Abortion in Ireland: Twenty years after the “X Case”

by Jennifer Collins

Abortion in Ireland is illegal. Legislation from 1861 deems it a criminal offence carrying a maximum punishment of life imprisonment. In 1983, an amendment was made to the Irish Constitution, Bunreacht na hEireann, which equated the the right to life of the “unborn” with that of the mother (Article 40.3.3), further strengthening existing legislation.

However, Ireland does have an abortion rate. Every year, thousands of women travel to Great Britain for an abortion. (In 2010,  4400 women made the journey.) These women are a silent minority. They probably won’t speak about their experience to many people. They go there by boat or plane. Have their abortion and come home.

Abortion in Ireland is deemed lawful under one scenario. Twenty years ago, the Irish Supreme Court ruled that it is lawful for a woman to undergo an abortion on the island if her life is in sufficient danger. The ruling resulted from a particularly disturbing case, which outraged people on the island and beyond.

On February 6th 1992, in what became known as “Case X”, an Irish judge issued a court order preventing a 14-year-old rape victim from travelling to England for a termination. The girl had been sexually abused by a friend’s father from the time she was 12. The abuse culminated in her rape at the age of 14.

Before travelling to London for her abortion, the girl’s parents had contacted the Irish police to seek advice on having the foetus DNA tested to help with criminal proceedings against their daughter’s rapist. The police informed the Director of Public Prosecutions, and the then Attorney General, Harry Whelehan, quickly and successfully sought a High Court injunction prohibiting the girl from leaving Irish jurisdiction until she had the baby. The family were already in London and returned home voluntarily.

The family appealed the injunction on the grounds that their daughter was suicidal. But the temporary injunction was made permanent. The judge ruled that the risk that their daughter would kill herself was not sufficient to override the right to life of the unborn child.

The issue divided the nation. Thousands took to the streets to demonstrate against the decision – not just in Ireland. The family took its appeal to the Supreme Court – the highest court in the land. A psychologist gave evidence of the girl’s suicidal state. The Supreme Court ruled in her favour, allowing her to travel for an abortion.

Twenty years on from that landmark Supreme Court decision, which stipulates that it is lawful for a woman to have an abortion if her life is at risk, Ireland is much changed. Married couples can now legally divorce. We’ve seen immigration from all over the world, something that has enriched Irish society. The Catholic Church, an institution that once ruled Ireland with an ecclesiastical iron fist, has slowly lost its influence, following revelation after revelation of child-sex abuse. Fianna Fail, the political party that had dominated Irish politics since the foundation of the state, was destroyed in the last election. (This was previously unthinkable, for Irish politics has always been particularly tribal.) The country has gone from bust to boom to bust again.

And yet, we are still waiting for a government to legislate for the “X Case”.

Governments have come and gone since the ruling and not one has had the moral or political courage to legislate for the ruling. A small protest took place outside Dublin’s Leinster House, the seat of Dail Eireann (the lower house of the Irish parliament), on February 6th to mark the “X Case”.

Five women wore the masks of the five Irish Taoisigh (Prime Ministers) who have been in power since 1992: Albert Reynolds, John Bruton, Bertie Ahern, Brian Cowen and, the country’s current Taoiseach, Enda Kenny. The women donning Reynolds, Bruton, Ahern and Cowen masks carried signs marked with an “X” indicating that these governments had failed to legislate in for the ruling. The woman dressed as Kenny held a question mark.

Legislation for the “X Case” is, of course, important, but it does not go far enough. All woman on the island should have access to safe abortions without having to travel to another country. Current polls indicate a majority of Irish citizens feel the same way. Yet successive governments have kowtowed to a small but extremely vocal anti-abortion minority. They’ve even had to gain assurances that EU treaties would not undermine the Irish Constitution in this area.

In a letter to the Irish Times, Katie Robinson of “pro-life” group (I personally dislike the term “pro-life” because it implies those who support abortion are anti-life, which is not the case. But this is what they call themselves),Youth Defence, asserted that the Irish people don’t want abortion legalised, as has been proven in referendums and by the lack of political will to tackle the issue.

However, as Alison Spillane of the Irish Feminist Network quite rightly points out: “When asked by referendum in 1992 and 2002, the Irish people have twice refused to roll back on the Supreme Court judgement in the “X Case” and remove suicide as legitimate grounds for abortion. Furthermore, the 1992 referendum didn’t give Irish people the chance to vote on whether they wanted abortion fully legalised. It instead proposed three amendments:

  1. Article Twelve: an amendment to the Constitution which stated that suicide should not be considered a sufficient reason to legally allow an abortion. This amendment was rejected.
  2. Article Thirteen: an amendment allowing the right to travel for an abortion. This amendment was passed.
  3. Article Fourteen: an amendment allowing the right to information on abortion. This amendment was passed.

The 1992 referendum was also fought at the same time as a general election, which marginalised public debate on the issue.

The 2002 referendum once again tried to tighten the constitutional ban on abortion and did not give the Irish public the chance to vote for fully legalising abortion. The twenty-fifth amendment proposed removing the threat of suicide as sufficient grounds for obtaining a legal abortion and introducing new penalties for helping a woman to have an abortion The Irish public narrowly rejected the proposal.

While succesive Irish governments have tried to water down the provisions of the “X Case” instead of legislating for them, the Irish public has consistently rejected those attempts. The question is what they would answer if they were given a chance to vote on the full legalisation of abortion?

In the meantime, action may finally be taken on the “X Case”. In 2010, the European Court of Human Rights (ECHR) passed judgement in the ABC case taken up by three women against Ireland. The court ruled that Ireland’s abortion laws violated the rights of woman “C”, a cancer patient whose pregnancy posed a serious risk to her health and who had to travel to Britain to have an abortion.

The court said that the Irish state had failed to properly implement the constitutional right to a termination if a woman’s life is in danger. All the women involved in the case said they suffered medical complications once returning to the Republic of Ireland after their abortions and also complained that Irish abortion restrictions had “humiliated and stigmatised” them.

The current government has established an expert group to address the ABC ruling. The group is due to publish a report in June, which will hopefully lead to action on the “X Case” 20 years on.

Timeline showing legislation on abortion in Ireland: http://www.safeandlegalinireland.ie/index.php?Itemid=19&id=13&option=com_content&view=article