Another harrowing teenage pregnancy is shining a light on the grey area of abortion law, writes Paul CullenOnce again, the murky terrain of Irish abortion legislation is being tested in the courts in circumstances where a just solution is required quickly.
The "Miss D" case, which came before the High Court yesterday, bears a number of similarities to other cases which have been scrutinised by the courts over the past two decades.
In other ways, though, it poses fresh questions for the judiciary to grapple with, and there is undoubted urgency about the predicament of a teenager in care who wishes to terminate her pregnancy but is being prevented from doing so by her carers.
Just as in the X case back in 1992, which still defines legislation in this area, this latest test of our laws involves a pregnant teenager who wishes to travel outside Ireland for an abortion.
As in the C case of 1998, the teenager involved is in the care of the health authorities, who in this case have refused her permission to leave the State to obtain an abortion.
However, both the X case and the C case involved rape, whereas Miss D appeared in court yesterday with her boyfriend and did not seek a termination of her pregnancy until it was discovered that the foetus had major health problems.
Indeed, the proceedings were brought by her boyfriend, as Miss D herself is a minor in the care of the HSE.
In the X case, a 14-year-old girl, pregnant as a result of rape, was suicidal and wanted to travel to the UK for an abortion.
The Supreme Court decided, by a majority of three to two, that if there was a real and substantial risk to the life, as distinct from the health, of the mother, and that this real and substantial risk could be averted only by the termination of her pregnancy, a termination would be lawful.
It accepted that she had threatened to commit suicide if she had to carry the child to full term, and that this constituted a real and substantial risk to her life. The court lifted the injunction preventing her travelling.
In the current case, it would seem that Miss D is not making the case that to continue her pregnancy would result in a threat to her life.
While fuller evidence will be given to the court today, it does not appear at this stage that she is suicidal or that there is a "real and substantial" risk to her life. The foetus, in contrast, suffers from anencephaly, which means a large part of the brain is absent and, once born, its life expectancy is just three days.
In the C case, a raped and pregnant teenager sought an abortion in the UK. She was in the care of the health authorities, which were willing to facilitate her wishes, but her parents opposed her decision. Mr Justice Geoghegan, using the X case as precedent, ruled that she could travel, but on the basis that she was likely to take her own life if forced to continue the pregnancy.
However, he added: "The amended Constitution does not now confer a right to abortion outside of Ireland. It merely prevents injunctions against travelling for that purpose."
It would appear, therefore, that the C case cannot be used as a precedent for Miss D to travel, and this would seem to explain the different stance of the care authorities in the two cases.
Since these cases, the Government has published a Green Paper setting out the options for reform of the abortion laws, and an all-party Oireachtas committee has consulted widely on the issue. However, a proposal to further amend the Constitution was defeated in 2002 and the status quo survives.
The 1983 constitutional amendment, which recognised the right to life of the unborn, remains the dominant influence in this area of law, although the 1992 amendments safeguarding the rights to travel and information also come into play.
As a result, in circumstances where no political consensus has been agreed, it falls yet again to the courts to sort out the thorny issues which arise when a young woman wishes to terminate her pregnancy against the wishes of the State and/or her family.
++++++++++++++++++++++++++++++++++++++++++++++++++++++++
Disclaimer
No responsibility or liability shall attach itself to either myself or to the blogspot ‘Clerical Whispers’ for any or all of the articles placed here.
The placing of an article hereupon does not necessarily imply that I agree or accept the contents of the article as being necessarily factual in theology, dogma or otherwise.
Sotto Voce