Attorney General v. X
Encyclopedia
Attorney General v. X was a 1992 Irish Supreme Court case which established the right of Irish women to an abortion
if a pregnant woman's life was at risk because of pregnancy, including the risk of suicide.
d by a neighbour and became pregnant
. X told her mother of suicidal
thoughts because of the unwanted pregnancy, and as abortion was illegal in Ireland
(in both Northern Ireland
and the Republic
), the family travelled to England
for an abortion. Before the abortion was carried out, the family asked the Garda Síochána
if DNA from the aborted foetus
would be admissible as evidence in the courts, as the neighbour was denying responsibility.
Hearing that X planned to have an abortion, the Attorney General
, Harry Whelehan
, sought an injunction
under Article 40.3.3
of the Constitution of Ireland
(which outlaws abortion) preventing her from having the procedure carried out. The injunction was granted by Justice Declan Costello
in the High Court.
The High Court injunction was appealed to the Supreme Court, which overturned it by a majority of four to one (Hederman J. dissenting). The majority opinion (Finlay C.J., McCarthy, Egan and O'Flaherty J.J.) held that a woman had a right to an abortion under Article 40.3.3 if there was "a real and substantial risk" to her life. This right did not exist if there was a risk to her health but not her life; however it did exist if the risk was the possibility of suicide.
X had a miscarriage
shortly after the judgement, before an abortion could be carried out. Her rapist was sentenced to 14 years in prison, which was reduced on appeal to 4 years.
had passed, to ensure that abortion would not be introduced by the judiciary, in a similar manner to the US case of Roe v. Wade
. The X case resulted in three proposed amendments to the Irish constitution
on the issue of abortion, which were submitted to three referendums all held on 25 November, 1992. These were the
The thirteenth and fourteenth amendments were ratified but the twelfth was rejected.
in 1973 (now the European Union
), and an express provision in the relevant treaties was and is the principle of free movement of people within the EU. As far back as 1964 the Costa v ENEL case had established that European law had primacy over national laws. However the 1992 Maastricht Treaty
allowed Ireland an exemption in respect of its laws on abortion. At the time of the Maastricht negotiations it was thought that this exemption meant that the EU could never impose a new abortion system on Ireland. The X case showed that the Irish government understood that its laws against abortion could extend much further, even to a denial of the basic European right of the free movement of people.
, was met with severe criticism from the Labour Party
, his party's coalition partner, and he only served as a High Court judge for six days. Labour then went into coalition with Fine Gael
in 1994.
was broadcast on 22 February 2010, suggesting that the underlying divisions of opinion still exist, and that the facts of the case were too difficult and unique for a simple resolution at the time. Some quotations appeared on RTÉ's website:
Abortion
Abortion is defined as the termination of pregnancy by the removal or expulsion from the uterus of a fetus or embryo prior to viability. An abortion can occur spontaneously, in which case it is usually called a miscarriage, or it can be purposely induced...
if a pregnant woman's life was at risk because of pregnancy, including the risk of suicide.
Background
The case involved a fourteen year old girl (named only as "X" in the courts and the media to protect her identity) who had been rapeRape
Rape is a type of sexual assault usually involving sexual intercourse, which is initiated by one or more persons against another person without that person's consent. The act may be carried out by physical force, coercion, abuse of authority or with a person who is incapable of valid consent. The...
d by a neighbour and became pregnant
Pregnancy
Pregnancy refers to the fertilization and development of one or more offspring, known as a fetus or embryo, in a woman's uterus. In a pregnancy, there can be multiple gestations, as in the case of twins or triplets...
. X told her mother of suicidal
Suicide
Suicide is the act of intentionally causing one's own death. Suicide is often committed out of despair or attributed to some underlying mental disorder, such as depression, bipolar disorder, schizophrenia, alcoholism, or drug abuse...
thoughts because of the unwanted pregnancy, and as abortion was illegal in Ireland
Ireland
Ireland is an island to the northwest of continental Europe. It is the third-largest island in Europe and the twentieth-largest island on Earth...
(in both Northern Ireland
Northern Ireland
Northern Ireland is one of the four countries of the United Kingdom. Situated in the north-east of the island of Ireland, it shares a border with the Republic of Ireland to the south and west...
and the Republic
Republic of Ireland
Ireland , described as the Republic of Ireland , is a sovereign state in Europe occupying approximately five-sixths of the island of the same name. Its capital is Dublin. Ireland, which had a population of 4.58 million in 2011, is a constitutional republic governed as a parliamentary democracy,...
), the family travelled to England
England
England is a country that is part of the United Kingdom. It shares land borders with Scotland to the north and Wales to the west; the Irish Sea is to the north west, the Celtic Sea to the south west, with the North Sea to the east and the English Channel to the south separating it from continental...
for an abortion. Before the abortion was carried out, the family asked the Garda Síochána
Garda Síochána
, more commonly referred to as the Gardaí , is the police force of Ireland. The service is headed by the Commissioner who is appointed by the Irish Government. Its headquarters are located in the Phoenix Park in Dublin.- Terminology :...
if DNA from the aborted foetus
Fetus
A fetus is a developing mammal or other viviparous vertebrate after the embryonic stage and before birth.In humans, the fetal stage of prenatal development starts at the beginning of the 11th week in gestational age, which is the 9th week after fertilization.-Etymology and spelling variations:The...
would be admissible as evidence in the courts, as the neighbour was denying responsibility.
Hearing that X planned to have an abortion, the Attorney General
Attorney General of Ireland
The Attorney General is a constitutional officer who is the official adviser to the Government of Ireland in matters of law. He is in effect the chief law officer in Ireland. The Attorney General is not a member of the Government but does participate in cabinet meetings when invited and attends...
, Harry Whelehan
Harry Whelehan
Harry Whelehan is a former Irish Attorney general and for six days was President of the High Court.-X Case controversy:In 1992 as attorney general, Harry Whelehan sought an injunction in the X Case to prevent a 14 year old rape victim having an abortion...
, sought an injunction
Injunction
An injunction is an equitable remedy in the form of a court order that requires a party to do or refrain from doing certain acts. A party that fails to comply with an injunction faces criminal or civil penalties and may have to pay damages or accept sanctions...
under Article 40.3.3
Eighth Amendment of the Constitution of Ireland
The Eighth Amendment of the Constitution of Ireland introduced a constitutional ban on abortion. It was effected by the Eighth Amendment of the Constitution Act, 1983, which was approved by referendum on 7 September 1983 and signed into law on the 7 October of the same year.-Changes to the...
of the Constitution of Ireland
Constitution of Ireland
The Constitution of Ireland is the fundamental law of the Irish state. The constitution falls broadly within the liberal democratic tradition. It establishes an independent state based on a system of representative democracy and guarantees certain fundamental rights, along with a popularly elected...
(which outlaws abortion) preventing her from having the procedure carried out. The injunction was granted by Justice Declan Costello
Declan Costello
Declan Costello was an Irish jurist and Fine Gael party politician, who served as a Teachta Dála for twenty years, as Attorney General for four years and as a High Court judge for another twenty years before his retirement....
in the High Court.
The High Court injunction was appealed to the Supreme Court, which overturned it by a majority of four to one (Hederman J. dissenting). The majority opinion (Finlay C.J., McCarthy, Egan and O'Flaherty J.J.) held that a woman had a right to an abortion under Article 40.3.3 if there was "a real and substantial risk" to her life. This right did not exist if there was a risk to her health but not her life; however it did exist if the risk was the possibility of suicide.
X had a miscarriage
Miscarriage
Miscarriage or spontaneous abortion is the spontaneous end of a pregnancy at a stage where the embryo or fetus is incapable of surviving independently, generally defined in humans at prior to 20 weeks of gestation...
shortly after the judgement, before an abortion could be carried out. Her rapist was sentenced to 14 years in prison, which was reduced on appeal to 4 years.
Constitutional amendments
In late 1983 the eighth amendmentEighth Amendment of the Constitution of Ireland
The Eighth Amendment of the Constitution of Ireland introduced a constitutional ban on abortion. It was effected by the Eighth Amendment of the Constitution Act, 1983, which was approved by referendum on 7 September 1983 and signed into law on the 7 October of the same year.-Changes to the...
had passed, to ensure that abortion would not be introduced by the judiciary, in a similar manner to the US case of Roe v. Wade
Roe v. Wade
Roe v. Wade, , was a controversial landmark decision by the United States Supreme Court on the issue of abortion. The Court decided that a right to privacy under the due process clause in the Fourteenth Amendment to the United States Constitution extends to a woman's decision to have an abortion,...
. The X case resulted in three proposed amendments to the Irish constitution
Amendments to the Constitution of Ireland
An amendment may be made to any part of the Constitution of Ireland but only by referendum. An amendment must first be approved by both Houses of the Oireachtas , then submitted to a referendum, and finally signed into law by the President....
on the issue of abortion, which were submitted to three referendums all held on 25 November, 1992. These were the
- Twelfth Amendment – on the so-called substantive issue. This proposed that the prohibition on abortions would apply even in cases where the pregnant woman was suicidal.
- Thirteenth AmendmentThirteenth Amendment of the Constitution of IrelandThe Thirteenth Amendment of the Constitution of Ireland specified that the prohibition of abortion would not limit freedom of travel in and out of the state...
– specified that the prohibition on abortion would not limit the freedom of pregnant women to travel out of the country - Fourteenth AmendmentFourteenth Amendment of the Constitution of IrelandThe Fourteenth Amendment of the Constitution of Ireland specified that the prohibition of abortion would not limit the right to distribute information about abortion services in foreign countries...
– specified that the prohibition of abortion would not limit the right to distribute information about abortion services in foreign countries.
The thirteenth and fourteenth amendments were ratified but the twelfth was rejected.
European law
Ireland joined the EECEuropean Economic Community
The European Economic Community The European Economic Community (EEC) The European Economic Community (EEC) (also known as the Common Market in the English-speaking world, renamed the European Community (EC) in 1993The information in this article primarily covers the EEC's time as an independent...
in 1973 (now the European Union
European Union
The European Union is an economic and political union of 27 independent member states which are located primarily in Europe. The EU traces its origins from the European Coal and Steel Community and the European Economic Community , formed by six countries in 1958...
), and an express provision in the relevant treaties was and is the principle of free movement of people within the EU. As far back as 1964 the Costa v ENEL case had established that European law had primacy over national laws. However the 1992 Maastricht Treaty
Maastricht Treaty
The Maastricht Treaty was signed on 7 February 1992 by the members of the European Community in Maastricht, Netherlands. On 9–10 December 1991, the same city hosted the European Council which drafted the treaty...
allowed Ireland an exemption in respect of its laws on abortion. At the time of the Maastricht negotiations it was thought that this exemption meant that the EU could never impose a new abortion system on Ireland. The X case showed that the Irish government understood that its laws against abortion could extend much further, even to a denial of the basic European right of the free movement of people.
Political outcomes
Whelehan was subsequently appointed a senior judge, but his office's stance on the X case, along with its former lengthy delays in extraditing Brendan Smyth, a priest accused of paedophile crimes, from Northern IrelandNorthern Ireland
Northern Ireland is one of the four countries of the United Kingdom. Situated in the north-east of the island of Ireland, it shares a border with the Republic of Ireland to the south and west...
, was met with severe criticism from the Labour Party
Labour Party (Ireland)
The Labour Party is a social-democratic political party in the Republic of Ireland. The Labour Party was founded in 1912 in Clonmel, County Tipperary, by James Connolly, James Larkin and William X. O'Brien as the political wing of the Irish Trade Union Congress. Unlike the other main Irish...
, his party's coalition partner, and he only served as a High Court judge for six days. Labour then went into coalition with Fine Gael
Fine Gael
Fine Gael is a centre-right to centrist political party in the Republic of Ireland. It is the single largest party in Ireland in the Oireachtas, in local government, and in terms of Members of the European Parliament. The party has a membership of over 35,000...
in 1994.
TV interviews in 2010
The Scannal programme by RTERaidió Teilifís Éireann
Raidió Teilifís Éireann is a semi-state company and the public service broadcaster of Ireland. It both produces programmes and broadcasts them on television, radio and the Internet. The radio service began on January 1, 1926, while regular television broadcasts began on December 31, 1961, making...
was broadcast on 22 February 2010, suggesting that the underlying divisions of opinion still exist, and that the facts of the case were too difficult and unique for a simple resolution at the time. Some quotations appeared on RTÉ's website:
- Harry Whelehan said that: "The problem was stark. There was an unborn child with a constitutional right to life. There was nobody to advocate the right of that child to be born other than the Attorney General".
- "The State was going to force a child to bear a child for her rapist" said Fintan O'TooleFintan O'TooleFintan O'Toole is a columnist, assistant editor and drama critic for The Irish Times. He has written for The Irish Times since 1988 and was drama critic for the New York Daily News from 1997 to 2001. He is a literary critic, historical writer and political commentator, with generally left-wing views...
, journalist. - "You can't use the constitution for certain issues and not others. It is black and white - Harry Whelehan implemented the constitution and I believe he did the right thing." – Cathal Mac CoilleCathal Mac CoilleCathal Mac Coille is an Irish broadcaster, researcher and journalist. He is currently a co-presenter of Morning Ireland on RTÉ Radio 1. He has been used by Raidió Teilifís Éireann in numerous political broadcasts and has interviewed several prominent politicians.He has also presented other shows...
, RTÉ journalist. - "I remember AlbertAlbert ReynoldsAlbert Reynolds , served as Taoiseach of Ireland, serving one term in office from 1992 until 1994. He has been nominated for the Nobel Peace Prize...
saying 'we're up to our necks in it now Diggy, they're all out to get us', and he was so right" – Seán Duignan, government press secretary in 1992.
See also
- Censorship in the Republic of Ireland
- Twenty-fifth Amendment of the Constitution Bill, 2002
- Times article, 21 Feb 2010
- Tribune article, 21 Feb 2010
- Irish Times chronology of abortion law 1861-2002
- Abortion in the Republic of Ireland
- A. B. and C. v. IrelandA. B. and C. v. IrelandA, B and C v Ireland [2010] is a landmark case of the European Court of Human Rights on the right to privacy under article 8 ECHR. It held there is no right for women to an abortion, although it found that Ireland had violated the Convention by failing to provide an accessible and effective...