (e.g. Article 6 "All powers of government, legislative, executive and judicial, derive, under God, from the people, whose right it is to designate the rulers of the State and, in final appeal, to decide all questions of national policy, according to the requirements of the common good.)

The Court decided that the foundation of Irish Constitutional law was popular sovereignty and rejected the idea that natural law could in any way limit the people's right to amend the constitution, provided they complied with the relevant provisions on adopting an amendment.

External links

* [http://www.bailii.org/ie/cases/IESC/1995/9.html Article 26 and the Regulation of Information (Services outside the State for the Termination of Pregnancies) Bill 1995, In Re [1995] IESC 9; [1995] 1 IR 1 (12th May, 1995)]