fallibilist

"I may be wrong and you may be right, and by an effort, we may get nearer to the truth." (Karl Popper)

Thursday, May 03, 2007

Arguments in Miss D case

The High Court heard argument today in the Miss D case. Eoghan Fitzsimmons SC, for Miss D, argued that the State was entitled under the Healthcare Act 2004 to direct the HSE to permit the girl to travel. Mr Fitzsimons said the HSE wrote to gardaí on 26 April to ask them to prevent the girl from travelling. He said the HSE had no power under the Childcare Act to prevent the girl from travelling. In her affidavit, Miss D, who has been the subject of an interim care order since March due to the conduct of her mother, has said though she is deeply distressed at the thought of carrying her child to full term knowing it will die, she is not suicidal. Counsel also represent for the HSE, her mother, the Attorney General and the unborn. RTE radio suggested this evening that argument is unlikely to be completed tomorrow, given the number of parties represented. (The prospect then arises of an appeal to the Supreme Court.)

Mr Fitzsimons
said the HSE’s claim that under law she cannot travel would require Miss D to carry the baby full term only for it to die. He said that would subject her to degrading treatment. It would be "most inhumane" and that Miss D would suffer mental and physical trauma and great discomfort. He then "document[ed] medical studies which showed complications from anencephaly and a risk to the life of mothers in these circumstances." The last point is important. If it is shown that an abortion is necessary to protect Miss D's life, then the procedure would be lawful in Ireland, under the law as stated in the X case. Given the number of parties represented at the hearing (five), Mr Justice McKechnie's original plan to hear all argument today and give judgment early next week has fallen through. The case resumes tomorrow. It is possible that the Court might sit on Monday, if necessary, even though it is a Bank Holiday.

Update (Friday May 4th, 11.45 pm)
Today's Irish Times reported another argument made by Mr Fitzsimons on behalf of Miss D, namely that the unborn child in this case is not entitled to constitutional protection, because it has little or no viability, due to suffering from anencephaly. This argument, which it seems was conceded by State lawyers in a separate case brought by an Irish woman to the European Court of Human Rights. (That case was dismissed last July without reaching the substantive arguments regarding abortion.) If accepted by the court, it would add another ground - genetic abnormality rendering the unborn child non-viable - on which abortion would be lawful in Ireland.

It appears tonight, that the view of the HSE has changed. The Irish Times reports that:
"The Health Service Executive (HSE) today said it would not stand in the way of a teenage girl who wants to go to the United Kingdom for an abortion. Even though they moved quickly to stop the 17-year-old last month, lawyers told the High Court they were now prepared to let her travel under certain conditions. No indication was given if and when the teenager, known only as Miss D, will apply to leave. The change of heart came as a third day of hearings in the dispute drew to a close, with the case set to resume on Monday. The HSE will agree to let Miss D leave for the UK on the grounds she has consent from her mother and a judge."
Gerard Durkan SC, for the HSE, set out conditions on which the HSE would consent to allowing the girl to travel. (The extent to which the HSE has any power over her travelling anywhere is unclear.) Mr Durkan said that, if certain criteria were met, "the HSE's view would be that it would not be in her best interests to stop her". Mr Durkan added that "the HSE had been placed in an awkward situation and hindsight was a wonderful thing." It is reported that counsel for the State and for the unborn child are still to make submissions.

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