Re the Regulation of Information (Services outside the State for Termination of Pregnancies) Bill
Encyclopedia
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
is superior to natural law
in the Irish constitutional order.
is illegal in Ireland, except where there is a credible threat to the life of the mother, 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 were not there, the natural law enshrined in the Constitution would prohibit the legislature
from legalising abortion.
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 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.
Positive law
Positive law is the term generally used to describe man-made laws which bestow specific privileges upon, or remove them from, an individual or group...
is superior to natural law
Natural law
Natural law, or the law of nature , is any system of law which is purportedly determined by nature, and thus universal. Classically, natural law refers to the use of reason to analyze human nature and deduce binding rules of moral behavior. Natural law is contrasted with the positive law Natural...
in the Irish constitutional order.
Background
AbortionAbortion
Abortion is defined as the termination of pregnancy by the removal or expulsion from the uterus of a fetus or embryo prior to viability. An abortion can occur spontaneously, in which case it is usually called a miscarriage, or it can be purposely induced...
is illegal in Ireland, except where there is a credible threat to the life of the mother, and this illegality was made a constitutional requirement upon the passing of the Eighth Amendment
Eighth Amendment of the Constitution of Ireland
The Eighth Amendment of the Constitution of Ireland introduced a constitutional ban on abortion. It was effected by the Eighth Amendment of the Constitution Act, 1983, which was approved by referendum on 7 September 1983 and signed into law on the 7 October of the same year.-Changes to the...
of the Constitution
Constitution of Ireland
The Constitution of Ireland is the fundamental law of the Irish state. The constitution falls broadly within the liberal democratic tradition. It establishes an independent state based on a system of representative democracy and guarantees certain fundamental rights, along with a popularly elected...
. 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
Natural law
Natural law, or the law of nature , is any system of law which is purportedly determined by nature, and thus universal. Classically, natural law refers to the use of reason to analyze human nature and deduce binding rules of moral behavior. Natural law is contrasted with the positive law Natural...
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 were not there, the natural law enshrined in the Constitution would prohibit the legislature
Oireachtas
The Oireachtas , sometimes referred to as Oireachtas Éireann, is the "national parliament" or legislature of Ireland. The Oireachtas consists of:*The President of Ireland*The two Houses of the Oireachtas :**Dáil Éireann...
from legalising abortion.
The statute in question
Attorney General v. XAttorney General v. X
Attorney General v. X was a 1992 Irish Supreme Court case which established the right of Irish women to an abortion if a pregnant woman's life was at risk because of pregnancy, including the risk of suicide....
then occurred which led to public outcry on the abortion laws. As a result of this case the Fourteenth Amendment
Fourteenth Amendment of the Constitution of Ireland
The Fourteenth Amendment of the Constitution of Ireland specified that the prohibition of abortion would not limit the right to distribute information about abortion services in foreign countries...
which expressly allowed the Oireachtas
Oireachtas
The Oireachtas , sometimes referred to as Oireachtas Éireann, is the "national parliament" or legislature of Ireland. The Oireachtas consists of:*The President of Ireland*The two Houses of the Oireachtas :**Dáil Éireann...
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
President of Ireland
The President of Ireland is the head of state of Ireland. The President is usually directly elected by the people for seven years, and can be elected for a maximum of two terms. The presidency is largely a ceremonial office, but the President does exercise certain limited powers with absolute...
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
- 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 (12 May, 1995)]