THE five Supreme Court judges reserved judgment yesterday in the appeal by three student unions against an order preventing them from publishing abortion information.
The order was granted to the Society for the Protection of Unborn Children (SPUC) by the High Court in 1992. The permanent and perpetual injunction prevented the Union of Students in Ireland, University College Dublin Students' Union and Trinity College Dublin Students' Union from printing, publishing or distributing abortion information in student guidebooks.
Mr John Rogers SC, for the students, said the High Court decision was wrong because, if there was a right to travel, there must be a right to information about how one could travel. The right derived from the Constitution and the Treaty of Rome.
Mr Shane Murphy, counsel for SPUC, said the students were precluded from giving information. Notwithstanding the changes in the statute since the High Court judgment, the law had been consistent throughout and the Constitution still precluded indiscriminate information.
Mr Rogers, opening the appeal, said that under European law a citizen had the right to receive information about a service provided in another state; a right to receive that service; and to travel to receive that service. It was a crucial matter which must be considered by the court as a right emerging from EC law.
However, there could be a situation where, albeit there may be rights at EU level, one could be prevented from publishing information by a court restraining the giver of the information to which one was entitled.
Mr Rogers also contended that the previous cases concerning SPUC and Open Door Counselling and SPUC and Well Woman were - wrongly decided by the Supreme Court.
Mr Justice Barrington asked if his argument was that in the X case, if the right to life of the mother in the case meant she had a right to an abortion in another state, it would be absurd to say she would not have the right to information. Mr Rogers said that was the argument.
Replying to the Chief Justice, Mr Justice Hamilton, Mr Rogers said the 14th Amendment had nothing to do with his case. He was appealing a judgment and against the law as the High Court judge found it. No evidence had been put forward about the 1995 Act regarding the facts.
After this case, depending on the outcome, either side could start new High Court proceedings under the new laws. Mr Justice Barrington said that the case had a certain air of moot about it at this stage.
Mr Rogers submitted that if a citizen had a right to information he or she must have a right to receive it from somebody. The point about the High Court order was that nothing was permitted.
Mr Murphy said the High Court judge made his order solely in accordance with national law and the Constitution. The judge's findings on fact were consistent with the evidence. The doctors gave opinion evidence and there was no hard evidence or facts to support the contention that women's health was being jeopardised.
The students intended to break the law and the trial judge was entitled to find their conduct a breach of the law.
Mr Murphy said the Supreme Court should consider the laws as they were made at the time and could not be confronted with new points of law.
The students were still maintaining a right to act in a way that was inconsistent with the 1995 Act. The 14th Amendment clearly made provision for restrictions law on information, he said.
The five judges were the Chief Justice, Mr Justice Hamilton, Mr Justice Blayney, Mrs Justice Denham, Mr Justice Barrington and Mr Justice Keane.