Belfast Telegraph

Tuesday 21 October 2014

'X' marks spot for changes to anti-woman irrationality

Taking to the streets: mass demonstrations protested against the ruling by Judge Declan Costello in the ‘X’ abortion case

In the High Court in Dublin 20 years ago tomorrow, a hearing opened under Judge Declan Costello in the matter of 'X'-v-the Attorney General. The case was to have a profound effect on thinking on abortion in the Republic. But the issues it raised remain unresolved.

'X' was a 14-year-old girl, pregnant as a result of rape by a neighbour, who wanted to travel to London for an abortion, but had been ordered by Attorney General Harry Whelehan to remain in Ireland and carry the pregnancy to full term.

Within a week, tens of thousands were on the streets demanding that she be allowed to travel. The vast majority were not stereotypical right-to-choosers. Labour Party senator and Trinity law professor Ivana Bacik this week recalled marching through Dublin alongside her devoutly Catholic grandmother.

All over the state, people asked themselves, "What if it were my daughter, sister, pupil, friend?" and realised, sometimes with a jolt, they were not against abortion in all circumstances after all.

Whelehan had issued his order under a 1983 amendment to the constitution putting the right to life of the foetus on the same footing as the rights of the mother. 'Pro-life' groups used the amendment to pursue anyone supplying women with information about abortion facilities in Britain.

Officers of student unions were threatened with jail if they continued catering for women students who asked how to contact clinics in England. Libraries cleared their shelves of the Golden Pages, where the British Pregnancy Advice Service and Marie Stokes had placed adverts.

The upsurge of instinctive solidarity with 'X' put a halt to the gallop towards anti-woman irrationality.

Justice Costello heard how 'X' had spoken of throwing herself under a train and tried to throw herself down the stairs at home. A clinical psychologist gave evidence that there was real and substantial risk she'd commit suicide if forced to continue the pregnancy.

Costello ruled against her and - this was the trigger for the mass demonstrations - ordered that she be prevented from leaving the state for nine months.

As concern for the girl and outrage against her 'internment' grew, and demonstrations began outside embassies and consulates in Europe and the US, the case was hustled into the Supreme Court in record time.

The former diplomat Eamon Delaney, now a journalist in Dublin, has described younger staff members at the New York consulate photocopying leaflets for demonstrators outside who were running short of supplies.

The Supreme Court overturned Costello's decision, ruling that a 'real and substantial' risk of suicide allowed abortion under the wording of the 1983 amendment.

In November 1992, the government put forward three proposals arising from the Supreme Court decision in a referendum.

The rights to travel and to supply information were passed, while a proposal to roll back the Supreme Court ruling was defeated. Another referendum to overturn the ruling was to be rejected by the people in 2002.

But no law has been introduced to take account of the referendum results. Even today, there is no means of deciding how a 'real and substantial risk' to life is to be assessed, or by whom the decision should be made. Women who believe they meet the Supreme Court's criteria have no mechanism for vindicating their rights.

In 2010, a Wexford woman suffering from cancer, Michelle Harte - she has waived her anonymity - was told by doctors at Cork University Hospital that continuing her pregnancy would endanger her life.

However, the doctors' advice was rejected by the hospital's ethics committee, a majority of whom are not doctors, in apparent breach of the constitution. But Ms Harte had no remedy.

In the same year, in the case of another cancer patient, 'C', the European Court of Human Rights ruled that the lack of access to abortion in circumstances allowed under the constitution amounted to a denial of her rights.

In response, the Fine Gael-Labour programme for government last year promised not legislation, but the establishment of an 'expert group' to advise on what legislation was needed.

The group, chaired by Judge Sean Ryan, is scheduled to report by June. What its proposals will be and whether the Dail will act on them remains to be seen.

The track-record does not encourage confidence among women with crisis pregnancies.

Thus, the 'pro-life' element continues to hold sway - even when a majority of citizens have repeatedly signalled they'd favour a law allowing abortion at least in the limited circumstances of the 'X' case judgment. 'Cowardice' scarcely covers it. Not that we have reason to feel superior about any of it in our own jurisdiction.

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