The X-Case, nearly 20 years on . . . . abortions for nobody

Rabidlamb

Brief history of the case here:
http://en.wikipedia.org/wiki/Attorney_General_v._X

Repercussions discussed here:
http://www.independent.ie/national-news/whelehan-regrets-hurt-caused-in-x-case-2072723.html

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 raped 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.

I had originally posted this in Irish Economy by mistake, carry on.

This political & legal hot potato has still not been dealt with 2 decades later.
We compliment ourselves on our progress as a society but this hurdle has still to be faced.
I believe a referendum should be called for granting the right of abortion when the mothers life is at risk.
People will say how do you define "at risk", is it medically or psychologically, will the word of the mother be enough.
A debate needs to be had & politicians need to loose the fear of the headscarves & the rosary beads.

On the case itself I find it astonishing that the family came home once the injunction had been granted.
Had I been the parent I would have been visiting the clinic before getting back on the boat.

mikom

Rabidlamb wrote: »

I had originally posted this in Irish Economy by mistake,

Well now, that really is abortion.

The King of Moo

I'd love to see abortion legislation introduced but I think it'll be a long time before it will.
It's still too much of a hot potato for any government to want to touch it, and as long as it's relatively easy to travel to the U.K to get an abortion they know there won't be a huge amount of pressure on them to legalise it, so the situation will stay as it is for a while unfortunately.

ilovelamp2000

The family's actions were remarkable in that case.

I don't see any government for the foreseeable future having the conkers to organise a referendum on abortion.

FWIW I agree with the decision reached.

prinz

Rabidlamb wrote: »

I believe a referendum should be called for granting the right of abortion when the mothers life is at risk..

Abortion is illegal in Ireland except where there is a real and substantial risk to the life, (as distinct from the health) of the mother.

Perhaps you should brush up on the actual position, and then return? The X case gave the right to an abortion where the mother's life is at risk and a subsequent constitutional amendment in 1992 to remove that right was defeated.

Seriously man, wikipedia abortion in Ireland and the very first line makes is exactly what you claim a referendum should be carried out to do.

Abortion in Ireland is illegal unless the pregnancy is in threat of endangering the life of the woman (as differential to her health) through continuance of the pregnancy

http://en.wikipedia.org/wiki/Abortion_in_the_Republic_of_Ireland

The only question that remains is where have you been for the last 20 years? The problem lies with the practicalities of defining and implementing it.

orourkeda

Here's a question.

How many unwanted pregnancies are caused by the irresponsibility of the parents compared to cases similar to the one outlined in the original post?

Nodin

orourkeda wrote: »

Here's a question.

How many unwanted pregnancies are caused by the irresponsibility of the parents compared to cases similar to the one outlined in the original post?

Here's a question.

whats that to do with the x case?

Rabidlamb

prinz wrote: »

Perhaps you should brush up on the actual position, and then return? The X case gave the right to an abortion where the mother's life is at risk and a subsequent constitutional amendment in 1992 to remove that right was defeated.

The term "at risk" is left sufficiently vague as to deny the right in most cases or at least allow the medical professionals to play football long enough that abortion is no longer an option.
No specialist or consultant would make the call for fear of violent reprisal.

NothingMan

orourkeda wrote: »

Here's a question.

How many unwanted pregnancies are caused by the irresponsibility of the parents compared to cases similar to the one outlined in the original post?

7? No. 8! It's 8 isn't it. I bet it's 8.

Rabidlamb

prinz wrote: »

The only question that remains is where have you been for the last 20 years?

There may be people on this forum who were too young to vote in the referendums & do not remember the particulars of this case.
This thread will prove informative to them & a refresher to others as it's returned to the news.

Have you any objection to the debate proceeding ?.

prinz

Rabidlamb wrote: »

The term "at risk" is left sufficiently vague as to deny the right in most cases or at least allow the medical professionals to play football long enough that abortion is no longer an option. No specialist or consultant would make the call for fear of violent reprisal.

So you aren't calling for a referendum for "granting the right of abortion when the mothers life is at risk." You are calling for a debate on how we define a risk to life, legally, medically, ethically etc. Should be simple enough.

Well subsequent to the ECtHR ruling in favour of C's case in A B & C v Ireland your wish will be granted, or possible expulsion from the Council of Europe could follow.

orourkeda

Nodin wrote: »

Here's a question.

whats that to do with the x case?

Nothing. Here's another question Did I say it had?

Nodin

orourkeda wrote: »

Nothing. Here's another question Did I say it had?

Why are you bringing it up then? This isn't about 'Abortion as contraception'/Abortion on demand or whatever, yet your question is aimed at heading down that route.

Rabidlamb

prinz wrote: »

So you aren't calling for a referendum for "granting the right of abortion when the mothers life is at risk." You are calling for a debate on how we define a risk to life, legally, medically, ethically etc. Should be simple enough.

Well subsequent to the ECtHR ruling in favour of C's case in A B & C v Ireland your wish will be granted, or possible expulsion from the Council of Europe could follow.

Good, now we're talking.
Don't the government need to make a submission soon about how we'll address this anomaly.
I believe they need to respect the public enough & invite a debate without dragging it into an ethical or religious swamp.
Simple questions:
Who makes the call & what are the criteria ?.
Who carries out the procedure ?.
Where will it be carried out ?.

prinz

Rabidlamb wrote: »

Good, now we're talking.
Don't the government need to make a submission soon about how we'll address this anomaly..

They should be.

Rabidlamb wrote: »

I believe they need to respect the public enough & invite a debate without dragging it into an ethical or religious swamp...

Whatever about religion you cannot remove ethics from it. Just like you remove ethics from other procedures or dealings with the medical profession and healthcare. Ethics have a massive part to play.

Rabidlamb wrote: »

Simple questions:
Who makes the call & what are the criteria ?.
Who carries out the procedure ?.
Where will it be carried out ?.

Good questions. Perhaps we should leave that to the experts in the area however. There's not much point in speculating.. but as a quick guide; personally if they go down this route I would favour a panel of people, a doctor, a social worker, a pyschologist, possibly a counsellor/positive options type rep. Procedure to be carried out by doctors who volunteer to carry them out in hospitals or clinics which volunteer to carry them out.

jimcoolding

He only got 4 years for raping a 14 year old girl.

jesus christ.

28064212

prinz wrote: »

Well subsequent to the ECtHR ruling in favour of C's case in A B & C v Ireland your wish will be granted, or possible expulsion from the Council of Europe could follow.

Doubt it. The X case established the right to an abortion in certain circumstances. Nearly 20 years later, a woman in those circumstances can still not get an abortion. All the ABC case established was that they haven't implemented the legislation. There hasn't been any discussion from the government on how they're going to resolve this, and I see no measure that will prevent the establishment from hemming and hawing over it for the next 20 years

Colibri

ABORTIONS FOR ALL

prinz

28064212 wrote: »

... I see no measure that will prevent the establishment from hemming and hawing over it for the next 20 years

They can hem and haw all they want, but it can be referred back to the court and the Council of Europe can expel a country which fails to abide by a ruling. No immediate danger, but I can't see the country risking that tbh. I am sure they will be pressured with more test cases, and the ECtHR isn't going to gladly keep considering the same issue over and over.

Rabidlamb

The should have got FF to enact legislation before the end of the last Dail.
They couldn't have suffered much worse politically.

wild_cat

We discussed this in school during religion class one time.

The teacher never mentioned that she ended up having a miscarriage and one girl whom was keen to start a family straight after finishing school said the following sentence and it was said in the most ernest manner.

"I bet she's delighted she kept it now".


I think that is the biggest face palm moment I have ever had.

I was too young to remember it happening but the government/Gardai at the time handled the whole thing so badly I hope they hang their heads in shame to this day.

28064212

prinz wrote: »

They can hem and haw all they want, but it can be referred back to the court and the Council of Europe can expel a country which fails to abide by a ruling. No immediate danger, but I can't see the country risking that tbh.

Which requires someone to take another case to the court. It took 5 years for a judgement on the ABC case.

What ruling did the court actually deliver? Damages were awarded to C, and.... nothing else. The judgement:

FOR THESE REASONS, THE COURT
1. Dismisses unanimously the Government’s objection as to a failure to exhaust domestic remedies as regards the first and second applicants and joins this objection to the merits of the third applicant’s complaint under Article 8 of the Convention;

2. Declares unanimously the applicants’ complaints concerning abortion laws in Ireland under Articles 8, 13 and 14 admissible;

3. Declares by a majority the remainder of the application inadmissible;

4. Holds by eleven votes to six that there has been no violation of Article 8 of the Convention, or of Article 13 taken in conjunction with Article 8, as regards the first and second applicants;

5. Holds unanimously that there has been a violation of Article 8 of the Convention, and that no separate issue arises under Article 13 taken in conjunction with Article 8, as regards the third applicant;

6. Holds unanimously that no separate issue arises under Article 14 of the Convention in conjunction with Article 8 as regards all applicants;

7. Holds unanimously
(a) that the respondent State is to pay the third applicant, within three months, EUR 15,000 (fifteen thousand euros) in respect of non-pecuniary damage, plus any tax that may be chargeable;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

8. Dismisses unanimously the remainder of the claims for just satisfaction.

I assume Ireland paid the damages. There is no other ruling they need to abide by. There is nothing in there that puts any onus on Ireland to resolve the contradiction between its laws and constitution.

Jesus Wept

According to an RTE news report yesterday, we are in breach of the European convention of Human Rights because abortion is not available here, also on a number of other points too.

Tis a great country eh.

http://www.irishtimes.com/newspaper/breaking/2010/1216/breaking11.html

ilovelamp2000

Colibri wrote: »

ABORTIONS FOR ALL

Based on the research produced by Freakonomics authors, there is an argument for that

prinz

28064212 wrote: »

There is nothing in there that puts any onus on Ireland to resolve the contradiction between its laws and constitution.

It found that Ireland violated Article 8 of the European Convention on Human Rights by bestowing a legal right to a person, but effectively having no actual system by which that right can be exercised. There was no where for C to basically be judged elligible to come under the Article 40.3.3 of the Constitution. People from the Council of Europe will monitor the situation to see that Ireland stops violating Article 8 in that manner, and like I have said, ultimately a country can be expelled from the Council of Europe for refusing to abide by findings of the Court, when they have already signed up to do just that.

It might be put on the long finger but it's not like the status quo can continue indefinitely.

Rabidlamb

Colibri wrote: »

ABORTIONS FOR ALL

Good thing, we used up all our miniature American flags earlier in the week.

7sr2z3fely84g5

AFAIK its legal if the mother's life is in danger,but many doctors are afraid to carry out here due to facing a life sentence if they get the diagnosis wrong-

http://www.citizensinformation.ie/en/health/women_s_health/abortion_information_the_law.html

RachaelVO

ilovelamp2000 wrote: »

Based on the research produced by Freakonomics authors, there is an argument for that

Now that was an interesting read, particularly the stats on the reduction in crime etc;

prinz

RachaelVO wrote: »

Now that was an interesting read, particularly the stats on the reduction in crime etc;

We could all reduce crime rates if we had a free reign to kill undesirables.

28064212

prinz wrote: »

It found that Ireland violated Article 8 of the European Convention on Human Rights by bestowing a legal right to a person, but effectively having no actual system by which that right can be exercised. There was no where for C to basically be judged elligible to come under the Article 40.3.3 of the Constitution. People from the Council of Europe will monitor the situation to see that Ireland stops violating Article 8 in that manner, and like I have said, ultimately a country can be expelled from the Council of Europe for refusing to abide by findings of the Court, when they have already signed up to do just that.

It might be put on the long finger but it's not like the status quo can continue indefinitely.

Why not? It's exactly what has been happening for 19 years. The Irish Supreme Court, the highest arbiter in the country, made a ruling. By comparison, the ECHR's and Committee of Ministers' opinion is a light slap on the wrist. It makes a complete mockery of the entire legal system, as well as our constitution

PrincessLola

The government don't have the balls to even touch this topic. Meanwhile thousands flock to the UK for abortions each year, if a woman wants an abortion she will find a way to get one.

7sr2z3fely84g5

i cant imagine the amount of protests and death threats issued if it was legalised overnight.

prinz

28064212 wrote: »

Why not? It's exactly what has been happening for 19 years. The Irish Supreme Court, the highest arbiter in the country, made a ruling.

The Irish Supreme Court made a ruling which opened up a legal quagmire. They didn't make a ruling to force the government to do anything to clean it up.

28064212 wrote: »

By comparison, the ECHR's and Committee of Ministers' opinion is a light slap on the wrist. It makes a complete mockery of the entire legal system, as well as our constitution

If you say so. I wouldn't regard internation sanctions as a 'slap on the wrist' myself.

28064212

prinz wrote: »

If you say so. I wouldn't regard internation sanctions as a 'slap on the wrist' myself.

I said "by comparison". In terms of actual legal weight in the Irish system, it's a feather to the Supreme Court's elephant.

prinz wrote: »

The Irish Supreme Court made a ruling which opened up a legal quagmire. They didn't make a ruling to force the government to do anything to clean it up.

They delivered a judgement on what the constitution stated. From that moment, the government had two choices: referendum or legislation. Instead, it was "put on the long finger", and by all appearances, it will continue to stay there

prinz

28064212 wrote: »

They delivered a judgement on what the constitution stated. From that moment, the government had two choices: referendum or legislation. Instead, it was "put on the long finger", and by all appearances, it will continue to stay there

Yeah and the government went down the referndum route and looked for a constitutional amendment to reverse the Supreme Court's interpretation. This was rejected by the people. The Supreme Court's job is not to set social policy nor to force the government to follow any line of social policy. There was no imperative for the Government to amend anything because of what the Supreme Court said.

paddy0090

prinz wrote:

We could all reduce crime rates if we had a free reign to kill undesirables.

The point that was made in the book was that it's wrong to force motherhood on someone who is emotionally and finanically incapable of doing it in a fashion that benifits themselves and society. Levitt(Freakonomics) referred to a study done in Sweden in the 1920s that showed some women didn't have the maternal instinct to be good loving parents.

It has been shown time and again that single parent families are generally less stable and finanically capable than two parent ones. Children from these families are more likely to struggle at school and/or turn to crime. I'm not for a minute suggesting we tar them all with the one brush and deem them undesirables or failures. They are all entitled to equal treatment and a fair chance in life. But Levitt made a fair point that by giving women a choice the pool of potential criminals was dramatically reduced.

Of course in Ireland we incentivise single parent families with the welfare system and the church has been one of the biggest lobbiest for support for single mothers. I remember David Quinn - religious affairs correspondent- in the indo giving out about deadbeat dads. He neglected to mention that it's not worth there while to inform the welfare abnout support payments.

I think the current system of "get the boat ho!" is kinda of a system for the well off. Divide and conquer. We just pretend it's illegal when really it's legal if you have the cash to travel. An Irish solution to an Irish problem!

prinz

paddy0090 wrote: »

But Levitt made a fair point that by giving women a choice the pool of potential criminals was dramatically reduced.

So my point stands.

28064212

prinz wrote: »

Yeah and the government went down the referndum route and looked for a constitutional amendment to reverse the Supreme Court's interpretation. This was rejected by the people. The Supreme Court's job is not to set social policy nor to force the government to follow any line of social policy. There was no imperative for the Government to amend anything because of what the Supreme Court said.

The constitution says a woman has the right to an abortion in certain circumstances. Can a woman in those circumstances get an abortion? No, they can't.

paddy0090

prinz wrote: »

So my point stands.

There's a world of difference between genocide based on social status and individual choice of abortion. Your point is hyperbole!

PS Not everyone believes abortion to be murder.

2 stroke

Rabidlamb wrote: »

I had originally posted this in Irish Economy by mistake, carry on.

And then you posted it in After Hours by mistake.

Mike 1972

Rabidlamb wrote: »

I believe a referendum should be called for granting the right of abortion when the mothers life is at risk.

You want a referendum to change the constitution to.....essentially what it says right now

drkpower

28064212 wrote: »

The constitution says a woman has the right to an abortion in certain circumstances. Can a woman in those circumstances get an abortion? No, they can't.

Yourself and Prinz may be slightly at cross purposes here.

Prinz is right that the SC ruling didnt direct the Government to do anything, whereas the European Court did. But equally, you are right that the SC ruling left such uncertainty that the Government should have acted. But didnt.

But I agree with you on your fundamental point, that the likely response the Government will take is to ignore the European Ruling. They have so little to lose by ignoring it. While they have so much more to lose by grasping the nettle. It is depressing that decisions of Government are made that way, especially in such critical areas, but such is life.:(

Rabidlamb

PrincessLola wrote: »

The government don't have the balls to even touch this topic. Meanwhile thousands flock to the UK for abortions each year, if a woman wants an abortion she will find a way to get one.

Just over 4,000 Irish women did last year according to NHS records.
That number is reducing slightly, maybe others are going further afield.

Mike 1972 wrote:

You want a referendum to change the constitution to.....essentially what it says right now

I worded that badly, you were right to point it out.
This is what I should have said.

28064212 wrote:

The constitution says a woman has the right to an abortion in certain circumstances. Can a woman in those circumstances get an abortion? No, they can't.

28064212

drkpower wrote: »

Yourself and Prinz may be slightly at cross purposes here.

Prinz is right that the SC ruling didnt direct the Government to do anything, whereas the European Court did. But equally, you are right that the SC ruling left such uncertainty that the Government should have acted. But didnt.

The European Court only directed the government to pay damages. They found that they had violated Article 8 of the convention. The Coucil of Europe may direct the government to resolve the inconsistency. They haven't yet, there is no timeline on when a decision might be made, and even then, the government only have to stop violating Article 8, they do not have to resolve the constitutional inconsistency. It would be sufficient to announce to the public that you can't get an abortion in Ireland. The CoE also can't tell the government how to resolve it (although they can suggest), only that they must or Ireland could be kicked out.

On the other hand, we have the Constitution and the Supreme Court. The document which all laws must adhere to, and the final arbiters of what that document says. And it's ignored. Has there ever been a country that has had a constitutional contradiction for nearly 20 years? It's absolutely unbelievable. It's a total mockery of the entire legal and judicial system

drkpower wrote: »

But I agree with you on your fundamental point, that the likely response the Government will take is to ignore the European Ruling.

Yep

prinz

28064212 wrote: »

It would be sufficient to announce to the public that you can't get an abortion in Ireland.

You need a referendum for a constitutional amendment for that, to remove the possibility of the Supreme Court's interpretation. Funnily enough we already had that referendum a long time ago. It didn't pass.

wild_cat

prinz wrote: »

You need a referendum for a constitutional amendment for that, to remove the possibility of the Supreme Court's interpretation. Funnily enough we already had that referendum a long time ago. It didn't pass.

There you go.

A new generation has received the vote since and the older catholic majority are loosing numbers by the day.


I give it another 10/15 years and we'll have it here.

prinz

wild_cat wrote: »

There you go.
A new generation has received the vote since and the older catholic majority are loosing numbers by the day. I give it another 10/15 years and we'll have it here.

Great so in 10/15 years we'll vote to remove the option altogether? 2+2=5? Perhaps you should look again at the last two posts.

28064212

prinz wrote: »

You need a referendum for a constitutional amendment for that, to remove the possibility of the Supreme Court's interpretation. Funnily enough we already had that referendum a long time ago. It didn't pass.

I'm talking about the consequences of the ECHR ruling. They found that Ireland was in breach of Article 8 because C couldn't find out whether she was entitled to an abortion. A statement that she is not entitled to an abortion removes that violation. That would be unconstitutional, but the status quo is also unconstitutional, so no change there, but Ireland would no longer be violating Article 8

Of course, someone could take another case to the ECHR. But then (given that it took 5 years for the ABC case to receive a ruling), we're back to putting it on the long finger