ALMOST five years have elapsed since the 1992 High Court decision involving the student unions, and successive governments had failed to introduce any form of statutory regime, Mr Justice Keane said.
"It is not the function of this court to supplement this governmental and legislative inertia by making orders so uncertain and fraught with difficulty," he said.
In his judgment, he said the right to life itself was not an absolute right. What was at issue in this case was whether the duty to protect and vindicate that highest of constitutional rights (the right to life) might sometimes have to be reconciled with other constitutional rights and duties with which it was in conflict.
The right to life was not an absolute right as the Constitution itself acknowledged by implicitly recognising the right of the State to provide for capital punishment.
In this case the court was concerned with the relationship between the right to life of the unborn and the right to communicate (and the corresponding right to receive) information rather than with that between the right to life of the unborn and the equal right to life of the mother.
A statement of the then Chief Justice in the 1988 Open Door Counselling case was, in the view of Mr Justice Keane, only consistent with the right to life of the unborn being regarded as an absolute right which must be protected in every case, notwithstanding the existence of other relevant constitutional rights.
He said the statement admitted no exception or qualification in the case of information afforded to pregnant women with a view to obtaining an abortion where the purpose was the procurement of an abortion that complied with the test laid down in the X case. As a statement of law, it was impossible to reconcile with the Supreme Court decision in the X case.
He agreed the decision in the Open Door Counselling case should not be regarded as having decided any issues other than those expressly before the court in 1988. He was satisfied that the exclusion from any consideration of the words "with due regard to the equal right to life of the mother" in the Open Door Counselling case led to a decision which was erroneous.
The question remained, said Mr Justice Keane, whether the Supreme Court should now substitute for the High Court order (made by Mr Justice Morris in 1992 against the students unions) another injunction.
This would be to restrain defendants from communicating the relevant information except in cases in which the person giving the information was satisfied that, as a matter of probability there was a real and substantial risk to the "life" as distinct from the "health" of the mother.
It was questionable whether relief should be granted in that form when the High Court was never invited to make such an order and there was no hearing in that court of that issue.
There were weighty factors which had to be taken into account in deciding whether such an injunction should be granted. It appeared from the statement in the X case that at the stage when her parents sought an abortion the pregnant.
Mr Justice Keane asked would different considerations have arisen in a similar case if the foetus bad developed to where it was viable outside the womb? What qualifications, if any, were required of a person before he or she determined that the risk to the mother's life was such as to justify the giving of information?
Mr Justice Keane quoted the late Mr Justice McCarthy's observations in the X case (1992) that eight years had passed since the Eighth Amendment to the Constitution.
The amendment 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."
Mr Justice McCarthy had said the failure by the legislature to enact appropriate legislation "is no longer just unfortunate; it is inexcusable". He had asked what were pregnant women, parents of a pregnant girl under age and the medical profession to do? They had no guidelines except court decisions.
Mr Justice Keane said the 1995 Act "Regulation of Information (Services Outside The State for the Termination of Pregnancies)" provided no answers and was clearly designed not so to do. Almost five years had elapsed since the 1992 High Court decision involving the students unions and successive governments had failed to introduce any form of statutory regime.
He expressed no opinion on whether the High Court injunction should be discharged and allowed the appeal by the students unions.