20th Anniversary of the X Case by Professor Siobhán Mullally

Today marks the twentieth anniversary of the X case.  On February 6th, 1992, a court order was granted to prevent a 14-year-old rape victim from travelling to England for an abortion. The order was given based on the High Court’s interpretation of Article 40.3.3 of the Constitution (the Eighth Amendment).

 

The recent appointment of the working group to examine the implementation of the European Court of Human Rights’ judgment in the A.B.C. case has once again led to calls for yet another referendum on abortion reform in Ireland. It is time, however, to stop avoiding our legislative and democratic responsibilities and to put in place a comprehensive legislative framework on abortion in Ireland.
Professor William Binchy and others in the anti-abortion movement have stated that the European Court of Human Rights did not require Ireland to give legislative effect to the Supreme Court judgment in the X case. He is correct in this. The European Court of Human Rights in A.B.C. specifically stated that it would not indicate the most appropriate means that a State should adopt to give effect to its positive obligations to protect rights to private and family life. What the Court did state, however, is that the  uncertainty generated by the lack of legislative implementation of the Eighth Amendment, and more particularly by the absence of an effective and accessible procedure to implement constitutional rights, amounted to a violation of the European Convention on Human Rights. Ireland is now required to put in place a legislative or regulatory framework that remedies this uncertainty.

The Supreme Court judgment in the X case is an authoritative interpretation of the Eighth amendment. Moreover, it is one that the Irish electorate have already expressed support for in the context of the 2002 referendum on abortion. The 2002 referendum  sought to roll back the finding of the Supreme Court in the X case that abortion would be permissible where there was a real and substantial risk to the life of the mother, including a risk arising from suicide. The proposal to remove the risk of suicide as an element of the risk to life has already been subject to a referendum and rejected by the Irish electorate. 

Of course, as Professor Binchy has noted, the Supreme Court judgment in the X case is not sufficient to provide the kind of comprehensive legislative or regulatory framework necessary to clarify the law on abortion in Ireland. It was a judgment given in the context of a tragic and hard case, the rape and subsequent pregnancy of a 14 year old girl. The Supreme Court judgment was not intended to be a substitute for a legislative drafting process and no-one has argued that it should be.  Unfortunately, almost 20 years later, Mr Justice McCarthy’s comments in the Supreme Court, (quoted by the European Court of Human Rights ) remain true today. In his X case judgment, he lamented that the failure by the legislature to enact the appropriate legislation was no longer just ‘unfortunate’, it was ‘inexcusable.”   Mr Justice McCarthy’s frustrations at the political failure to address this question were evident. ‘What,’ he asked, ‘are pregnant women to do? What are the parents of a pregnant girl under age to do? What are the medical profession to do?  He went on to note the absence of any guidelines on whether victims of rape or incest were to be treated differently in assessing the requirements of due regard to the life of the mother set out in the Eighth Amendment. These gaps and uncertainties remain today, while women and girls continue to travel to other jurisdictions to resolve these dilemmas.

We should not forget the child at the centre of the X case, a 14 year old girl who became pregnant following rape, a child that is forgotten by many of the anti-abortion campaigners. In most countries in Europe, she would not have had to demonstrate to the courts that she was suicidal in order to be allowed to terminate her pregnancy. 

The European Court of Human Rights in the A.B.C. judgment pointed out that several policy documents had recognised the need for greater clarity in the legal framework regulating abortion in Ireland. The 1999 Green Paper on Abortion, in discussing the possible options available for abortion reform, noted the potential advantages of legislation in this area, including the possibility of avoiding recourse to the courts, with all the attendant publicity and debate that follows. It would allow pregnant women who establish that there is a “real and substantial risk to their life to have an abortion in Ireland rather than travelling out of the jurisdiction”; and it would provide legal protection for medical and other personnel involved in a procedure to terminate the pregnancy in Ireland. 

The core elements of a legislative or regulatory framework are not difficult to identify. Speaking at a seminar hosted by the Centre for Criminal Justice and Human Rights, UCC,  Mr Juris Rudevskis, ( lawyer at the Registrar of the European Court of Human Rights) outlined the procedural safeguards required for situations where a disagreement arises between a pregnant woman and a medical doctor as to whether the preconditions for a legal abortion are satisfied in a given case. These, he said, should be the following: first, they should take place before an independent body competent to review the reasons for the measures and the relevant evidence and to issue written grounds for its decision; second, the pregnant woman should be heard in person and have her views considered; third, the decisions should be timely, and fourth, the whole decision-making procedure should be fair and afford due respect to the various interests safeguarded.

Successive governments have refused to take responsibility for hardship and trauma caused to thousands of women each year, forced to travel abroad because of the failure to protect reproductive autonomy in this jurisdiction. It is time to move forward and implement the decisions that have already been taken by the Irish electorate, supported by the Irish judiciary and by several international and European human rights bodies.

For further discussion, see S. Mullally ‘Debating Reproductive Rights in Ireland’ Human Rights Quarterly 27.1 (2005) 78-104, available at: http://muse.jhu.edu/journals/human_rights_quarterly/v027/27.1mullally.html