X and C and…?

It’s time to legislate for abortion in Ireland to save women’s lives, for rape victims and where the foetus is already deadIvana Bacik 


This year marks an important anniversary. Twenty years ago, Attorney General Harry Whelehan, got an order in the Dublin High Court to prevent a traumatised and suicidal 14-year-old schoolgirl, pregnant as a result of rape by an older man, from obtaining an abortion in England. The girl  and her parents returned from England, where they had already travelled, when they learnt of the injunction. What transpired became known as the ‘X case’.

In the High Court, Judge Declan Costello had interpreted the words of Article 40.3.3 of the Irish Constitution (the Eighth Amendment) to mean that the State was obliged to prevent any pregnant girl or woman from travelling abroad if the purpose of the journey was to terminate her pregnancy.

This Article, passed by referendum in 1983, gives equal rights to life to the “mother” and “the unborn”. The passing of this Article had given new impetus to anti-abortion groups. They took a series of court cases to close down women’s counselling centres, depriving women of the right to receive information on how to obtain abortion abroad. Students’ unions became the only organisations willing to provide such information. As President of Trinity Students’ Union in 1989-90, I carried out Union policy by giving information on abortion to women with crisis pregnancies. As a result we were threatened with prison by SPUC (the Society for the Protection of the Unborn Child). Our case was referred to the EU courts on the application of our counsel, Mary Robinson.

The nightmare scenario predicted by those who had campaigned against the 1983 amendment came to pass with the X case in 1992. The rights of ‘mother’ and ‘unborn’ were in conflict, with the result that a pregnant child was effectively imprisoned in her own country.

But the case marked a turning point in public opinion. Before this it was very difficult to challenge the consensus that all abortion was wrong. Once the facts of the X case became known, however, there was popular outrage at the notion that any young girl in X’s position might be forced to proceed with an unwanted pregnancy against her own wishes and those of her parents. Thousands took to the streets in protest at the lack of compassion in Judge Costello’s judgment and at the prospect that other girls might face similar state action in future.

In March 1992, as public pressure mounted, the Supreme Court reversed Judge Costello’s decision. It found that because X was suicidal, the continuation of the pregnancy threatened her right to life, and, in such situations, her right to life should prevail over that of ‘the unborn’.

This decision was greeted with immense public relief and X was able to travel to England. However, the corollary of the Supreme Court test was that where a woman was not facing a threat to her life, then not only would it be illegal for her to have an abortion in Ireland, but she could also be prevented from travelling abroad to avail of legal abortion elsewhere. When this effect of the judgment became clear, the pro-choice movement launched a massive campaign.

As a result, the outgoing Government put forward three further constitutional referenda in November 1992. The aim of the first (known as the ‘substantive issue’ amendment) was to rule out suicide as grounds for a lawful abortion, while allowing abortion on grounds of physical risk to the life of the pregnant woman. The second amendment guaranteed the freedom to travel abroad, and the third allowed for the provision of information on services lawfully available in other states. The people rejected the ‘substantive issue’ amendment; but the travel and information referenda were passed on the same date. This was in keeping with the ‘no, yes, yes’ position taken by those on the liberal side.

Despite this clear result, no action has been taken by any Government to legislate to clarify the conditions under which lawful abortions to save women’s lives could be performed in Ireland in accordance with the X case. Instead, after a series of reports (does anyone remember the Green Paper or the Oireachtas All-Party Committee on the Constitution report on abortion?), the Government unbelievably caved in yet again to pressure from the anti-choice movement and held another referendum to roll back the X case test and remove suicide as a ground for abortion.

This referendum was defeated in March 2002. The people clearly approve of the X case test. But despite this clear result, no legislation was introduced to clarify when X case abortions could be carried out. Meanwhile, large numbers of women continue to travel to England for abortions every year. In 2010, for example, a total of 4,402 women travelled from Ireland to Britain for abortions, 12 women every day.

For some of these women and girls, the continuance of their pregnancy would threaten their lives or their health. Others have been raped or are victims of child sexual abuse. Yet others had a wanted pregnancy but were told that their foetus was not capable of being born alive. In effect, our law unconscionably forces women in such tragic situations to carry dead babies to term, unless they go to England for abortion. No Government has made any attempt to meet the health needs of these women.

In December 2010, the European Court of Human Rights gave judgment in a case taken by three women, A, B and C, against Ireland. The women claimed that their human rights were breached because they were forced to travel abroad for abortions. The European Court ruled that the law breached the rights of one woman, C, a cancer patient whose pregnancy posed a serious risk to her health. The outgoing government did nothing to respond to this judgment.

The Programme for Government of February 2011 committed to the establishment of an expert group to recommend how best to address this judgment. This was finally established in January 2012, chaired by Judge Seán Ryan, with a panel of notables drawn from medical, legal and other backgrounds. It is due to report soon.

Unbelievably, some anti-choice activists continue to argue for yet another referendum (although we have had five to date on this topic). However, any fair reading of the European Court judgment must acknowledge that legislation is necessary to clarify the law for women like C by providing for life-saving abortion. Opinion polls show that support for legal abortion has increased significantly in recent years. As Irish society has changed and liberalised, most people have become more accepting of the need to legalise abortion. In September this year, the biggest ever pro-choice march took place through Dublin, with thousands of women protesting at the Government’s failure to act.

After all this time, the culture of silence and hypocrisy that has long dominated any debate on abortion must be challenged at official level. Once the Expert Group has reported, the Government must act swiftly to confront the reality of crisis pregnancy in Ireland and legislate to meet the health needs of women. Twenty years after the X case, now is the time. We have waited long enough.