TO ANALYSE the question of information by reference solely to the rights of the born was "flawed reasoning Mrs Justice Denham said in her judgment.
The failure to consider the right to life of the mother had resulted in a defect in that it led to an order which in certain circumstances would endanger that right, she added. This flaw was thus a reason to consider the constitutional position.
Mrs Justice Denham said the determination in the Open Door counselling case in 1988 was clearly based on the premise that an abortion could never be lawful. Such a premise was in error. Arising out of Article 40 (3.3), there existed extremely limited circumstances when, to protect the life of the mother, an abortion was lawful. The premise in the Open Door case being in error, the decision flowing from it was flawed.
As there were extremely limited circumstances when, to protect the life of the mother, abortion was lawful, it followed that there was at least a right to information in such cases and a corollary right to give information.
Mrs Justice Denham said the right to information was also related to Article 40 (6.1) the right of citizens to express freely their convictions and opinions.
It was illogical and incorrect to analyse the situation and determine that there could be no information given to, or received by a party to actions which may include situations where the actions were unlawful. The fact that there was a constitutional provision to protect the life of the mother meant there was a corollary right to relevant information.
To deny a right under the Constitution to information on the basis that another constitutional fight existed, without any attempt at harmonising the rights, was to fall into error.
The Open Door case in 1988 had been decided on abstract facts. It was a grave disadvantage to a case not to be founded on particular facts relative to the parties. The fundamental flaws in the Open Door case had been exposed by the decision in AG v X. The reasoning in the Open Door case had, in fact, already been superseded by that case.
The Eighth Amendment to the Constitution referred to two rights to be protected. On the one hand, there was "the right to life of the unborn", on the other hand, there was "due regard to the equal right of the mother". The equal right to life of the mother did not arise for interpretation in the Open Door case of 1988.
The consideration of one right in isolation, to the exclusion of consideration of the due regard to the equal right to life of the mother, was a flaw in the reason and decision. The question of information may affect the right of life of the mother.
The decision resulted in an order relevant to women, including pregnant women, who, applying the test in AG v X, were in a situation where there was, as a matter of probability, a real and substantial risk to their life.
Mrs Justice Denham said the injunction granted by the Supreme Court in the Open Door counselling case in 1988 was very broad. It would include a prohibition on information to a pregnant women who was seeking a life- preserving decision. It was not unconstitutional to give information to a person, or receive information, of a constitutional activity.
Consequently, the injunction was too broad and encompassed activity which it should not, and it was therefore erroneous.