THE Supreme Court yesterday agreed that a 1992 High Court order against three students unions which prevented them from publishing and distributing abortion information could not continue because the law had changed.
Almost five years had elapsed since the High Court judgment and successive governments had failed to introduce any form of statutory regime, said Mr Justice Keane, one of the five-judge court.
"It is not the function of this court to supplement this governmental and legislative inertia by the making of orders so uncertain and fraught with difficulty" he said.
The 1992 injunction was granted to the Society for the Protection of Unborn Children.
The appeal had been brought by the Union of Students in Ireland, the University College Dublin Students Union and the Students Union of Trinity College against the High Court order.
The judges warned, however, that the students unions would still have to keep within the law. The Chief Justice, Mr Justice Hamilton, agreed with Mr Justice Blayney that if the students unions did not comply with the conditions set out in the Regulation of Information (Services Outside the State for Termination of Pregnancies) Act 1995, they were committing criminal offences.
Mr Justice Barrington said that if the unions' activities violated the provisions of the legislation, they could be prosecuted by the DPP or restrained by an injunction by the Attorney General.
Mr Justice Blayney said there had been two significant changes in the law since August 1992. First there had been the 14th Amendment of the Constitution dealing specifically with the right to make information available. Second, the 1995 Act, which laid down the conditions which had to be observed in giving information.
The Chief Justice, Mr Justice Blayney and Mr Justice Barrington stressed that the 1992 High Court judgment was correct as given at the time.
The High Court judge had partly based his findings in the 1988 Supreme Court case involving Open Door counselling but yesterday all five judges said that in the intervening period the law had changed.
The Supreme Court in 1988 granted a perpetual injunction against Open Door Counselling which restrained it from assisting pregnant women to travel abroad to obtain abortions.
Mr Justice Barrington said that he would doubt if the Supreme Court now, after the X case in 1992, would grant an injunction in such wide terms conscious that such an injunction might deny to a mother in the position of the mother in the X case the right to receive information to which she might otherwise be entitled.
Mrs Justice Denham, giving her view on the 1988 decision, said the determination of the then Chief Justice, Mr Justice Finlay, was based on the premise that abortion could never be lawful. She said such a premise was an error.
This was because arising out of the Eighth Amendment, it had been held in the 1992 X case that there existed extremely limited circumstances when, to protect the life of the mother an abortion was lawful. Following yesterday's decision, the court adjourned questions relating to the nature of the order to be made and costs to 2 p.m. next Monday.