Minister for Health Simon Harris was not entitled to commit public monies to making contraception freely available as part of "a narrative for voting Yes" in the abortion referendum, the High Court has heard.
The Minister's advocacy for a Yes vote created a "fundamental conflict of interest" between his duties as holder of that office, including in relation to women's health, said Killian McMorrow BL, counsel for Joanna Jordan, who is seeking to challenge the result of the vote.
The Minister’s “key role” in the campaign to repeal the amendment created “voter confusion” concerning whether or not he was speaking in his official role, he said.
Such confusion was underlined by the Minister answering questions about the cervical smears controversy while attending a Yes campaign event, he said.
The fact the Minister was being paid a salary out of public monies while advocating a Yes vote breached the requirement government should not spend public monies on advocating one side or another in a referendum campaign, he submitted.
While not arguing the Minister was not entitled to express his personal views on the referendum, his case was the Minister acted contrary to the role the courts have stipulated ministers may play in referenda.
Ministers cannot promise or commit public monies to funds as part of a “narrative for voting Yes” but Mr Harris did so by, for example, saying he would make contraception freely available with a view to reducing the need for abortions.
Ms Jordan, a homemaker, of Upper Glenageary Road, Dún Laoghaire, is seeking leave to bring a petition challenging the result of the May 25th referendum.
Beginning his arguments opposing her application, Frank Callanan SC, for the State, said he was not clear what case was being made concerning a distinction between Mr Harris as Minister for Health and as a private citizen.
Nothing the Minister did interfered with the political and ethical judgment involved in a decision to vote for or against the referendum proposal, he said.
The president of the High Court, Mr Justice Peter Kelly, will continue hearing Ms Jordan's application on Friday.
He reserved judgment earlier on Thursday on a separate application for leave to bring a petition, brought by Charles Byrne, a piano teacher of College Rise, Drogheda, Co Louth. Before a petition can be brought, the court must find an intended petitioner has prima facie evidence of matters likely to have a "material effect" on the referendum as a whole.
The State argues neither Mr Byrne nor Ms Jordan have met those criteria.
At the close of Mr Byrne’s application, his counsel Kenneth Fogarty SC said an analysis of 90,000 names from electoral registers for six constituencies showed 24.7 per cent of names appearing more than once. His side would continue to collect register data from all constituencies and would make the results available to the State and also the court if it permitted the petition.
Counsel said he knew the judge had to decide within the limits of the law but asked him to note what is said in the Book of Deuteronomy about the choice between life and death.
“Choose life,” he urged.