View source for X Case

{{Short description|Irish court case permitting abortion in exceptional circumstances}}
{{Use dmy dates|date=March 2016}}
{{Infobox court case
|name               = Attorney General v X
|court              = [[Supreme Court of Ireland]]
|image              = Coat of arms of Ireland.svg
|imagesize          = 120px
|imagelink          =
|imagealt           =
|caption            = [[Coat of arms of Ireland]]
|full name          = The Attorney General v. X. and Others
|date decided       = 5 March 1992
|citations          = {{cite BAILII|litigants=Attorney General v X|link=Attorney General v. X|court=IESC|division=|year=1992|num=1|para=|eucase=|parallelcite=[1992] 1 IR 1}}
|transcripts        =
|judges             = [[Thomas Finlay (judge)|Thomas Finlay]], [[Niall McCarthy (judge)|Niall McCarthy]], [[Hugh O'Flaherty (judge)|Hugh O'Flaherty]], [[Séamus Egan (judge)|Séamus Egan]], [[Anthony J. Hederman|Anthony Hederman]]
|number of judges   = 5
|decision by        = Finlay
|concurring         = McCarthy, O'Flaherty, Egan
|dissenting         = Hederman
|concur/dissent     =
|prior actions      =
|appealed from      = ''Attorney General v X'' (High Court) 17 February 1992
|appealed to        =
|subsequent actions =
|related actions    =
|opinions           = Under Article 40.3.3° of the Constitution, termination of pregnancy is only permissible where there is a "real and substantial risk to the life of the mother", including a real and substantial risk of suicide. To require there to be a risk of immediate or inevitable death would not adequately vindicate the right to life of the mother.
|keywords           = {{hlist| [[Constitution of Ireland|Constitution]] | Personal Rights | [[Right to life|Right to Life]] | [[Prenatal development|Unborn]] | [[Freedom of movement|Right to Travel]] | [[Abortion]] | [[Suicide]] | [[Injunction]]}}
|italic title       = no
}}
'''''Attorney General v X''''' [1992] 1 IR 1 (more commonly known as the "'''X Case'''") was a judgment of the [[Supreme Court of Ireland|Irish Supreme Court]] 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 in December 1991 and became pregnant.<ref name=":0">{{Citation|title=Attorney General v X [1992] 1 IR 1|date=5 March 1992|url=http://www.bailii.org/ie/cases/IESC/1992/1.html|access-date=2017-10-28|archive-date=23 September 2015|archive-url=https://web.archive.org/web/20150923230118/http://www.bailii.org/ie/cases/IESC/1992/1.html|url-status=live}}</ref>  X told her mother of [[suicide|suicidal]] thoughts because of the unwanted pregnancy, and as abortion was illegal in the state, the family planned to travel abroad for an abortion. Before the planned abortion was carried out, the family asked the [[Garda Síochána]] (police) if DNA from the aborted foetus would be [[Admissible evidence|admissible as evidence]] in the courts, as the neighbour was denying responsibility. The garda asked the [[Attorney General of Ireland|Attorney General]]'s office for advice.  Attorney General [[Harry Whelehan]] sought an [[injunction]] under [[Eighth Amendment of the Constitution of Ireland|Article 40.3.3°]] of the [[Constitution of Ireland]] (which guaranteed "the right to life of the unborn") preventing her from having the procedure carried out. The injunction was granted by [[Declan Costello]] in the [[High Court (Ireland)|High Court]] in February 1992.<ref name=":0" />
The High Court injunction was appealed to the Supreme Court, which overturned it by a majority of four to one ([[Anthony J. Hederman|Anthony Hederman]] dissenting) in March 1992. The majority opinion ([[Chief Justice of Ireland|Chief Justice]] Thomas Finlay, Niall McCarthy, Séamus Egan and Hugh O'Flaherty) 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 [[miscarriage|miscarried]] shortly after the judgement. In 2013 Justice O'Flaherty, speaking after his retirement, said that the X Case was "peculiar to its own particular facts", since X miscarried and did not have an abortion, and this rendered the case [[Mootness|moot]] in Irish law.<ref name="oflaherty2013"/> According to 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."<ref name="oflaherty2013">{{cite web|title=X Case judge says ruling is 'moot' in current abortion debate|url=http://www.irishtimes.com/news/social-affairs/x-case-judge-says-ruling-is-moot-in-current-abortion-debate-1.1454699|publisher=Irish Times|date=6 July 2013|first=Ruadhan|last=Mac Cormaic|access-date=8 July 2013|archive-date=9 July 2013|archive-url=https://web.archive.org/web/20130709230727/http://www.irishtimes.com/news/social-affairs/x-case-judge-says-ruling-is-moot-in-current-abortion-debate-1.1454699|url-status=live}}</ref>
"The man in the X case", unnamed at the time to protect X's identity, was named in 2002 as Sean O'Brien (b.1949/50).<ref name="named2002">{{cite news |title=X-case man jailed for sex attack on girl (15) |url=https://www.irishtimes.com/news/x-case-man-jailed-for-sex-attack-on-girl-15-1.1052707 |access-date=31 August 2020 |newspaper=The Irish Times |date=6 Mar 2002 |language=en }}; {{cite news |title=Sentence on man at centre of X case "too lenient" |url=https://www.rte.ie/news/2002/0305/23766-xcase/ |access-date=31 August 2020 |work=RTÉ News |date=5 March 2002 |language=en |archive-date=25 May 2021 |archive-url=https://web.archive.org/web/20210525093522/https://www.rte.ie/news/2002/0305/23766-xcase/ |url-status=live }}</ref> In 1994 he was tried and convicted of [[Ages of consent in Europe#Ireland|defilement of a girl under 15]] and sentenced to 14 years in prison, reduced on appeal to four years.<ref name="named2002"/><ref name="unnamed2002"/> He was released in 1997 and obtained a [[Taxicabs by country#Ireland|taxi driver's licence]].<ref name="unnamed2002"/> In 2002 he was tried and convicted for the 1999 sexual assault and [[false imprisonment]] of a 15-year-old girl in his taxi; his three-and-a-half-year sentence was handed down the day before [[Twenty-fifth Amendment of the Constitution Bill 2001|another abortion referendum]].<ref name="named2002"/><ref name="unnamed2002">{{cite news|url=https://www.irishtimes.com/news/reasonable-compromise-beset-by-a-tide-of-controversy-1.1052966|title='Reasonable compromise' beset by a tide of controversy|quote=Then, in an ironic coincidence, the man who had started it all by impregnating the 14-year-old girl in the X case came before the courts again, again charged with a sexual assault on a young girl. He was sentenced to 3½ years in prison on Tuesday, the day before the poll.|access-date=2 August 2016|date=8 March 2002|newspaper=The Irish Times|archive-date=14 August 2016|archive-url=https://web.archive.org/web/20160814085228/https://www.irishtimes.com/news/reasonable-compromise-beset-by-a-tide-of-controversy-1.1052966|url-status=live}}; {{cite news|url=http://www.independent.ie/irish-news/xcase-rapist-guilty-of-sexually-assaulting-girl-15-26053614.html|title=X-case rapist guilty of sexually assaulting girl (15)|publisher=independent.ie|author=Tom Brady|date=2 March 2002|access-date=8 July 2013|archive-date=11 June 2015|archive-url=https://web.archive.org/web/20150611093459/http://www.independent.ie/irish-news/xcase-rapist-guilty-of-sexually-assaulting-girl-15-26053614.html|url-status=live}}</ref>
===Constitutional amendments===
In late 1983 the [[Eighth Amendment of the Constitution of Ireland|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]]'' (1973). The X case resulted in three proposed [[Amendments to the Constitution of Ireland|amendments to the Irish constitution]] on the issue of abortion, which were submitted to three referendums all held on 25 November 1992. These were the
*[[Twelfth Amendment of the Constitution Bill 1992|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 of the Constitution of Ireland|Thirteenth Amendment]]: specified that the prohibition on abortion would not limit the freedom of pregnant women to travel out of the state
*[[Fourteenth Amendment of the Constitution of Ireland|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. In 2002 an attempt to overturn the suicide grounds was again defeated, in the [[Twenty-fifth Amendment of the Constitution Bill 2002|Twenty-fifth Amendment]].
In 2018 the [[Thirty-sixth Amendment of the Constitution of Ireland]] provided a clear result, allowing abortions to be performed in Ireland, with the X Case frequently cited before the vote as a reason for amending the Constitution.
===European law===
{{main|Four Freedoms (European Union)}}
Ireland joined the [[European Economic Community|EEC]] in 1973 (now the [[European Union]]), and an express provision in the [[EU Treaty#Treaty on European Union|relevant treaties]] was and is the principle of free movement of people within the EU. In ''[[Costa v ENEL]]'' (1964), the [[European Court of Justice]] had established that European law had primacy over national laws. 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 abortion laws upon Ireland. The X Case showed that the Irish government understood that its laws against abortion extended much further, even to a denial of the basic European law right of the free movement of people within the EU.
===Political outcomes===
Whelehan was later appointed as [[president of the High Court]], but his office's stance on the X case, coupled with its lengthy delaying of the extradition from [[Northern Ireland]] of [[Brendan Smyth (priest)|Brendan Smyth]], on multiple charges [[paedophilia|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.<ref>{{Cite web|url=https://www.independent.ie/business/irish/harry-whelehan-26291726.html|title=Harry Whelehan|author=Charles Lysaght|date=20 May 2007|website=Irish Independent|url-access=subscription|access-date=13 March 2019|archive-date=18 November 2018|archive-url=https://web.archive.org/web/20181118231735/https://www.independent.ie/business/irish/harry-whelehan-26291726.html|url-status=live}}</ref>
There were regular calls, in subsequent decades, to "legislate for the X case", meaning to amend or replace the [[Offences Against the Person Act 1861]] to permit and regulate abortion within the limited circumstances allowed by the 1992 judgment. This was eventually effected by the [[Protection of Life During Pregnancy Act 2013]].<ref>{{cite news | url=http://www.rte.ie/news/2013/0712/462013-abortion-law/ | work=RTÉ News | title=Dáil passes Protection of Life During Pregnancy Bill | date=12 July 2013 | access-date=12 July 2013 | archive-date=12 November 2020 | archive-url=https://web.archive.org/web/20201112032927/http://www.rte.ie/news/2013/0712/462013-abortion-law/ | url-status=live }}</ref><ref>{{cite web |title=Protection of Life During Pregnancy Act 2013 |url=http://www.irishstatutebook.ie/eli/2013/act/35/enacted/en/html |website=electronic Irish Statute Book (eISB) |access-date=31 August 2020 |language=en |date=30 July 2013 |archive-date=4 March 2016 |archive-url=https://web.archive.org/web/20160304082506/http://www.irishstatutebook.ie/eli/2013/act/35/enacted/en/html |url-status=live }}</ref>
==TV interviews in 2010==
The ''Scannal'' programme by [[RTÉ]] 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.<ref>{{Cite web |url=http://www.rte.ie/tv/scannal/xcase.html |title=Scannal web notes, February 2010 |website=[[RTÉ.ie]] |access-date=18 June 2015 |archive-date=18 June 2015 |archive-url=https://web.archive.org/web/20150618121603/http://www.rte.ie/tv/scannal/xcase.html |url-status=live }}</ref><ref>{{Cite web |url=http://www.independent.ie/national-news/whelehan-regrets-hurt-caused-in-x-case-2072723.html |title=Sunday Independent comment on the programme |access-date=22 February 2010 |archive-date=28 February 2010 |archive-url=https://web.archive.org/web/20100228173858/http://www.independent.ie/national-news/whelehan-regrets-hurt-caused-in-x-case-2072723.html |url-status=live }}</ref> 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 Reynolds|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.
==Breach of ECHR==
In ''[[A, B and C v Ireland]]'' (2010), the [[European Court of Human Rights]] found that Ireland has breached the [[European Convention on Human Rights]] by failing to provide an accessible and effective procedure by which a woman can have established whether she qualifies for a legal abortion under Irish law, which led to the enactment of the [[Protection of Life During Pregnancy Act 2013]].
==References==
{{Reflist}}
==External links==
*[https://web.archive.org/web/20110303002500/http://www.timesonline.co.uk/tol/news/world/ireland/article7035006.ece Times article, 21 February 2010]
* {{webarchive |url=https://web.archive.org/web/20110304071813/http://www.irishtimes.com/focus/abortion/issues/chronology.htm |date=4 March 2011 |title=Irish Times chronology of abortion law 1861-2002 }}
{{Abortion in the Republic of Ireland}}
{{Abortion in Europe}}
{{Abortion}}
{{DEFAULTSORT:Attorney General V. X}}
[[Category:1992 in case law]]
[[Category:1992 in Irish law]]
[[Category:1992 in the Republic of Ireland]]
[[Category:Albert Reynolds]]
[[Category:Republic of Ireland abortion case law]]
[[Category:Irish rapists]]
[[Category:Political scandals in the Republic of Ireland]]
[[Category:Rape in the Republic of Ireland]]
[[Category:Republic of Ireland constitutional case law]]
[[Category:Supreme Court of Ireland cases]]
[[Category:Abortion in the Republic of Ireland]]
[[Category:Controversies in Ireland]]
[[Category:Religious controversies in Ireland]]