At common law it was not murder to kill a child in the womb or while in the process of being born, this was because the unborn child was deemed to have no separate existence apart from its mother. The destruction of an unborn child by means of an unlawful miscarriage is criminal and a statutory offence is contained in section 58 of the Offences against the Person Act, 1861. Also note Article 40.3.3 of the Constitution below. All references are to the 1861 Act unless otherwise stated.
Procuring abortion s. 58
(A) Every woman, being with child, who, with intent to procure her own miscarriage, shall unlawfully administer to herself any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent,.
(B) and whosoever, with intent to procure the miscarriage of any woman, whether she be or be not with child, shall unlawfully administer to her or cause to be taken by her any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent,
shall be guilty of felony and on conviction liable to penal servitude for life.
If a woman is not pregnant and administers to herself any poison, etc., she is unable to commit the principle offence and therefore cannot be convicted of the crime of attempt. It should be noted that in (A) it is essential that the woman be pregnant, whereas this is not the case in (B). It has been held that a woman, even though she is not pregnant, may be convicted of conspiring with others, or of aiding and abetting others to administer any poison, etc. to herself contrary to (B).
“Poison or other noxious thing”. The administering of a recognised poison, even in a small harmless quantity, is an offence. Where something other than a recognised poison is used, it must be shown to be harmful.
“other means”. This has been held to include the fingers of the hand.
“intent” If the substance administered is a poison or other noxious thing or if any instrument or other means is used to procure an abortion, then, provided that there was an intent to procure a miscarriage, the fact that no miscarriage was or could be produced is not relevant.
These sections of the Offences against the Person Act, 1861 are entitled “attempts to procure Abortion”.
In the English case R. v. Bourne the word “unlawfully” allowed a limited defence in the case of abortion.
Procuring drugs, &c. to cause abortion s. 59
Whosoever shall unlawfully supply or procure any poison or other noxious thing, or any instrument or thing whatsoever, knowing that the same is intended to be unlawfully used or employed with intent to procure the miscarriage of any woman, whether she be be or be not with child, shall be guilty of a misdemeanour, and being convicted thereof shall be liable, ... to three years imprisonment.
“procure” As used firstly in section 59 means getting possession from another.
Article 40.3.3 of the Constitution of Ireland
The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.
This subsection shall not limit freedom to travel between the State and another state.
This subsection shall not limit freedom to obtain or make available, in the State, subject to such conditions as may be laid down by law, information relating to services lawfully available in another state. The first paragraph of the article has been judicially considered in the Dublin Well Women and X cases (see below). The second paragraph was put by the Government to the People with the intention of ensuring that the article could not be used to prevent a woman from exercising her freedom to travel abroad for an abortion (see X case below). The last paragraph was put by the Government to the People with the intention of ensuring the freedom to receive and impart information, subject to such conditions as may be laid down by law, At the time of the referendum the Government stated that it was not the intention that it will be permitted to promote abortion, or to encourage the woman to select it in preference to the other options, or to provide an abortion referral service.
In the case of the A. G. / Society for the Protection of the Unborn Child v. Open Door Counselling/Dublin Well Women#. The defendants carried on a service to pregnant women which included non-directive counselling. Abortion might be one of the options discussed during such counselling, and where the client wished to consider such option further, the defendants arranged to refer her to a medical clinic in Britain where abortions are performed. The plaintiff claimed that the activities of the defendants were unlawful having regard to the provisions of the Constitution and sought an order prohibiting the defendants from carrying on the said activities.
In the High Court; Hamilton P. stated “I am satisfied that the activities of both defendants, through their servants and agents amount to counselling and assisting pregnant women to travel abroad to obtain further advice on abortion and to secure an abortion.” He went on to state that such activities were unlawful having regard to Article 40.3.3 .
On appeal to the Supreme Court; Finlay C .J. varied the order of Hamilton P. as follows “and it is ordered that the defendants ..... be perpetually restrained from assisting pregnant women within the jurisdiction to travel abroad to obtain abortions by referral to a clinic, by the making for them of travel arrangements, or by informing them of the identity and location of and the method of communication with a specified clinic or clinics or otherwise.”
This judgment must now be seen in the light of the two additional paragraphs (accepted by the People in November 1992) to article 40.3.3 above.
Where there is a real and substantial risk to the life of a mother which can only be avoided by the termination of a pregnancy then such termination is permissible.
In the Attorney General v. X and Others, it was held by Costello J. in the High Court that if the court is appraised of the situation in which the life of the unborn is threatened then the court would be failing in its constitutional duty to protect it ..
(3) The court may order the curtailment of the exercise of the constitutional right to liberty where it has been abused by the exercise of it to commit a wrong such as the procurement of an abortion. (8) The prevention of a woman travelling abroad to procure an abortion by means of an injunction is a measure proportionate to the aim of Article 40.3.3 It was held by the Supreme Court on appeal:
(2) The absence of legislative action does not relieve the courts of their duty to implement the constitutional guarantee.
(3) If a conflict of rights cannot be avoided, a hierarchy of rights was envisaged.
(4) On the true interpretation of Article 40.3.3 of the Constitution where it is established as a matter of probability that there is a real and substantial risk to the life of the mother which can only be avoided by the termination of the pregnancy then such termination is permissible. The test of inevitable or immediate risk to the life of the mother insufficiently vindicates the mother’s right to life.
(5) The right to life takes precedence over the right to travel. With regard to the meaning of the word “life” see R. v. Bourne.
Information on abortion services
The Regulation of Information (Services outside the State for Termination of Pregnancies) Act, 1995#, creates a number of offences which on summary conviction are liable to a fine of £1,500 and prosecutions for which may only be brought with the consent of the Director of Public Prosecutions.
The Act applies to information that-
(a) is likely to be required by a woman for the purpose of availing herself of services provided outside the State for the termination of pregnancies, and
(b) relates to such services or to persons who provide them (section 2). The offences concern the following:
1. Information at meetings or in certain publications (section 3).
2. Display of certain public notices (section 4(a)).
3. Distribution of unsolicited publications (section 4(b)).
4. Giving of information (section 5).
5. Giving of information to individual women (section 6).
6. Receipt of financial or other benefits or advantages (section 7).
7. Prohibition on making arrangements (section 8).
The Censorship of Publications Act, 1929#, at section 16 provides:
(1) it shall not be lawful for any person, otherwise and under and in accordance with a permit in writing granted to him under this section-
(a) to print or publish or cause or procure to be printed or published, or
(b) to sell or expose, offer, or keep for sale, or
(c) to distribute, offer or keep for distribution, any book or periodical publication which advocates or which might reasonably be supposed to advocate the procurement of abortion or miscarriage or any method, treatment, or appliance to be used for the purpose of such procurement.
The penalty on summary conviction is a £50 fine and or 6 months imprisonment. The 1995 Act provides that this shall not have application where the information is in compliance with the 1995 Act.