TIOCFIADH AR LA: IRELAND'S STRUGGLE WITH ABORTION

Rachel A. Yorke*

The Republic of Ireland and its government have reflected certain policies of the Catholic Church for centuries. Of the approximately four million people living there, nearly ninety percent follow the doctrines of the Catholic Church. It is no wonder, then, that the Catholic Church greatly influences politics and everyday life in Ireland on a massive scale. One example is Ireland's policy on abortion. Abortion has long been, and continues to be, illegal in the Republic. Irish women of all ages, therefore, are forced to travel abroad in order to terminate a pregnancy. Figures show that the number of women who travel abroad to terminate a pregnancy is sizable, and is increasing each year.⁽¹⁾

Within the last decade, however, a changing shift in public attitude towards abortion in Ireland has slowly evolved. Several cases have reflected this change, with the most recent occurring only within the last three months. The government's actions on this most recent case, and the latest public opinion polls, indicate that Ireland may finally be on the threshold of permitting abortion (albeit in limited circumstances) within its borders, meaning it may not be long before women will finally be able to have access to safe abortions within Ireland.

This article will discuss the changing policy on abortion in Ireland during the past ten years. Part One provides a historical perspective on abortion in Ireland. Part Two examines Ireland's participation in the European Community, which greatly affected the deregulation of certain rights prohibited by Ireland because of the government's policy on abortion. Part Three analyses the trilogy of cases which changed the policy on the right to information about abortion clinics abroad and the right to travel for such purposes. Part Four scrutinizes the constitutional amendments passed as a result of those cases, due largely in part to public outrage. Part Five touches on the most recent abortion case in Ireland, and the public's reaction. Finally, Part Six concludes with a discussion of the future of abortion law in Ireland.

I. ABORTION LAW IN IRELAND

Abortion has been illegal under the common law of Ireland since the mid-nineteenth century.⁽²⁾ This law has been codified in many statutes, the first of which was drafted in 1803.⁽³⁾ In 1861 the Offences Against the Person Act of 1861 was codified and reflected the stance against abortion in Ireland.⁽⁴⁾ Sections 58 and 59 made it unlawful for any woman or any other person to procure an abortion and for a woman or any other person to supply any instrument to procure an abortion.⁽⁵⁾

As early as the 1930's, however, pro-life activists were beginning to think about a constitutional amendment to memorialize the right to life in Ireland.⁽⁶⁾ Irish fears about the possibility of overcoming illegal abortions were fueled by a 1939 English decision, Rex v. Bourne, which held that a physician who had performed an abortion was not liable under the 1861 Act where the abortion was necessary to keep the woman from becoming a physical or mental wreck.⁽⁷⁾

Irish pro-life advocates were also concerned after the Bourne decision because any liberalization of abortion laws in England meant that Irish women could more easily obtain an abortion outside Ireland.⁽⁸⁾ These concerns were further elevated during the 1960's and 70's, when other European countries and the United States began to liberalize their own abortion laws.⁽⁹⁾ The liberalization began closest to home when England passed an abortion act in 1967,⁽¹⁰⁾ allowing women to terminate their pregnancy in certain conditions. If within the first twelve weeks of pregnancy two doctors certified that either the child would be severely handicapped or that the pregnancy posed a risk to the health of the mother or to any existing child in her family "greater than if the pregnancy were terminate," abortion would be permitted.⁽¹¹⁾

In an attempt to prevent any liberalization of the abortion laws in Ireland, in 1979 the Health Family Planning Act was passed, which reaffirmed sections 58 and 59 of the 1861 Offences Against the Person Act.⁽¹²⁾ Then, in 1981, pro-life activists started campaigning for a constitutional amendment recognizing the right to life of the unborn.⁽¹³⁾ The campaign culminated in a constitutional amendment, approved by a greater than two-to-one margin, that recognized the right to life of the unborn.⁽¹⁴⁾ The Eighth Amendment, codified as article 40.3.3, provides that "The State acknowledges the right to life of the unborn and, with due regard to the equal life of the mother, guarantees in its laws respect, and, as far as practicable, by its laws to defend and vindicate that right."⁽¹⁵⁾

II. IRISH PARTICIPATION IN THE EUROPEAN COMMUNITY

In 1957, the Treaty of Rome, which established the European Economic Community (EEC), was signed and became effective on January 1, 1958.⁽¹⁶⁾ "The Community was originally comprised of three separate entities,⁽¹⁷⁾ but in 1993 came under one institution known as the European Union."⁽¹⁸⁾ "Ireland joined the EEC in 1973, and presently there are fifteen member states."⁽¹⁹⁾

"The EEC Treaty established four fundamental freedoms: the free movement of workers, services, capital and products as essential pillars supporting and facilitating economic unity."⁽²⁰⁾ The EEC, by design , works to promote the free trade of services and goods between the member states.⁽²¹⁾ Article 2 of the EEC Treaty provides:

The Community shall have as its task, by establishing a common market and approximatizing the economic policies of Member States, to promote throughout the Community a harmonious development of economic activities,a continuous and balanced expansion, an increase in stability, an accelerated raising of the standard of living and closer relations between the States belonging to it.⁽²²⁾

Member states of the EEC have the benefit of being part of the largest and most affluent consumer market in the world.⁽²³⁾ "EEC citizens realize a higher standard of living and greater access to a variety of goods and services."⁽²⁴⁾ In addition, a unified Europe provides political stability and enhances prospects of a lasting peace.⁽²⁵⁾ However, member states carry the responsibility of relinquishing some national sovereign prerogatives for the greater good of the whole community.⁽²⁶⁾

"The EEC Treaty is 'self-executing', meaning that it automatically becomes the law within the Member States once it has been ratified."⁽²⁷⁾ The Member States essentially transfer rights and obligations from their domestic legal systems to the EEC institutions, permanently limiting the Member States sovereignty.⁽²⁸⁾

"The success of the EEC is largely due to the allegiance of the member states to the community."⁽²⁹⁾ "However, this allegiance has resulted in a conflict between national sovereignty and conformity to the EEC."⁽³⁰⁾ The European Court of Justice (ECJ) retains the power to resolve any such conflict,⁽³¹⁾ often holding an individual member state's national law subordinate to the law created through an EEC agreement or treaty.⁽³²⁾ It is this power to hold a member nation's law subordinate which would influence the Irish courts in deciding the following cases.

III. THE TRILOGY OF CASES

A. The First Information Case

Following the passage of the Eighth Amendment to the Irish Constitution in 1981, pro-life groups who were successful in prohibiting Irish women from receiving abortions in their homeland now sought to prevent Irish women from traveling abroad for that service.⁽³³⁾ One such group, the Society for the Protection of Unborn Children [hereinafter SPUC],⁽³⁴⁾ targeted family-planning clinics that advertised the availability of abortions in Great Britain to Irish women.⁽³⁵⁾

In June of 1985, SPUC brought suit against Open Door Counselling, Ltd. and Dublin Well Woman Centre, Ltd, two Irish women's health clinics, alleging that their activities violated the Eighth Amendment's right to life of the unborn, and sought an injunction to stop these clinics.⁽³⁶⁾ These two family-planning clinics provided "non-directive counseling" on the options available to pregnant women,"⁽³⁷⁾ meaning the clinics counseled neither for nor against abortion.⁽³⁸⁾ Instead, they simply referred Irish women who had already decided to have an abortion to clinics in Great Britain, and in some cases arranged travel services.⁽³⁹⁾ For a pro-life group such as SPUC, allowing Irish women access to this kind of information was intolerable.

The Irish High Court found that the activities of the two clinics amounted to "counseling and assisting pregnant women to travel abroad to obtain further advice on abortion and to secure an abortion."⁽⁴⁰⁾ The court held that this activity violated the Eighth Amendment because it engaged in the destruction of the right to life of the unborn, which was found to be "fundamental."⁽⁴¹⁾ In issuing the injunction, the High Court summarily dismissed the clinics' claims that the counseling they provided was protected by the rights of free expression and privacy.⁽⁴²⁾ Judge Hamilton, writing for the court, stated that the "qualified right to privacy and the rights of association and freedom of expression...cannot be invoked to interfere with such a fundamental right as the right to life of the unborn."⁽⁴³⁾

On appeal, the Irish Supreme Court unanimously affirmed without explaining why the defendants' freedom of expression and privacy rights were inferior to the right to life of the unborn.⁽⁴⁴⁾ The Irish Supreme Court permanently enjoined the clinics from providing assistance to women seeking abortions, including referrals, making travel arrangements, and divulging the location of, or communication with, clinics.⁽⁴⁵⁾

The judgment of the Irish Supreme Court ended the clinics' hopes that the Irish courts would find that the rights to free expression and privacy trump the right to life of the unborn.⁽⁴⁶⁾ Their last avenue of appeal was the European Commission on Human Rights⁽⁴⁷⁾ on the grounds that the injunction violated provisions in the European Convention on Human Rights protecting freedom of speech (Article 10),⁽⁴⁸⁾ the right to privacy (Article 8),⁽⁴⁹⁾ and the right to Equal Protection of the laws (Article 14).⁽⁵⁰⁾

The Commission ultimately decided the case solely on the freedom of expression claim.⁽⁵¹⁾ As the injunction issued against the clinics actually interfered with the clinics' right to free expression, the Commission asked whether the interference was "prescribed by law," as required by Article 10.⁽⁵²⁾ Under clear precedent, a restraint is "prescribed by law" if it is adequately accessible and reasonably foreseeable.⁽⁵³⁾ The Commission concluded that the clinics could not have foreseen that Irish law prohibited their actions.⁽⁵⁴⁾ It thus concluded that the injunction was not "prescribed by law" and violated Article 10.⁽⁵⁵⁾ The Commission then referred the case to the European Court on Human Rights (ECHR).⁽⁵⁶⁾

In 1992, the ECHR upheld the Commission's ruling,⁽⁵⁷⁾ but found that the injunction issued against the clinics violated Article 10 for different reasons than the ones articulated by the Commission.⁽⁵⁸⁾ The ECHR held that the injunction was prescribed by law, but concluded that the restrictions on the dissemination of information was "over broad and disproportionate in relation to its purpose of protecting morals."⁽⁵⁹⁾ The Court deemed the restriction to be overbroad because it proposed a "perpetual restraint on the provision of such information . . . regardless of a woman's age or state of health or . . . reasons for seeking counseling on the termination of pregnancy."⁽⁶⁰⁾

"Because the ECHR found that the restriction on the dissemination of information violated Article 10 of the Convention, it did not decide whether a right to abortion is guaranteed under Article 8 or Article 14."⁽⁶¹⁾ "The Court has yet to revisit these issues."⁽⁶²⁾

B. The Second Information Case

In SPUC v. Grogan,⁽⁶³⁾ the Irish courts faced another case involving the Eighth Amendment. Shortly after the Irish Supreme Court had ruled on the Open Door Case, SPUC sued three student organizations that published the names, addresses, and phone numbers of abortion clinics in Great Britain.⁽⁶⁴⁾ SPUC argued that such conduct violated the right to life of the unborn as it had in Open Door Counselling and requested a similar injunction.⁽⁶⁵⁾ The student groups argued that their activities were protected under Articles 59 and 60 of the EEC Treaty, which guarantees the right to travel between member states in order to receive services.⁽⁶⁶⁾ Irish citizens, they contended, had a right to receive and impart information about services that were lawful in other member states because they were citizens of a member state.⁽⁶⁷⁾

Rather than rule on the community law issue itself, the Irish High Court referred the case immediately to the Court of Justice of European Communities (E.C.J.),⁽⁶⁸⁾ pursuant to Article 177 of the EEC Treaty.⁽⁶⁹⁾ The High Court requested a determination as to whether abortion was a "service" under Article 60 of the EEC Treaty and whether Ireland might nevertheless be able to impose restrictions on the distribution of materials describing the availability of abortion services abroad.⁽⁷⁰⁾

Before the ECJ could render a decision, SPUC appealed to the Irish Supreme Court.⁽⁷¹⁾ The defendant challenged the jurisdiction of the Irish Supreme Court on the ground that only a "decision" by the High Court could be appealed to the Irish Supreme Court.⁽⁷²⁾ The Supreme Court found that the High Court had actually made two "decisions," the first in referring the issue to the ECJ and the second in refusing to grant the requested injunction to the SPUC.⁽⁷³⁾ Since at least an eighteen month delay would be required to get a decision from the ECJ, the delay in issuing the injunction was equivalent to a decision not to grant one.⁽⁷⁴⁾ Thus, the Supreme Court found that it did have jurisdiction to hear the appeal.⁽⁷⁵⁾

The Supreme Court could not reverse the High Court's referral to the ECJ, but it left little doubt as to where it stood.⁽⁷⁶⁾ Restating its position on the "fundamental" right to life of the unborn, the Irish Supreme Court held that where the right sought to be protected is that of a life, there can be no question of a possible or putative right which might exist in European law as a corollary to the right to travel to procure services.⁽⁷⁷⁾ Seemingly, the Irish Supreme Court implied that regardless of what the ECJ decided, it would have the last say as to whether abortion was a service which could be advertised.⁽⁷⁸⁾

The appeal by SPUC to the Supreme Court turned out to be unnecessary, as the ECJ, not wanting to risk a showdown, avoided deciding the main issue of the legality of abortion.⁽⁷⁹⁾ The court did rule that abortion constituted a "service" within the meaning of Article 60 of the EEC Treaty and thus was not subject to restrictions.⁽⁸⁰⁾ However, it held that the student groups lacked standing to raise a freedom of expression defense because the link between the activities of the student groups and the abortion clinics was "too tenuous" for the prohibition on the distribution of information to be capable of being regarded as a restriction within the meaning of Articles 59 and 60.⁽⁸¹⁾

The Court went on to state that "it is not contrary to Community law" for Ireland to prohibit student groups from distributing information about abortion clinics in member states where the procedure is legal so long as the clinics have no involvement in the activities.⁽⁸²⁾ Member states are allowed deference to restrict free movement of services for "justified public policy reasons,"⁽⁸³⁾ and the ECJ decision was based mainly on respect for that deference.⁽⁸⁴⁾

In light of the European Court of Justice's ruling, the Irish High Court issued a permanent injunction against the students in August of 1992.⁽⁸⁵⁾ However, in holding that abortion was a service within the meaning of Article 60, the ECJ did leave open the possibility that, should a party more directly connected to providing abortion services become involved, the outcome could be vastly different.

C. The X Case

Later that same year, following the conclusion of the Grogan case, events would change the tide in favor of pro-choice activists regarding the right to travel and the right to information. In Attorney General v. X,⁽⁸⁶⁾ a fourteen year old school girl had been raped and impregnated by her father's best friend.⁽⁸⁷⁾ Her parents took her to England to terminate the pregnancy.⁽⁸⁸⁾ Attempting to provide proof of paternity, the girl's parents contacted gardai (Irish police) to see if the aborted fetus could be used for deoxyribonucleic acid (hereinafter DNA) testing.⁽⁸⁹⁾ The gardai approached the Director of Public Prosecutions, who informed them that the evidence would be inadmissible.⁽⁹⁰⁾ The parents decided to proceed with their plans and accompanied their daughter to England the following day.⁽⁹¹⁾ However, the Attorney General applied, ex parte, for a temporary injunction which was granted to prevent the girl from having the abortion.⁽⁹²⁾ The parents decided to comply with the injunction and return to Ireland, but made it clear that if a permanent injunction was not granted, they would proceed with the decision to abort.⁽⁹³⁾

At trial, the High Court issued a permanent injunction prohibiting the girl from traveling to England.⁽⁹⁴⁾ The court reasoned that although the Oireachtas (Prime Minister) had failed to legislate on the issue of conflicting rights, it was clear from the language of section 40.3.3 that any means of destroying the life of an unborn child was repugnant to the laws of Ireland.⁽⁹⁵⁾ While acknowledging that there was a real risk that "X" might commit suicide as she had threatened to, the Irish High Court stated that the "risk that the defendant might take her own life if an order is made is much less and of a different order of magnitude than the certainty that the life of the unborn will be terminated if the order is not made."⁽⁹⁶⁾

Furthermore, while recognizing the fundamental right to travel to procure services for all EEC citizens, the High Court found that there is also a public policy derogation that could be invoked by a Member State to prohibit such travel.⁽⁹⁷⁾ The Court relied on the restrictions imposed by national law, "unequivocally expressed" by the electorate through a constitutional amendment, that required the Court to vindicate the right to life of the unborn.⁽⁹⁸⁾ Under such circumstances, Community law permitted the Court an "area of discretion" to derogate from the Treaty and to impose the necessary restriction on the right to travel.⁽⁹⁹⁾

The ruling caused world-wide outrage and protests.⁽¹⁰⁰⁾ "Demonstrators took to the streets of Dublin with signs that read 'Rapists 1- Women 0,' 'Human Rights for Rape Victims,' and 'Ireland Defends Men's Right to Procreate by Rape.'" A poll taken showed two-to-one support for modifying the Eighth Amendment to allow abortion under some circumstances.⁽¹⁰¹⁾

Surprisingly, the Irish Supreme Court reversed the lower court's decision and discharged the injunctions.⁽¹⁰²⁾ Four of five justices who heard the case held that abortion is permissible if the pregnancy presents a real and substantial threat to the mother's life.⁽¹⁰³⁾ The Supreme Court found X's threat of suicide to be a real and substantial risk to her life because it is nearly impossible to prevent suicide.⁽¹⁰⁴⁾ However, although all five justices agreed there is an unenumerated fundamental right to travel, three of the justices argued that absent a real and substantial risk to the mother's life, such a right would be subordinate to the right to life of the unborn.⁽¹⁰⁵⁾

Undeniably, though, the holdings in X made it clear that an Irish woman was legally permitted to obtain an abortion abroad if the pregnancy posed a substantial risk to her life.⁽¹⁰⁶⁾ Also made clear was the fact that the threat of suicide might constitute such a risk in the event that the woman was forced to carry the pregnancy to term.⁽¹⁰⁷⁾

IV. LEGISLATION IN THE WAKE OF THE X CASE

A. The Maastricht Treaty

The public reaction to and final disposition of the X Case set in motion the passage of two constitutional amendments that would significantly alter abortion law in Ireland.⁽¹⁰⁸⁾ Prior to the X Case, Ireland had signed the Maastricht Treaty,⁽¹⁰⁹⁾ which was designed to foster an economic, monetary, and political union among the European Community nations.⁽¹¹⁰⁾ When the Maastricht Treaty was drafted, the Irish government insisted on a special protocol that would guarantee the Community would not interfere with Ireland's enforcement of the Constitutional ban on abortion.⁽¹¹¹⁾ The drafters acquiesced to Ireland's request and included the protocol.⁽¹¹²⁾

Following the decision in the X Case, however, Irish Prime Minister Albert Reynolds feared that public backlash against the decision would cause the Maastricht Treaty containing the Protocol to be defeated.⁽¹¹³⁾ Reynolds asked the Community to further amend the Treaty to guarantee Irish women the right to travel abroad and the right to information about abortion, but the nations refused.⁽¹¹⁴⁾ They claimed that granting Ireland's request would open a "Pandora's box," leading other nations to also demand changes.⁽¹¹⁵⁾ The Protocol remains in the Maastricht Treaty.⁽¹¹⁶⁾

B. Constitutional Amendments 13 and 14

To ensure that the nation's abortion crisis would not jeopardize ratification of the Maastricht Treaty and given the public sentiment following the X decision, Reynolds announced that in November of 1992 a separate referendum on abortion would be put forth.⁽¹¹⁷⁾ The first two proposals effectively guaranteed that women would have the right to travel to other European Community [hereinafter EC] states for abortions and that information about lawful abortion abroad would be freely available in Ireland.⁽¹¹⁸⁾ The third proposed that the following language be added to article 40.3.3 of the Irish Constitution: "It shall be unlawful to terminate the life of the unborn unless such termination is necessary to save the life, as distinct from the health, of the mother where there is an illness or disorder of the mother giving rise to real and substantive risk to her life, not being a risk of self-destruction."⁽¹¹⁹⁾

The Irish government supported each of the proposals, and urged constituents to pass the legislation.⁽¹²⁰⁾ By doing so, the government was basically reversing the position it had taken in Open Door, Grogan, and the X Case. It abandoned efforts to restrict either information about abortion or the right to travel abroad to obtain an abortion.⁽¹²¹⁾ However, the government was trying to limit the effects of the X Case by eliminating suicide as a legitimate ground for justifying abortion.⁽¹²²⁾

Irish voters approved the first two proposals, but rejected the third.⁽¹²³⁾ Over sixty-two percent of voters voted to permit women to travel abroad to obtain an abortion, and sixty percent voted to make information about abortion available in Ireland.⁽¹²⁴⁾ Sixty-five percent of the voters, however, rejected the third proposal attempting to restrict abortions to save the life of the mother.⁽¹²⁵⁾

On December 3, 1992, the two accepted proposals were incorporated into Article 40.3.3 of the Irish Constitution as Amendments Thirteen and Fourteen.⁽¹²⁶⁾ The Thirteenth Amendment provides that the right to life of the unborn as protected by the Eighth Amendment "shall not limit the freedom to travel between the state and another state."⁽¹²⁷⁾The Fourteenth Amendment provides that the Eighth Amendment "shall not limit the freedom to obtain or make available, in the State, subject to such conditions as may be established by law, information to services lawfully available in another state."⁽¹²⁸⁾

The Thirteenth Amendment on its face suggests that the Eighth Amendment could never again, under any circumstances, be interpreted as prohibiting a woman from traveling abroad to obtain an abortion, marking a radical departure from the majority view in the X Case that such travel was permitted only when the life of the mother was at stake.⁽¹²⁹⁾However, the language "subject to such conditions" contained in the Fourteenth Amendment left open the possibility that legislation could all but eliminate the right to receive information relating to abortion and reinstate the Open Door and Grogan regime.⁽¹³⁰⁾

C. The Abortion Information Act of 1995

The fact that it took until March of 1995 to enact any legislation to the contrary reflects the strength of the pro-life lobby, and the unwillingness of most politicians to place their jobs on the line for an issue as controversial as abortion.⁽¹³¹⁾ It was only with the entrenchment of a coalition government that new legislation ensuring access to such information showed signs of becoming a reality.⁽¹³²⁾

The President of Ireland submitted the Information Bill⁽¹³³⁾ to the Irish Supreme Court on March 18, 1995.⁽¹³⁴⁾ "The Information Bill was referred to the Supreme Court pursuant to Article 26 of the Irish Constitution, which provides that the President may refer any bill to the Supreme Court for a determination of whether a bill is repugnant to any other provision of the constitution."⁽¹³⁵⁾ "However, once a bill has been submitted to the Supreme Court, Article 26 forbids the President from signing it if the court concludes that constitutional provisions are jeopardized by the introduction of the bill in question."⁽¹³⁶⁾ On May 12, 1995, the Irish Supreme Court handed down a unanimous decision declaring that the Information Bill was not repugnant to any provisions in the Constitution.⁽¹³⁷⁾

The Information Bill amended the Indecent Advertisements Act of 1889 and the Censorship of Publication Acts of 1929 and 1967⁽¹³⁸⁾ to allow information regarding the termination of pregnancies legally performed outside the state to be provided to women and the general public.⁽¹³⁹⁾ The Act delineates how and under what circumstances publishers of abortion material, and organizations offering pregnancy counseling, can disseminate information concerning abortion.⁽¹⁴⁰⁾ However, the 1995 Act overall reflects the belief that while Irish women are entitled to receive information that will help them make intelligent decisions about their pregnancies, under no circumstances should such information be presented in a way that advocates or encourages abortion.⁽¹⁴¹⁾

V. THE C CASE

In the fall of 1997, a thirteen year-old girl was impregnated as a result of rape.⁽¹⁴²⁾ The girl, one of twelve children, was placed into temporary care with the Eastern Health Board (EHB).⁽¹⁴³⁾ The girl reportedly wanted to travel to England to terminate her pregnancy.⁽¹⁴⁴⁾

The 1992 constitutional amendments made clear the anti-abortion amendment of 1983 could not be used to terminate the freedom to travel if parents decided to take their daughter abroad for an abortion, and in fact there had been numerous instances of such.⁽¹⁴⁵⁾ There was concern, though, that the EHB, standing in loco parentis, would need permission from the High Court before they could do the same.⁽¹⁴⁶⁾ However, seeking a ruling from the High Court would leave the Health Board less exposed to a legal challenge from a group such as SPUC.⁽¹⁴⁷⁾ The Health Board also faced opposition from the girl's parents, who not only wanted to regain physical custody of their daughter, but also wanted her carry the pregnancy to term.⁽¹⁴⁸⁾

On November 21, 1997, Judge Mary Fahy of the Children's Court ordered that the girl remain in the custody of the EHB, which would allow her to receive free medical care, including an abortion.⁽¹⁴⁹⁾ The parents immediately filed an appeal to the High Court, and replaced their original legal team from the free legal aid scheme with a new set of lawyers whose costs would be paid by the anti-abortion group Youth Defence.⁽¹⁵⁰⁾ "A High Court judge put a stay on the Children Courts' order following the application on behalf of her parents."⁽¹⁵¹⁾

Following three days of private hearings,⁽¹⁵²⁾ High Court Justice Geoghegan rejected the appeal filed by the girls' parents, ordering that the girl was free to travel to England for an abortion.⁽¹⁵³⁾ During the hearings, however, both parties had agreed that if they wished to appeal the High Court's decision, they would submit papers by the end of the business day on Friday, which was the decision date.⁽¹⁵⁴⁾ Furthermore, the EHB agreed not to take the girl out of the country pending any appeal to the Supreme Court, should they prevail at the High Court level..⁽¹⁵⁵⁾

No papers were filed with the High Court within the required time frame,⁽¹⁵⁶⁾ but the Supreme Court agreed to a sitting on the Monday following the decision anyway.⁽¹⁵⁷⁾ However, it became clear by mid-morning on Monday that the parents had decided not to appeal the High Court decision.⁽¹⁵⁸⁾ The girl was free to travel to England, and was accompanied by her EHB guardian in early December 1997 to terminate her pregnancy.⁽¹⁵⁹⁾ In addition, contrary to the situation in the X Case, two gardai accompanied the girl as well to retrieve DNA evidence for a prosecution case against the man suspected of raping her.⁽¹⁶⁰⁾

The public reaction to this latest controversy has demonstrated the remarkable evolution of their attitude towards abortion since the Eighth Amendment was passed back in 1983, and indicates that limited abortion in Ireland may not be that far away. A public opinion poll conducted by the Irish Times following the C Case indicates some seventy-seven percent of voters polled feel that abortion facilities should be provided in Ireland to deal with termination in limited circumstances (and fifty-five percent believe the medical profession in Ireland should provide abortion facilities): with the situations ranging from the ultra-liberal view of "for those who need it" (twenty-eight percent); to a risk to the mother's health (fourteen percent); and to a risk to the life of the mother (thirty-five percent).⁽¹⁶¹⁾

Almost two thirds of those polled believe the High Court made the right decision in the C Case allowing the girl to travel to England for an abortion.⁽¹⁶²⁾ Most surprisingly, though, is that only eighteen percent of voters polled believe abortion should not be permitted in any circumstances. This statistic indicates that the people of Ireland have liberalized their view on abortion substantially from 1983, when abortion of any kind was simply intolerable.

VI. CONCLUSION

The most recent in a series of abortion cases in Ireland indicates that the time is ripe for the government to prioritize the issue. The Irish Family Planning Association has called for the introduction of abortion legislation.⁽¹⁶³⁾ The Minister of Health, Brian Cowen, will establish a sub-committee to oversee the work of an interdepartmental working group on all the implications of the matter.⁽¹⁶⁴⁾ The sub-committee will examine relevant legislation, including sections of the 1861 Offences Against the Person Act, Article 40.3.3 of the Irish Constitution, the Supreme Court decision in the X Case, and the High Court's decision in the C Case.⁽¹⁶⁵⁾

Members of the working group are drawn from the Departments of Health, Justice, Foreign Affairs, and the Attorney General's Office,⁽¹⁶⁶⁾ and will represent the full spectrum of viewpoints on abortion in Ireland today. However, of any potential legislation proposed by the sub-committee, fifty-five percent of those polled want abortion legislation to be approved first by the electorate.⁽¹⁶⁷⁾

The X and C Case demonstrate that hard, individual cases tend to dispel a climate of moral absolutism. While it is unlikely that Ireland will completely reverse its current policy and permit unrestricted abortions within the near future, the possibility that a woman could soon obtain a safe abortion in Ireland, though only in limited circumstances, is a monumentous step for women in this highly religious country. Tiocfiadh Ar La!⁽¹⁶⁸⁾

*Rachel A. Yorke is an associate with Bass, Doherty and Finks, P.C., Boston, Massachusetts. She received her J.D. from the New England School of Law in 1998.

48. Article 10 provides:

(1) Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing, of broadcasting, television, or cinema enterprises.

(2) The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, 213 U.N.T.S. 222, 230.

49. Article 8 provides:

(1) Everyone has the right to respect for his private and family life, his home and correspondence.

(2) There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary for in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.Id.

50. Article 14 provides:

(1) The enjoyment of rights of freedoms set forth in this Convention shall be secured without any discrimination on any such ground such as sex, race colour, language, religion, political or other opinion, national, or social origin, associated with a national minority, property, birth, or status. Id. at 232.

51. See Koegler, supra note 6, at 1129.

52. Open Door Counselling, 14 Eur. H.R. Rep. At 135-137 [hereinafter Commission Report].

53. See Koegler, supra note 6, at 1129..See, e.g. Sunday Times v. United Kingdom, 2 Eur. H.R. Rep.245, 271 (1979). The purpose of this rule is "to enable individuals to regulate their conduct in the light of the foreseeable consequences of a given action." Id.

54. Commission Report, supra note 52.

55. Id. at 137-138.

56. See supra text accompanying note 47.

57. Open Door v. Ireland, 246 Eur. Ct. H.R. (ser A0 8, 26 (1992)).

58. See id. at 32

59. Id. at 30.

60. Id.

61. See Koegler, supra note 6, at 1130.

62. Id.

63. [1989] I.R. 753 (Ir.H.Ct.).

64. The three student organizations were the Union Students of Ireland, The Students' Union of University College Dublin, and the Students' Union of Trinity College Dublin. [1989] I.R. at 760.

65. Id.

66. See id. at 761.

67. See id.

68. Case C-159/90, Society for the Protection of Unborn Children Ireland Ltd. v. Grogan, [1991] E.C.R.4685, 4733, 2 CEC (CCH) 539, 576 (1991).

69. Article 177 provides in relevant part:

The Court of Justice shall be competent to make a preliminary decision concerning:

(a) the interpretation of the Treaty;

(b) the validity and interpretation of acts of the institutions of the Community;

(c) the interpretation of the statutes of any bodies set up by an act of the Council, where such statutes so provide.

Where any such question is raised before a court of tribunal of one of the Member States, such court or tribunal may, it if considers that its judgment depends on a preliminary decision on this question, request the Court of Justice to give a ruling thereon...

EEC Treaty, supra note 8.

70. Case C-159/90, Society for the Protection of Unborn Children Ireland Ltd. v. Grogan, [1991] E.C.R.4685, 4733, 2 CEC (CCH) 539, 576 (1991).

71. See Koegler, supra note 6, at 1131.

72. See [1989] I.R. 753 (Ir.H.Ct), aff'd in part, rev'd in part [1989] I.R. 760 (Ir.S.C.).

73. Id.

74. See id. at 761. The Supreme Court accepted jurisdiction because when the matter was presented before the High Court "it was clear... that the activities complained of were contrary to the Constitution." Id.

75. See id. at 768.

76. See Klashtorny, supra note 33, at 426.

77. [1989] I.R. at 765 [Ir.S.C.].

78. See Klashtorny, supra note 33, at 427.

Any answer to the reference received from the Court of Justice of the Eurpean Communities will have to be considered in light of our own constitutional provisions. In the last analysis only this Court can decide finally what are the effects of the Eighth Amendment of the Constitution and the Third Amendment of the Constitution.

[1989] I.R. at 768-69 [Ir.S.C.].

79. See Klashtorny, supra note 33, at 427.

80. Case C-159/90, Society for the Protection of Unborn Children Ireland Ltd. v. Grogan, [1991] E.C.R.4685, 4739, 2 CEC (CCH) 539, 582 (1991).

81. See id.

82. See id. at 4740.

83. See Treaty of Rome, supra note 16, art. 56, 298 U.N.T.S. at 39.

84. See Klashtorny, supra note 33, at 427.

85. See id. Because the ECJ did not find a violation of Community law, it had lacked the jurisdiction to refer the case to the European Court of Human Rights.Treaty of Rome, supra note 16, art, 298 U.N.T.S. at 39.

86. Attorney General v. X 12 I.L.M.R. 401 (Ir. H.Ct.)[1992], rev'd in 12 I.L.M.R. 414 (Ir.S.C.)[1992].

87. See id. at 406.

88. See id. The young girl had threatened to commit suicide if she were forced to carry the pregnancy to term.

89. See id.

90. See id. However, this was not completely accurate. See Stoffregen, supra note 20, at 573, for a detailed analysis of what the then-current law actually was.

91. See Attorney General v. X 12 I.L.M.R. 401, 406 (Ir. H.Ct.)[1992], rev'd in 12 I.L.M.R. 414 (Ir.S.C.)[1992].

92. See id. The injunction contained the following orders:

(a) An order restraining the defendants . . . from interfering with the right to life of the unborn as contained in Article 40.3.30 of the Constitution of Ireland on such terms as to this Court shall seem meet and just.

(b) An order restraining . . . defendant(s) from leaving the jurisdiction . . .[or] from assisting the first defendant to leave the aforesaid jurisdiction for a period of nine months from the date hereof or such other period as may be specified . . .

(c) An order restraining the first defendant . . .from procuring or arranging a termination of pregnancy or abortion whether within or without the jurisdiction . . .

Id. at 408.

93. See id. at 406.

94. See id. at 414.

95. See id. at 420.

96. Attorney General v. X, 12 I.L.M.R. (1992) at 420. It was not certain that the mother would lose her life as a result of the delivery; yet, it was certain an abortion would destroy the life of the fetus.

97. See id. at 412.

98. See id. at 413. The High Court relied on the ECJ decision of R. v. Bouchereau, [1977] E.C.R. 1999, and Van Duyn v. Home Office, [1974] E.C.R. 1337 in its discussion of public policy derogation.

99. See id. The Human Rights Convention grants member states broad discretion on moral matters and there is nothing explicit in Community law that prohibits deviation from Treaty rights "arising because of deeply held conviction on moral issues."

100. See Stoffregen, supra note 20, at 543; Klashtorny, supra note 33, at 428.

101. See Klashtorny, supra note 33, at 428.

102. See Attorney General v. X, 12 I.L.M.R. (1992) at 427.

103. See id.at 425.

104. See id. at 426.

105. See id. at 429-430.

106. See Klashtorny, supra note 33, at 429.

107. See id.

108. See Stoffregen, supra note 20, at 1134.

109. Treaty on European Unity and Final Act, Feb. 7, 1992, 31 I.L.M. 247 [hereinafter Maastricht Treaty].

110. See Cole, supra note 9, at 134.

111. See id. Protocol 17 provided that nothing in Community law "shall affect the application in Ireland of Article 40.3.3 of the Constitution of Ireland." Id.

112. See id. at 128.

113. See Weinstein, supra note 101, at 194-195.

114. See id.

115. See Klashtorny, supra note 33, at 430.

116. See id.

117. See Cole, supra note 9, at 134 & 139.

118. See id. at 139.

119. Id.

120. See id.

121. See id. 140.

122. See Cole, supra note 9, at 140.

123. See id.

124. See id..

125. See id.

126. See id..

127. Ir. Const. amend. XIV (incorporated at Article 40.3.3).

128. Ir. Const. amend. XIV (incorporated at Article 40.3.3).

129. See Koegler, supra note 6, at 1136.

130. See id.

131. See id.

132. See id. The coalition government consisted of members of the Labour party, Fine Gail, and Democratic Left.

133. See No. 87 (Ir. S.C. May 12, 1995) available in LEXIS, Ireland Library, Cases File at *3-6 [hereinafter "In re Article 26"].

134. See id. at *2.

135. See Carder, supra note 3, at 268.

136. Id.

137. See id. at 269.

138. See In re Article 26 (quoting the Regulation of Information Bill).

139. See id.

140. See Koegler, supra note 6, at 1137.

141. See id.

142. See Paul Cullen, Family's Trauma Exposes Politicians' Failure to Complete Work on Abortion, IRISH TIMES, Nov. 18, 1997, at 5. The girl was raped in early September. The man who raped the girl is believed responsible for another rape and an assault on a couple in their fifties, and is being protected by members of his own family. Kevin Myers, An Irishman's Diary, IRISH TIMES, Nov. 21, 1997, at 15.

143. See id. The girl's family were travelers (also negatively referred to as tinkers or knackers). The traveling community are people who by choice live nomadic lives, living in trailers and parking them on the sides of roads or in fields. There has been much strife and arguments over these people, who often camp out on people's property without permission. (At the time the girl in question was taken into protective care, her family of 14 were living in two caravans on the side of the road,) The children usually do not attend schools, and are often left by themselves for periods of time. This is probably one of the main reasons the girl was taken into protective care.

144. See Paul Cullen, Girl at Centre of Abortion Controversy to Remain in Care of Health Board, IRISH TIMES, Nov. 22, 1997, at 6.

145. See Six Girls Under 15 Went for an Abortion, IRISH TIMES, Nov. 21, 1997 at 9 (discussing the latest statistics of Irish women and girls traveling abroad to obtain an abortion).

146. See Cullen, supra note 143, at 5.

147. See id. There was a great concern from pro-life groups that not only would the Eastern Health Board help facilitate an abortion by arranging for the girl to travel abroad, but also that EHB (and thus the government) would end up paying for the abortion as well.

148. See Cullen, supra note 145. The parents originally had agreed to take the girl to England for an abortion. When asked why they had changed their minds, the father replied that they were under stress and duress, and were in a panic situation. Girl's Father Claims EHB "Kidnapped" His Daughter, IRISH TIMES, Dec. 2, 1997, at 10.

149. See Cullen, supra note 145, at 6.

150. See id.

151. See High Court to Resume Appeal Hearing, IRISH TIMES, Nov. 26, 1997, at 4.

152. The hearings were held in camera on the following days: Tuesday, November 25; Wednesday, November 26; and Thursday, November 27. The decision was delivered on Friday, November 28, 1997.

153. See Padraig O'Morain, Archbishop Not to Fund Court Appeal on Abortion, IRISH TIMES, Dec. 1, 1997, at 1.

154. See id.

155. See Christine Newman, Rape Victim Free to Have Abortion in England, IRISH TIMES, Dec. 2 1997, at 10.

156. See Padraig O'Morain, Archbishop Not to Fund Court Appeal on Abortion, IRISH TIMES, Dec. 1, 1997, at 1.

157. See id.

158. See O'Morian, supra note 154. In an interesting development, the parents had asked the Catholic Archbishop of Dublin to pay for the Supreme Court appeal, but were turned down. See id.

159. See Christine Newman and Jim Cusack, Thirteen Year Old Rape Victim Had Abortion in England Yesterday, IRISH TIMES, Dec. 4, 1997, at 4.

160. See id.

161. See Geraldine Kennedy, Seventy-Seven Percent Say Limited Abortion Right Should Be Provided, IRISH TIMES, Dec. 11, 1997, at 1; Finding For Abortion, IRISH TIMES, Dec. 11, 1997, at 17.

162. See Geraldine Kennedy, Seventy-Seven Percent Say Limited Abortion Right Should Be Provided, IRISH TIMES, Dec. 11, 1997.

163. See Christine Newman, Laws Sought on Abortion After Parents' Decision to Halt Action, IRISH TIMES, Dec. 2, 1997, at 10.

164. See Maol Muire Tynan, Deadline of Next June Set for Drafting of Abortion Green Paper, IRISH TIMES, Dec. 3, 1997, at 4.

165. See id.

166. See id. The sub-committee will be chaired by Mr. Cowen, regarded as a conservative pragmatist of the middle ground; Mary O'Rourke and Liz O'Donnell, viewed as liberals on the question; John O'Donoghue, a pro-life supporter; and Attorney General David Byrne, who is not thought to have trenchant views on the issue of abortion.

167. See id.

168. The Gaelic translation is "our day will come" (or, literally, 'coming our day'). This phrase was adopted by the Irish Republican Army(IRA) in 1982. During that year, thirteen IRA prisoners at the Maze Prison, Belfast, went on a hunger strike to protest prison conditions and the British government's refusal to recognize them as political prisoners. Bobby Sands, the organizer of the hunger strike and the leader of the IRA within the prison, was the first one to die and quoted this Gaelic phrase on his deathbed.