Open Door and Dublin Well Women v. Ireland

The Applicants were two Irish companies that provided counseling to pregnant women, Open Door Counselling Ltd. and Dublin Well Woman Centre Ltd.; two counselors who worked for Dublin Well Woman, Bonnie Maher and Ann Downes; and two women of childbearing age, Mrs. X and Mrs. Geraghty.

The Society for the Protection of Unborn Children brought an action against the Applicants. They sought a declaration that in assisting pregnant women to travel abroad to obtain abortions, the Applicant companies were acting unlawfully under the Irish Constitution, which protected the right to life of unborn children. The High Court found that the activities of the applicant companies were unlawful and granted an injunction, restraining the applicant companies from further providing advice on abortion to pregnant women.

The Applicants alleged that the injunction constituted an unjustified interference with their right to impart or receive information under article 10 of the European Convention on Human Rights (ECHR). Open Door, Mrs. X and Ms. Geraghty further claimed that the restrictions amounted to an interference with their right to respect for private life, in breach of article 8. Open Door further complained of discriminatory treatment contrary to article 14 read in conjunction with Articles 8 and 10.

Ireland argued that there had been no breach of article 10 as the measure complied with article 10(2): it was intended for the legitimate aims of the protection of the rights of others (in this case the unborn), the protection of morals, and the prevention of crime; and it was “necessary in a democratic society” for the protection of the right to life of the unborn and that the proportionality test was inappropriate in such serious circumstances.

The Court held that the injunction was an unjustifiable interference on the right to impart or receive information under article 10 of the ECHR.

As a preliminary matter, the Court rejected Ireland’s preliminary objections on standing, exhaustion of local remedies, and the introduction of new submissions.

The Court held that the injunction was clearly an interference with the right to impart or receive information in both its intention and the effect.

This interference was prescribed by law – the Court rejected the Applicant’s argument that the relevant constitutional provisions were too unclear to constitute “law” for the purpose of ECHR article 10, as it was readily apparent that the unborn were highly valued under Irish law, and the Applicants had had legal advice that the restrictions on providing information about abortion might apply to them.

However, the interference could not be justified under article 10(2) of the ECHR. The Court accepted that the protection of morals was a legitimate aim that applied on the facts of the case, but held that an injunction was a disproportionate means to achieve that aim. In particular, the Court considered that an absolute, perpetual injunction preventing provision of information on abortion to women “regardless of age or state of health or their reasons for seeking counselling on the termination of pregnancy” (para. 73) was disproportionate to the moral damage likely to be caused by non-directive counselling that did not recommend abortion, was not available to the public at large, and was readily available from foreign sources. Further, going abroad to obtain an abortion was not criminalized under Irish law, and large numbers of women continued to travel despite the constitutional provisions.

The Court did not rule upon the question whether the injunction could be justified as being to protect ‘the rights of others’, thereby avoiding the difficult question of whether an unborn child was an ‘other’ whose rights needed to be protected.

The Court also did not rule on the article 8 and 14 questions, considering them unnecessary in light of the finding that article 10 had been violated.

“The Court cannot accept that the restrictions at issue pursued the aim of the prevention of crime since, as noted above (paragraph 59), neither the provision of the information in question nor the obtaining of an abortion outside the jurisdiction involved any criminal offence.  However, it is evident that the protection afforded under Irish law to the right to life of the unborn is based on profound moral values concerning the nature of life which were reflected in the stance of the majority of the Irish people against abortion as expressed in the 1983 referendum (see paragraph 28 above). The restriction thus pursued the legitimate aim of the protection of morals of which the protection in Ireland of the right  to life of the unborn is one aspect.  It is not necessary in the light of this conclusion to decide whether the term "others" under Article 10 para. 2 (art. 10-2) extends to the unborn.” Para. 63.

“While the relevant restriction, as observed by the Government, is limited to the provision of information, it is recalled that it is not a criminal offence under Irish law for a pregnant woman to travel abroad in order to have an abortion. Furthermore, the injunction limited the freedom to receive and impart information with respect to services which are lawful in other Convention countries and may be crucial to a woman’s health and well-being.  Limitations on information concerning activities which, notwithstanding their moral  implications, have been and continue to be tolerated by national authorities, call for careful scrutiny by the Convention institutions as to their conformity with the tenets of a democratic society.” Para. 72.

“The Court is first struck by the absolute nature of the Supreme Court injunction which imposed a "perpetual" restraint on the provision of information to pregnant women concerning abortion facilities abroad, regardless of age or state of health or their reasons for seeking counselling on the termination of pregnancy.  The sweeping nature of this restriction has since been highlighted by the case of The Attorney General v. X and Others and by the concession made by the Government at the oral hearing that the injunction no longer applied to women who, in the circumstances as defined in the Supreme Court’s judgment in that case, were now free to have an abortion in Ireland or abroad (see paragraph 25 above).” Para. 73