''In re Article 26 and the Regulation of Information (Services outside the State for the Termination of Pregnancies) Bill 1995'' 9951 IR 1 was a decision of the

Supreme Court of Ireland , image = Coat of arms of Ireland.svg , imagesize = 120px , alt = , caption = Coat of Arms of Ireland , image2 = Four Courts, Dublin 2014-09-13.jpg , imagesize2 = , alt2 ...

after a referral by President Mary Robinson under Article 26 of the Constitution of Ireland. This is a procedure whereby the constitutionality of a bill is considered by the Supreme Court before it is signed into law, similar to the concept of a

facial challenge In U.S. constitutional law, a facial challenge is a challenge to a statute in which the plaintiff alleges that the legislation is always unconstitutional, and therefore void. It is contrasted with an as-applied challenge, which alleges that a part ...

in the United States. If the Court finds that it is constitutional, it may not later be challenged after its enactment. The Supreme Court ultimately found that the Regulation of Information (Services outside the State for the Termination of Pregnancies) Act 1995 was constitutional, and decisively rejected the argument that natural law supersede

positive law Positive laws ( la, links=no, ius positum) are human-made laws that oblige or specify an action. Positive law also describes the establishment of specific rights for an individual or group. Etymologically, the name derives from the verb ''to posit ...

in the Constitution of Ireland.

Background

Abortion has been legal in Ireland since 1 January 2019. At the time of this case, it was prohibited under the Offences against the Person Act 1861 (these provisions have since been repealed and replaced by the Health (Regulation of Termination of Pregnancy) Act 2018). Between 1983 and 2018, there was a constitutional protection of the life of the unborn in Article 40.3.3°, introduced by the Eighth Amendment, subsequently repealed by the Thirty-sixth Amendment in 2018. In a number of cases, the Supreme Court had held that this provision of the Constitution prohibited information within the state on the availability of abortion services outside of the state. In ''AG (SPUC) v Open Door Counselling Ltd.'' (1988), the courts injunction restraining two counseling agencies from assisting women to travel abroad to obtain abortions or informing them of the methods of communications with such clinics, and in ''SPUC v Grogan (1989)'', the courts granted an injunction restraining three students' unions from distributing information in relation to abortion available outside the state.

Fourteenth Amendment

In November 1992, the Fourteenth Amendment was passed, allowing information to supplied in accordance with law. The referendum was passed on the same day as the unsuccessful referendum on the Twelfth Amendment of the Constitution Bill, 1992 and the successful referendum on the Thirteenth Amendment, which responded to different aspects of ''

Attorney General v. X ''Attorney General v X'', 992IESC 1; 9921 IR 1, (more commonly known as the "X Case") was a landmark 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 pregnanc ...

'' (the X Case). After this amendment, Article 40.3.3° read in full as follows: The

Oireachtas The Oireachtas (, ), sometimes referred to as Oireachtas Éireann, is the Bicameralism, bicameral parliament of Republic of Ireland, Ireland. The Oireachtas consists of: *The President of Ireland *The bicameralism, two houses of the Oireachtas ...

subsequently passed the Regulation of Information (Services outside the State for the Termination of Pregnancies) Act 1995. After convening the Council of State, President Mary Robinson referred the Act to the Supreme Court. The Fourteenth Amendment was also repealed by the Thirty-sixth Amendment in 2018.

Argument and Decision

Under Article 26.2.1°, the Supreme Court assigns counsel to argue against the bill's constitutionality; in this instance, counsel was assigned both to argue on the basis of the right to life of the unborn ( Peter Kelly, SC, with Ralph Sutton, SC, and

Mary Irvine Mary Irvine (born 10 December 1956) is an Irish judge who was the President of the Irish High Court between 2020 and 2022. She first practiced as a barrister. She was a judge of the High Court between 2007 and 2014. She was a judge of the Cou ...

) and to argue on the basis of the right to life of the mother ( Frank Clarke, SC, with Inge Clissman, SC, and

Fidelma Macken Fidelma Nora Macken SC (née O'Kelly; born 28 February 1942) is a retired Irish judge who served as a Judge of the Supreme Court from 2005 to 2012, a Judge of the High Court from 1998 to 1999 and between 2004 and 2005 and a Judge of the European ...

); the

Attorney General In most common law jurisdictions, the attorney general or attorney-general (sometimes abbreviated AG or Atty.-Gen) is the main legal advisor to the government. The plural is attorneys general. In some jurisdictions, attorneys general also have exec ...

Dermot Gleeson Dermot Gleeson SC (born 12 November 1949) is an Irish barrister who served as Attorney General of Ireland from 1994 to 1997. Educated in Blackrock College, Dublin and University College Dublin. Gleeson holds B.A. and LL.M degrees and qualif ...

, SC, with Peter Shanley SC, Donal O'Donnell, Gerard Hogan and Bláthna Ruane, defended the bill's constitutionality. In addition to the positive ban on abortion contained in Article 40.3.3°, previous judgments 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 Uchtála'' and ''

Norris v. Attorney General ''Norris v. The Attorney General'' is a 1983 judgement from the Supreme Court of Ireland that held that the law which criminalised homosexuality was not against the Constitution of Ireland. David Norris was subsequently successful in the Europe ...

'' 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

from legalising abortion. 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 original intent of its drafters. 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

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{{DEFAULTSORT:Re: Article 26 and the Regulation of Information (Ireland) Republic of Ireland abortion case law Irish constitutional law 1995 in Irish law Supreme Court of Ireland cases