''Attorney General v X'',
992
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IESC 1;
992
Year 992 ( CMXCII) was a leap year starting on Friday (link will display the full calendar) of the Julian calendar.
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Worldwide
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1 IR 1, (more commonly known as the "X Case") was a landmark
Irish Supreme Court
, image = Coat of arms of Ireland.svg
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, caption = Coat of Arms of Ireland
, image2 = Four Courts, Dublin 2014-09-13.jpg
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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.
Background
The case involved a fourteen-year-old girl (named only as "X" in the courts and the media to protect her identity) who was a ward of the state and who had been the victim of a
statutory rape
In common law jurisdictions, statutory rape is nonforcible sexual activity in which one of the individuals is below the age of consent (the age required to legally consent to the behavior). Although it usually refers to adults engaging in sexual ...
by a neighbour in December 1991 and became pregnant.
X told her mother of
suicidal
Suicide is the act of intentionally causing one's own death. Mental disorders (including depression, bipolar disorder, schizophrenia, personality disorders, anxiety disorders), physical disorders (such as chronic fatigue syndrome), and subs ...
thoughts because of the unwanted pregnancy, and as abortion was illegal in the state, the family planned to travel abroad for an abortion. Before the planned abortion was carried out, the family asked the
Garda Síochána
(; meaning "the Guardian(s) of the Peace"), more commonly referred to as the Gardaí (; "Guardians") or "the Guards", is the national police service of Ireland. The service is headed by the Garda Commissioner who is appointed by the Irish Gover ...
(police) if DNA from the aborted foetus would be
admissible as evidence in the courts, as the neighbour was denying responsibility. The garda asked the
Attorney General
In most common law jurisdictions, the attorney general or attorney-general (sometimes abbreviated AG or Atty.-Gen) is the main legal advisor to the government. The plural is attorneys general.
In some jurisdictions, attorneys general also have exec ...
's office for advice. Attorney General
Harry Whelehan
Harry Whelehan (born 17 February 1944) is an Irish barrister and judge who served as President of the High Court from 15 November 1994 to 17 November 1994, a Judge of the High Court from November 1994 to December 1994 and Attorney General of ...
, sought an
injunction
An injunction is a legal and equitable remedy in the form of a special court order that compels a party to do or refrain from specific acts. ("The court of appeals ... has exclusive jurisdiction to enjoin, set aside, suspend (in whole or in pa ...
under
Article 40.3.3 of the
Constitution of Ireland
The Constitution of Ireland ( ga, Bunreacht na hÉireann, ) is the constitution, fundamental law of Republic of Ireland, Ireland. It asserts the national sovereignty of the Irish people. The constitution, based on a system of representative democra ...
(which guaranteed "the right to life of the unborn") preventing her from having the procedure carried out. The injunction was granted by
Declan Costello
Declan Costello (1 August 1926 – 6 June 2011) was an Irish judge, barrister and Fine Gael politician who served as President of the High Court from 1995 to 1998, a Judge of the High Court from 1977 to 1998 and Attorney General of Ireland fro ...
in the
High Court in February 1992.
The High Court injunction was appealed to the Supreme Court, which overturned it by a majority of four to one (
Hederman J. dissenting) in March 1992. 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
miscarried
Miscarriage, also known in medical terms as a spontaneous abortion and pregnancy loss, is the death of an embryo or fetus before it is able to survive independently. Miscarriage before 6 weeks of gestation is defined by ESHRE as biochemical lo ...
shortly after the judgement. In 2013 Justice O'Flaherty, now retired, said that the X Case was "peculiar to its own particular facts", since X miscarried and did not have an abortion, and this rendered the case
moot
Moot may refer to:
* Mootness, in American law: a point where further proceedings have lost practical significance; whereas in British law: the issue remains debatable
* Moot court, an activity in many law schools where participants take part in s ...
in Irish law.
According to O'Flaherty, his reasoning for agreeing to uphold X's right to travel to the United Kingdom for an abortion because of
suicidal ideation
Suicidal ideation, or suicidal thoughts, means having thoughts, ideas, or ruminations about the possibility of ending one's own life.World Health Organization, ''ICD-11 for Mortality and Morbidity Statistics'', ver. 09/2020MB26.A Suicidal ideatio ...
, "The stark situation is, if someone who is pregnant commits suicide, you lose the mother and the child."
"The man in the X case", unnamed at the time to protect X's identity, was named in 2002 as Sean O'Brien (b.1949/50).
[; ] In 1994 he was tried and convicted of
defilement of a girl under 15 and sentenced to 14 years in prison, reduced on appeal to four years.
He was released in 1997 and obtained a
taxi driver's licence.
In 2002 he was tried and convicted for the 1999 sexual assault and
false imprisonment
False imprisonment or unlawful imprisonment occurs when a person intentionally restricts another person’s movement within any area without legal authority, justification, or the restrained person's permission. Actual physical restraint is ...
of a 15-year-old girl in his taxi; his three-and-a-half-year sentence was handed down the day before
another abortion referendum.
[; ]
Constitutional amendments
In late 1983 the
eighth amendment 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'', 410 U.S. 113 (1973),. was a landmark decision of the U.S. Supreme Court in which the Court ruled that the Constitution of the United States conferred the right to have an abortion. The decision struck down many federal and st ...
''. 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
*
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 Amendment – specified that the prohibition on abortion would not limit the freedom of pregnant women to travel out of the state
*
Fourteenth Amendment – 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. In 2002 an attempt to overturn the suicide grounds was again defeated, in the
Twenty-fifth Amendment.
In 2018 the
Thirty-sixth Amendment of the Constitution of Ireland
The Thirty-sixth Amendment of the Constitution of Ireland (previously bill no. 29 of 2018) is an amendment to the Constitution of Ireland which permits the Oireachtas to legislate for abortion. The constitution had previously prohibited abortio ...
provided a clear result, allowing abortions to be performed in Ireland, with the X Case frequently cited before the vote as a reason for amending the Constitution.
European law
Ireland joined the
EEC
The European Economic Community (EEC) was a regional organization created by the Treaty of Rome of 1957,Today the largely rewritten treaty continues in force as the ''Treaty on the functioning of the European Union'', as renamed by the Lisb ...
in 1973 (now the
European Union
The European Union (EU) is a supranational political and economic union of member states that are located primarily in Europe. The union has a total area of and an estimated total population of about 447million. The EU has often been des ...
), 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
''Flaminio Costa v ENEL'' (1964) Case 6/64 was a landmark decision of the European Court of Justice which established the primacy of European Union law (then Community law) over the laws of its member states.Hilf, Meinhard (2012). Costa v. ...
'' case had established that European law had primacy over national laws. The 1992
Maastricht Treaty
The Treaty on European Union, commonly known as the Maastricht Treaty, is the foundation treaty of the European Union (EU). Concluded in 1992 between the then-twelve member states of the European Communities, it announced "a new stage in the ...
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 abortion laws upon Ireland. The X case showed that the Irish government understood that its laws against abortion extended much further, even to a denial of the basic European law right of the free movement of people within the EU.
In the 2010 case of ''
A, B and C v Ireland
''A, B and C v Ireland'' is a landmark 2010 case of the European Court of Human Rights on the right to privacy under Article 8 of the European Convention on Human Rights, Article 8. The court rejected the argument that article 8 conferred a ri ...
'' the
European Court of Human Rights
The European Court of Human Rights (ECHR or ECtHR), also known as the Strasbourg Court, is an international court of the Council of Europe which interprets the European Convention on Human Rights. The court hears applications alleging that a ...
found that Ireland has breached the
European Convention on Human Rights
The European Convention on Human Rights (ECHR; formally the Convention for the Protection of Human Rights and Fundamental Freedoms) is an international convention to protect human rights and political freedoms in Europe. Drafted in 1950 by t ...
by failing to provide an accessible and effective procedure by which a woman can have established whether she qualifies for a legal abortion under current Irish law, which led to the passing of the
Protection of Life During Pregnancy Act 2013
The Protection of Life During Pregnancy Act 2013 ( Act No.35 of 2013; previously Bill No.66 of 2013) was an Act of the Oireachtas which, until 2018, defined the circumstances and processes within which abortion in Ireland could be legally perfor ...
.
Political outcomes
Whelehan was later appointed a senior judge, but his office's stance on the X case, coupled with its lengthy delaying of the extradition from
Northern Ireland
Northern Ireland ( ga, Tuaisceart Éireann ; sco, label= Ulster-Scots, Norlin Airlann) is a part of the United Kingdom, situated in the north-east of the island of Ireland, that is variously described as a country, province or region. Nort ...
of
Brendan Smyth
Brendan Smyth O.Praem (8 June 1927 – 22 August 1997) was a Catholic priest from Belfast, Northern Ireland, who became notorious as a child molester, using his position in the Catholic Church to obtain access to his victims. During a period ...
, on multiple charges
of abuses against children, was met with severe and widespread criticism. The issue split and eventually brought down the coalition government of the time. Under political pressure, Whelehan served as a High Court judge for just six days.
There were regular calls, in subsequent decades, to "legislate for the X case", meaning to amend or replace the
Offences Against the Person Act 1861 to permit and regulate abortion within the limited circumstances allowed by the 1992 judgment. This was eventually effected by the
Protection of Life During Pregnancy Act 2013
The Protection of Life During Pregnancy Act 2013 ( Act No.35 of 2013; previously Bill No.66 of 2013) was an Act of the Oireachtas which, until 2018, defined the circumstances and processes within which abortion in Ireland could be legally perfor ...
.
TV interviews in 2010
The ''Scannal'' programme by
RTÉ
(RTÉ) (; Irish language, Irish for "Radio & Television of Ireland") is the Public broadcaster, national broadcaster of Republic of Ireland, Ireland headquartered in Dublin. It both produces and broadcasts programmes on RTÉ Television, telev ...
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
Harry Whelehan (born 17 February 1944) is an Irish barrister and judge who served as President of the High Court from 15 November 1994 to 17 November 1994, a Judge of the High Court from November 1994 to December 1994 and Attorney General of ...
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'Toole
Fintan O'Toole (born 16 February 1958) is a polemicist, literary editor, journalist and drama critic for ''The Irish Times'', for which he has written since 1988. O'Toole was drama critic for the ''New York Daily News'' from 1997 to 2001 and is ...
, 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 Coille
Cathal Mac Coille (born 1952) is a retired Irish broadcaster, researcher and journalist. He was a co-presenter of ''Morning Ireland'' on RTÉ Radio 1 for most of the period from 1986 until his retirement in 2017. He currently writes opinion pie ...
, RTÉ journalist.
* "I remember
Albert
Albert may refer to:
Companies
* Albert (supermarket), a supermarket chain in the Czech Republic
* Albert Heijn, a supermarket chain in the Netherlands
* Albert Market, a street market in The Gambia
* Albert Productions, a record label
* Albert ...
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
*
Eighth Amendment of the Constitution of Ireland
The Eighth Amendment of the Constitution Act 1983 was an amendment to the Constitution of Ireland which inserted a subsection recognising the equal right to life of the pregnant woman and the unborn. Abortion had been subject to criminal penal ...
*
Twenty-fifth Amendment of the Constitution Bill, 2002 (Ireland)
*
Abortion in the Republic of Ireland
Abortion in Ireland is regulated by the Health (Regulation of Termination of Pregnancy) Act 2018. Abortion is permitted in Ireland during the first twelve weeks of pregnancy, and later in cases where the pregnant woman's life or health is at ris ...
* ''
A, B and C v Ireland
''A, B and C v Ireland'' is a landmark 2010 case of the European Court of Human Rights on the right to privacy under Article 8 of the European Convention on Human Rights, Article 8. The court rejected the argument that article 8 conferred a ri ...
''
*
Death of Savita Halappanavar
Savita Halappanavar ( Savita Andanappa Yalagi; 9 September 1981 – 28 October 2012) was a dentist of South Asian people in Ireland, Indian origin, living in Ireland, who died from sepsis after her request for an abortion was denied on legal gro ...
References
External links
Times article, 21 February 2010*
{{DEFAULTSORT:Attorney General V. X
1992 in case law
1992 in Irish law
1992 in the Republic of Ireland
Albert Reynolds
Republic of Ireland abortion case law
Irish rapists
Political scandals in the Republic of Ireland
Rape in the Republic of Ireland
Republic of Ireland constitutional case law
Supreme Court of Ireland cases
Abortion in the Republic of Ireland
Controversies in Ireland
Religious controversies in Ireland