X case and the letter of the law

Twenty years ago, the Supreme Court ruled a suicidal pregnant teenager had the right to an abortion. So why are we still in a legal quagmire without relevant legislation, asks Linda Kelly

WHERE were you on Feb 23, 1992? Celebrating the departure of Charles Haughey as Taoiseach? Maybe you had retired, or had started college? Maybe you were a newlywed, or maybe you were welcoming another child into your family? Or maybe you were like me, still at school and blissfully unaware of the court case that was rocking the nation. The X case, as it became known, divided the country in 1992, but does it still divide us in 2012?

It’s hard to believe it’s two decades since the details of the case, a tragic story of one Irish family, gripped the nation.

Newspapers related the heart-breaking tale of the 14-year-old girl abused by a neighbour. In late 1985, he raped her and she became pregnant. In January of 1986, she told her parents about the abuse, as well as her suicidal thoughts as a result of the pregnancy. They reported the rape to the gardaí and organised an appointment in England for an abortion. Before going, the family asked the gardaí if DNA from the abortion would be admissible as evidence as the neighbour was denying the charges (the man was tried, jailed, had his sentence reduced on appeal, was released, whereupon he attacked a 15 year-old girl in 1999, was convicted, and imprisoned again for three and a half years.)

The gardaí contacted the Director of Public Prosecutions about the case, who contacted the Attorney General, Harry Whelehan.

Whelehan sought a temporary injunction to stop the girl from obtaining an abortion under article 40.3.3 of the Constitution. The injunction was granted by the High Court and the family, in England, was informed.

The girl returned home without having the abortion.

A few days later, an application was made for a permanent injunction against her and this was granted by the High Court — effectively imprisoning the girl in Ireland until the birth of the child.

During the High Court hearing, the story broke on the front page of the Irish Times, bringing it into the public spotlight, where it would remain for many months. The girl’s parents appealed the decision of the High Court to the Supreme Court and on Feb 26, 1992, the Supreme Court found in favour of ‘X’ (the girl) in a majority verdict of four to one, and overturned the injunction.

She was now free to travel to England to access abortion services.

While in England, waiting for the procedure, she suffered a miscarriage.

The decision of the Supreme Court was released in March and made it clear they believed, in line with the Constitution, that a woman has a right to access an abortion in Ireland if there is a ‘real and substantial risk’ to her life and that this included a risk to her life from the possibility of suicide. It was then — and still remains — up to the Government to create legislation to give effect to the Supreme Court decision.

Twenty years later, successive Irish governments have failed to legislate for the X case.

In the immediate aftermath of the case, the Government put three referenda to the Irish people — these were known as the 12th, 13th and 14th proposed amendments to the Constitution.

The 12th amendment asked to remove suicide as grounds for abortion, the 13th amendment asked that women should have the right to travel outside the State for abortion, and the 14th amendment asked that information about abortion should be available in the State.

Now, if Ireland is as opposed to abortion as is suggested in certain quarters, you would expect that the 12th amendment would have passed and the 13th and 14th amendments would have failed. The opposite is actually true.

In a majority of 2:1, Irish people voted to reject the 12th amendment, thereby endorsing the Supreme Court’s decision on X.

They also voted to allow women the right to travel for abortion and the right to information about abortion to be made available in Ireland.

In doing this, a majority of the Irish people demonstrated their support for abortion in line with the X case.

Despite the results of these referenda, the political system did not act on the Supreme Court decision, and, in 1997, history repeated itself with the C case. Again, the court found the girl in question had the right to travel for an abortion.

Instead of tackling the issue then, the government engaged in delay tactics, commissioning reports and expert committees and this continued until 2002.

A decade after the original case, then taoiseach Bertie Ahern held another referendum, asking pretty much the same question as the failed referendum in 1992 — to remove the threat of suicide as a ground for abortion.

The Irish people gave the same answer — no.

They voted to support the X case decision.

After this second vote, legislation was still not forthcoming and in 2007 another woman, known as Miss D, took a case to allow her to leave Ireland for an abortion for her anencephalic pregnancy. As with the previous case, the court ruled she had the right to travel.

Niall Behan, chief executive at the Irish Family Planning Association (IFPA), says it’s clear that it’s not just the judiciary that supports access to abortion in the limited circumstances of the X case.

Behan points to a variety of opinion polls, from the 2010 YouGov PLC poll to the Red C/Irish Examiner Poll in 2009 to TNS/MRBI Opinion Poll in 2007, all of which found a large majority in favour of allowing access to abortion where the life of the mother is in danger.

The issue came to the fore again last year, when the European Court of Human Rights found in favour of a woman, C, finding that her rights had been violated because the Government has failed to legislate for the X case.

Speaking about this most recent case, Stephanie Lord, of Choice Ireland, a group which is part of the newly formed Action on X Alliance, says “successive governments have neglected this issue for far too long.

“It is clear from the judgment in this case that the Government must now legislate for abortion in cases where it is already legal — that is, under the terms of the X case. The failure to legislate for X has been a damning indictment of governmental attitudes to women’s health.”

Lord is not the only person with strong feelings on the topic.

Sandra McAvoy, a campaigner in Cork, says “the X case judgment established a woman’s right to have an abortion in Ireland when there was a real and substantial risk to her life.

“By continuing to ban abortion, we do not prevent it; we just export it, disguise it and deny it, instead of addressing these women’s genuine needs.”

The Government has now established an ‘expert group’ to address the issue.

The group has until the end of June to propose a way forward for Enda Kenny and his Cabinet colleagues and the ‘expert group’ has begun its work, meeting for the first time a few weeks ago, at the end of January.

They will be closely watched to see if, 20 years and six months after the infamous X case, a resolution can finally be found.

* A seminar From X to ABC: 20 Years On will be held on Saturday, Feb 25, from 11am at UCC, G05 Brookfield Health Sciences Complex, College Road, Cork. To register, email corkfeminista@gmail.com

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