The Invisible Constitution in Comparative Perspective

15.2.3.  The End of Natural Law: The Abortion Information Bill Reference

This religious understanding of the natural law is one that can be read to 

include a supremacist claim to super-constitutional status. The potential 

for such an anti-constitutional understanding of this ‘shadow’ constitution 

emerged fully in 1995 when the Supreme Court was faced with the argument 

that an amendment to the Constitution which had been endorsed by a major-

ity vote in a referendum should be annulled on the grounds that it violated the 

natural law.

16

 The amendment, introduced in the aftermath of litigation con-

cerning the legality of a teenage rape victim travelling to the United Kingdom 

for the purposes of obtaining an abortion, confirmed the existence of a right 

to travel and of access to information.

17

 The Bill which was introduced to 

give effect to this amendment was referred by the President to the Supreme 

Court under Article 26 of the Constitution, which provides for a test of a Bill’s 

constitutional validity prior to enactment. The Court-appointed counsel to 

act on behalf of the interests of the unborn

18

 argued that ‘[f]or as long as the 

15 

[1974] IR 284, 317–18.

16 

In re Article 26 and the Regulation of Information (Services outside the State for the Termination 

of Pregnancies) Bill 1995 [1995] 1 IR 1.

17 

Attorney General v. X [1992] 1 IR 1.

18 

The right to life of the unborn is expressly recognised in Article 40.3.3 of the Constitution.

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Eoin Carolan

present constitution remains in force, nothing in it or in any laws passed by 

the Oireachtas, or any interpretation thereof by the judiciary can run counter 

to the natural law’.

19

This argument had been foreshadowed in a debate in the academic litera-

ture about the same abortion controversy.

20

 A High Court judge, writing extra-

judicially,

21

 had argued that the Constitution’s recognition of the existence 

of the natural law logically required an equivalent acknowledgement of its 

superior and inalienable status:

It is clear . . . that the protection of fundamental rights in the Irish Constitution 

(and in particular the right to life of the unborn) is firmly grounded on what 

is called the Natural Law . . . It would appear to follow . . . that no law could 

be enacted, no amendment of the Constitution could lawfully be adopted, 

and no judicial decision could lawfully be given, which conflicted with the 

Natural Law (which we recognise as being of divine origin).

22

This view was rejected by the Supreme Court. Echoing some of the academic 

response to the O’Hanlon thesis, the Court’s decision was primarily based 

on the democratic character of the state, as described in Articles 5 and 6 of 

the Constitution.

23

 It was clearly inconsistent with the Constitution’s textual 

affirmation of popular sovereignty to suggest that a referendum result could be 

judicially invalidated on the grounds of invisible religious values.

This also required the Court, however, to address the relationship between 

the constitutional text and a natural law which, as we have seen, previous 

authorities had described as a superior and antecedent normative code. This 

it did in relatively cursory terms. Following a brief citation of some of the 

unenumerated rights case law, the Court concluded:

From a consideration of all the cases which recognised the existence of a 

personal right which was not specifically enumerated in the Constitution, 

it is manifest that the Court in each such case had satisfied itself that such 

personal right was one which could be reasonably implied from and was 

guaranteed by the provisions of the Constitution, interpreted in accordance 

with its ideas of prudence, justice and charity.

19 

[1995] 1 IR 1, 8–9.

20 

R. J. O’Hanlon, ‘Natural Law and the Constitution’ (1993) 11 Irish Law Times 8; ‘The Judiciary 

and the Moral Law’ (1993) 11 Irish Law Times 129. T. Murphy ‘Democracy, Natural Law and 

the Irish Constitution’ (1993) 11 Irish Law Times 81; D. Clarke, ‘The Constitution and Natural 

Law: A Reply to Mr Justice O’Hanlon’ (1993) 11 Irish Law Times 177.

21 

O’Hanlon, ‘Natural Rights and the Irish Constitution’.

22 

Ibid.

, 9–10.

23 

Murphy, Supra note 20.

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