Attorney General v. X

Attorney General v X
Court	Supreme Court of Ireland
Full case name	The Attorney General (Plaintiff) v. X . and Others (Defendant)
Decided	5 March 1992
Citation(s)	[1992] IESC 1, [1992] 1 IR 1

Attorney General v X, [1992] IESC 1; [1992] 1 IR 1, (more commonly known as the "X Case") was a landmark 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.

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 by a neighbour and became pregnant. X told her mother of suicidal thoughts because of the unwanted pregnancy, and as abortion was illegal in both Ireland and Northern Ireland, the family traveled to Britain for an abortion. Before the planned abortion was carried out, the family asked the Garda (police) 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 Mr 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.A. 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 miscarried shortly after the judgement. Supreme Court Justice Hugh O'Flaherty, now retired, said in an interview with The Irish Times^[1] that the X Case was "peculiar to its own particular facts", since X miscarried and did not have an abortion, and this renders the case moot in Irish law. According to Justice O'Flaherty, his reasoning for agreeing to uphold X's right to travel to the United Kingdom for an abortion because of suicidal ideation, "The stark situation is, if someone who is pregnant commits suicide, you lose the mother and the child."

In 1994, X's assailant (named in 2003 as Sean O'Brien^[2]) was tried and convicted of unlawful carnal knowledge (statutory rape) and was sentenced to 14 years in prison, reduced on appeal to 4 years (served 3 years), and then in 2002 was tried and convicted of sexual assault and false imprisonment of another 15-year-old girl in 1999, was sentenced to 3 and a half years.^[3]

On 12 July 2013, 7,799 days after the ruling. Dáil Éireann passed the Protection of Life During Pregnancy Bill by 127 votes to 31.^[4]

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. The X case resulted in three proposed amendments to the Irish constitution on the issue of abortion, which were submitted to three referenda 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.

European law

Ireland joined the EEC 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.

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 of Fr. Brendan Smyth, 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.^[5]

TV interviews in 2010

The Scannal programme by RTE 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.^[6][7] 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'Toole, 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, RTÉ journalist.
• "I remember 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
• Twenty-fifth Amendment of the Constitution Bill, 2002
• Abortion in the Republic of Ireland
• A, B and C v Ireland
• Death of Savita Halappanavar

References

External links

• Times article, 21 February 2010
• Irish Times chronology of abortion law 1861-2002