FOR A MOMENT yesterday, the words "Aren't you in danger of looking a gift horse in the mouth?" came back to haunt the former Attorney General, John Rogers SC.
The Supreme Court was making its decision on costs in SPUC v Grogan, which had been ongoing since 1989 and was about to reach its conclusion. The court sat in January to hear the appeal of three students' unions - USI, TCDSU and UCDSU - against a permanent in junction granted to SPUC preventing them from printing abortion information in students' union guidebooks.
On that occasion one of the judges, Mr Justice Barrington used the gift-horse analogy to question why Rogers was not using the 14th amendment to the Constitution and the 1995 Regulation of Information (Services Outside the State for Termination of Pregnancies) Act as a basis for his appeal. Rogers chose instead to concentrate on the argument that the decision to grant the original injunction in 1992 was flawed.
The result, in either case, was that the injunction was lifted but as the argument about costs continued yesterday, Mr Justice Hamilton appeared to take the view that Rogers' decision not to pursue the gift horse might have a detrimental effect on his demand for costs.
At least I "must" have the costs of the appeal, Rogers pleaded.
"Must you, Mr Rogers?" said Mr Justice Hamilton, with a look that suggested that, while he was in charge, there were no certainties in Rogers' world.
Shane Murphy BL, for SPUC, argued that the students had consistently flouted the law by not abiding by previous injunctions, while his clients had abided by the law. To penalise them by awarding costs to the students was "unjust", he argued. Rogers called this argument "a puff of smoke", since SPUC had never sought to enforce the injunctions it had been granted.
After some deliberation, the judges reached what could be described as a "political" judgment. SPUC was awarded costs up to and including the High Court case in 1992 which granted the injunction; the three unions were awarded the costs of the Supreme Court appeal; and no order was made with regard to the costs of an earlier appeal to the European Court of Justice, s6 each side will pay its own costs.
It was, Rogers said later, "a very good result", and the unions seemed inclined to agree.
What the final cost of the decision will be to the unions is unclear and depends very much upon whether or not SPUC decides to pursue its costs. A figure of £60,000 to £100,000 in costs, split between the three unions, is not beyond the bounds of possibility. It will hurt some unions more than others, but is substantially less than some Worstcase scenarios depicted.
While the eight-year battle with SPUC is effectively over, there were warnings for the students' unions in the Supreme Court judgments. Mr Justice Blayney pointed out in his judgment that the 14th amendment to the Constitution now protected the students as long as they complied with its conditions. If they did not comply with its conditions, then it was no longer a matter for SPUC to seek to deal with them.
In that case, they would be guilty of a criminal oflence and it would be open to the Attorney General to recommend to the Director of Public Prosecutions that criminal proceedings be taken against them, or for the AG to seek an injunction against them.
The 1995 Act restricts the provision of abortion information; it only protects those supplying information as long as they provide it to a limited constituency of wome - i.e. those who are pregnant and at risk and who receive counselling on all of the other options available to them.
On the face of it, the three students' unions are providing abortion information to all of their students, pregnant or not. The civil action brought by SPUC may have been decided, but there appears to be a risk of criminal prosecution for students' union officers supplying abortion information in this way.
Yesterday, USI president Colman Byrne wouldn't rule out the publishing of abortion information but said he would be "very surprised if under my leadership USI got itself tied up in another court battle which would be there for nine years". The other union presidents, Fergus Finnegan of TCD and Shane Fitzgerald of UCD, took a similar view. Both are anxious that another court confrontation, this time with the State, should not occur. Finnegan echoed the Supreme Court's call for the introduction of detailed legislation to clarify the present situation.
The unions involved are now seeking legal advice; they may have to modify the way they assist pregnant women. One solution may be to provide information on a one-to-one basis, or to organise a referral to another counselling service.
