The Society for the Protection of Unborn Children Ireland Ltd. v. Grogan

The plaintiff, the Society for the Protection of Unborn Children, an Irish company whose purpose was to prevent the decriminalization of abortion, brought a suit against the defendants, including Stephen Grogan and fourteen other officers of Irish student organizations, for their distribution of “specific information relating to the identity and location of clinics” in other European Union Member States where medical termination of pregnancy is legal.  The students had no commercial or other links with the clinics from other Member States.

At the time of this case, abortion was prohibited in Ireland by statute.  Originally criminalized in Sections 58 and 59 of the Offenses Against the Person Act in 1861, Ireland reaffirmed its criminalization in the Health (Family Planning) Act of 1979.  In 1983, an amendment to Article 40 of the Irish Constitution was passed and stated: “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”.  In 1988, the Irish Supreme Court held that assistance to women in Ireland to travel abroad to obtain abortions, or by informing them of the identity or location of clinics abroad, was prohibited under Article 40 of the Constitution (see The Attorney General (at the relation of the Society for the Protection of Unborn Children Ireland Ltd) v. Open Door Counselling Ltd and Dublin Wellwoman Centre Ltd [1988] Irish Reports 593).  It is with this Irish legal history that this case by the Society for the Protection of Unborn Children was brought to the High Court of Ireland.

The High Court of Ireland granted the plaintiff’s injunction and prevented the defendants from distributing information to Irish women on the identity and location of abortion clinics in other Member States.  However, the High Court referred three questions to the European Court of Justice (ECJ), now called the Court of Justice of the European Union (CJEU), for “a preliminary ruling under Article 177 of the European Economic Community (EEC) Treaty… on the interpretation of Community law”.

Article 177 permits national courts of EU countries to ask the European Court of Justice (ECJ) for clarification to ensure EU law is properly interpreted.  Besides legal interpretation, the ECJ also enforces EU law in non-complying national governments, annulling EU legal acts, and sanctioning EU institutions. (https://europa.eu/european-union/about-eu/institutions-bodies/court-justice_en.)

In Society for the Protection of Unborn Children, the plaintiff appealed against the judgment by the High Court to the Supreme Court of Ireland.  The Supreme Court of Ireland granted the plaintiff’s injunction and affirmed the High Court’s decision to refer questions to the ECJ.

The High Court’s first question for the ECJ was whether the organized activity of abortion or medical termination of pregnancy comes within the definition of “services” under Article 60 of the EEC Treaty.  Second, the High Court referred the question of whether, in the absence of any measures providing for such activity, a Member State can prohibit the distribution of specific information about the identity, location, and means of communication with clinics in other Member States where abortions are performed.  And lastly but similarly, the High Court asked whether there is a right at Community law of a person in Member State A to distribute such information on legal abortion clinics in Member State B, where abortion is prohibited under both the Constitution and criminal law of Member State A.

Relevant legal provisions:

Article 177 of EEC Treaty (now Title I, Ch. 1, Article 234):

“The Court of Justice shall have jurisdiction to give preliminary rulings concerning:

• the interpretation of this Treaty;
• the validity and interpretation of acts of the institutions of the Community;
• the interpretation of the statutes of bodies established by an act of the Council, where those statutes so provide.

Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court of Justice to give a ruling thereon.

Where any such question is raised in a case pending before a court or tribunal of a Member State against those decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court of Justice.” Official Journal C 325 , 24/12/2002 P. 0127-0128.

Article 59 of EEC Treaty (now Title III, Ch. 3, Article 49):

“Within the framework of the provisions set out below, restrictions on freedom to provide services within the Community shall be prohibited in respect of nationals of Member States who are established in a State of the Community other than that of the person for whom the services are intended.

The Council may, acting by a qualified majority on a proposal from the Commission, extend the provisions of the Chapter to nationals of a third country who provide services and who are established within the community.” Official Journal C 325 , 24/12/2002 P. 0054-0054.

Article 60 of EEC Treaty (now Title III, Ch. 3, Article 50):

“Services shall be considered to be ‘services’ within the meaning of this Treaty where they are normally provided for remuneration, in so far as they are not governed by the provisions relating to freedom of movement for goods, capital and persons.

‘Services’ shall in particular include:

• activities of an industrial character;
• activities of a commercial character;
• activities of craftsmen;
• activities of the professions.

Without prejudice to the provisions of the chapter relating to the right of establishment, the person providing a service may, in order to do so, temporarily pursue his activity in the State where the service is provided, under the same conditions as are imposed by that State on its own nationals.” Official Journal C 325 , 24/12/2002 P. 0055-0055.

Article 62 of EEC Treaty (no longer in force):

“Except where otherwise provided for in this Treaty, Member States shall not introduce any new restrictions on the freedom which has been in fact achieved, in regard to the supply of services, at the date of the entry into force of this Treaty.”

Article 10(1) of European Convention of Human Rights:

“Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.” Convention for the Protection of Human Rights and Fundamental Freedoms, ETS No. 005 (1950).

In response to the first question referred from the Irish High Court, the ECJ held that the medical termination of pregnancy does constitute a “service” within the meaning of Article 60 of the EEC Treaty.  It held that services are “services” within the meaning of the Treaty where they are typically provided for remuneration.  Activities of professions fall within the definition of “services” in the treaty.  The court found that abortion was a medical activity that is normally provided for remuneration and may be carried out as a professional activity.  Moreover, the court rejected the plaintiff’s moral arguments against defining abortion as a “service” because making such moral conclusions is outside the role of the ECJ when some Member States have legalized abortion.

Addressing the High Court’s second and third questions together, the ECJ held that it is not contrary to Community law for a Member State in which abortion is prohibited to inhibit student associations from distributing information about the identity and location of abortion clinics in other Member States, where the clinics in question have no involvement in the distribution of such information.  The court maintained that Article 59 of the EEC Treaty, which prohibits any restriction on the freedom to provide services, does not apply because the link between the defendants and abortion clinics in other Member States was too tenuous.  The defendants were not distributing information on behalf of any economic actor or operator in another Member State.  The court also rejected the defendant’s argument applying Article 62 of the EEC Treaty, which prevents Member States from introducing new restrictions on the freedom to provide services, for the same reasons as its rejection of Article 59.  However, the court turned then to Article 10(1) of the European Convention on Human Rights to assess whether the prohibition of distributing information about clinics in other Member States violated the fundamental rights of freedom of expression and freedom to receive and impart information.  The court found that although it does have jurisdiction to assess the compatibility of national legislation and the European Convention on Human Rights, it does not have such jurisdiction when the national legislation in question falls outside the scope of Community law.  Because of its earlier analysis of Articles 59 and 60, the ECJ found that it did not have such jurisdiction.

“[M]edical termination of pregnancy, performed in accordance with the law of the State in which it is carried out, constitutes a service within the meaning of Article 60 of the Treaty.” (para 21).

“The information to which the national court’s questions refer is not distributed on behalf of an economic operator established in another Member State.  On the contrary, the information constitutes a manifestation of freedom of expression and of the freedom to impart and receive information which is independent of the economic activity carried on by clinics established in another Member State.” (para 26).

“Thirdly and lastly, the defendants in the main proceedings maintain that a prohibition such as the one at issue is in breach of fundamental rights, especially of freedom of expression and the freedom to receive and impart information, enshrined in particular in Article 10(1) of the European Convention on Human Rights.” (para 30).