Irish citizens living in Northern Ireland will have abortion readily available, in the same way as they can already avail of other health services in the Republic, if the referendum to repeal the Eighth Amendment is approved, the High Court was told on Friday.
That would mean people in the North would no longer have to cross the Irish sea for this service and is one of the reasons why those citizens should have a right to vote in the forthcoming referendum, Ronan Lavery QC said.
He was making arguments in an action by Belfast student Roisín Morelli against the State alleging it has failed to vindicate her constitutional right, as an Irish citizen, to have a vote.
The State parties, including the Taoiseach and four Ministers, say the case is wholly misconceived, it is inappropriate to deal with it via judicial review and it should be be dealt with through a normal High Court plenary hearing.
In a separate, but related case, journalist Michael Fisher, who worked with RTÉ for 28 years, is challenging the refusal to allow him a postal vote for the referendum. He says he had a family visit to England planned for when the referendum is taking place and the postal vote should be extended for people such as him.
The hearing of applications on both cases concluded on Friday and Mr Justice Charles Meenan said he hoped to rule next week.
Constitution
In Ms Morelli’s case, Mr Lavery said, by reason of the birthright of people in Northern Ireland to be Irish citizens under Article 2 of the Constitution, the case for voting rights for those people is a special one in particular where it is a health issue and there is already sharing of health services north and south of the border.
This was principally a constitutional case centring on three Articles of the Constitution — Article 2 (citizenship), 16.2 (voting rights) and 46.2 (procedure for amending the Constitution). While there was a requirement of residency in order to vote in referenda and Dáil elections, there are already situations where electors outside the State have a right to vote in Senate elections for certain universities.
This distinction between citizens was inconsistent with the Constitution which includes as citizens everybody on the island of Ireland and in particular where the aspiration for Irish unity is an express requirement for the Government to pursue, he said.
There are not two classes of Irish citizen, one south of the border and a second class north of it and all citizens were entitled to have a say “in the shaping of their country”. Ms Morelli was not an ex-pat living abroad but a citizen of her country, he said.
Mr Lavery said it was possible to provide the franchise by adding Northern Ireland to existing constituencies in the south or by dividing the six counties into new constituencies.
Asked by the judge if the same right should apply to people living in other jurisdictions outside the State, Mr Lavery said the rights guaranteed by the Belfast agreement and the fact there is already sharing of health services across the border make Northern Irish citizens a special case.
‘Wholly misconcieved’
Conor Power SC, for the State, said the case was “wholly misconceived” and largely not capable of being settled by the court. The core issue was Ms Morelli is not resident in the State, he said. The residency requirement was central and there is no reference to any special status of Northern Ireland citizens in the Constitution.
It is not the case that everybody on the island is an Irish citizen, and many in Northern Ireland did not want to be, he said. To argue Ms Morelli had rights based on the possibility of Irish unity was “wholly hypothetical”. The border is a fact and the constitutional right to achieve unity did not extend the writ of the State to the north pending that.
The right of certain people outside the State to vote in Senate elections was not relevant because the Constitution only refers to Dáil and referenda votes, he said. It also would not be possible to provide secure voting for citizens in Northern Ireland. counsel asked if it was being suggested the PSNI would provide proxy cover for gardaí who oversee polling stations here. The right to travel to use health services in another jurisdiction is a right under EU law, not the Constitution, and is not relevant, counsel said.