Miss D v HSE, District Judge, Attorney General and Ireland and

The Irish Times reports that a 17 year-old girl has brought judicial review proceedings challenging a decision preventing her from travelling to England, where she intends to have an abortion. Counsel for the girl (who the court directed could be referred to as Miss D), told the court the case was very urgent. The "foetus suffers from anencephaly", which is "a head disorder resulting from a neural tube defect resulting in the absence of a major portion of the brain, skull and scalp." The child, when born, is not expected to live for more than three days. It appears that the HSE secured a care order over the child, and then decided that she should not be allowed leave the jurisdiction for the purpose of an abortion. The case was adjourned until today.

According to today's Irish Examiner, the case being made is that the travel restriction imposed by the HSE violates Miss D's constitutional rights to personal autonomy, bodily integrity and travel. The latter seems the most relevant ground. The 'right to travel' referred to was inserted into the Constitution on December 23rd 1992 by the Thirteenth Amendment, in the aftermath if Attorney General v X [1992] 1 I.R. 1, the X case. Article 40.3 provides as follows:

"1° The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.
2° The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.
3° The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.
This subsection shall not limit freedom to travel between the State and another state.
This subsection shall not limit freedom to obtain or make available, in the State, subject to such conditions as may be laid down by law, information relating to services lawfully available in another state." (emphasis added to text of Thirteenth Amendment)

The so-called travel amendment was interpreted a decade ago in A. and B. v Eastern Health Board [1998] 1 I.L.R.M. 460. Like the X case, this involved a 13 year-old girl, C., who became pregnant as a result of rape. The District Court granted a temporary care order and then, on the application of the Health Board and having heard evidence from a psychiatrist that C would kill herself if she had the child, ordered that C be permitted travel outside the jurisdiction, in order to obtain an abortion. The child's parents challenged the latter order. This is what the High Court (Geoghegan J) had to say, as regards the application of the Thirteenth Amendment:

"25. This amendment is framed in negative terms and must, in my view, be interpreted in the historical context in which it was inserted. There was, I think, a widespread feeling in the country that a repetition of The Attorney General v. X [1992] 1 I.R. 1, should not occur in that nobody should be injuncted from actually travelling out of the country for the purpose of an abortion. It must be remembered that three out of the five judges of the Supreme Court took the view that in an appropriate case a travel injunction could be granted. It was in that context, therefore that the amendment was made and I do not think it was ever intended to give some new substantial right. Rather, it was intended to prevent injunctions against travel or having an abortion abroad. A court of law, in considering the welfare of an Irish child in Ireland and considering whether on health grounds a termination of pregnancy was necessary, must, I believe, be confined to considering the grounds for termination which would be lawful under the Irish Constitution and cannot make a direction authorising travel to another jurisdiction for a different kind of abortion. The amended Constitution does not now confer a right to abortion outside of Ireland. It merely prevents injunctions against travelling for that purpose. I think that the view which I have taken conforms with the view of the Supreme Court in the Article 26 reference relating to the Information (Termination of Pregnancies) Bill, 1995 [1995] 1 I.R. 1 and as expressed in the judgment of the Court at p. 47. The Court says the following:-
“As already stated, the effect of the decision of this Court and the judgments of the majority of the Court in The Attorney General v. X [1992] 1 I.R. 1 was that where there is a real and substantial risk to the life, as distinct from the health, of the mother and that risk can only be avoided by the termination of the mother’s pregnancy, then such termination is permissible and not unlawful having regard to the provisions of Article 40.3.3° of the Constitution. The position as therein set forth is unaltered by either the provisions of the Thirteenth or Fourteenth Amendment to the Constitution or of the Bill.”"

Geoghegan J thus denied the relief sought by the parents, only because the abortion would be permissible under the Irish Constitution. He made clear, however, that he "would have taken a different view and would have granted the order if contrary to my view on a true analysis the effect of the order is to authorise an abortion outside Ireland of a kind which would not be in conformity with the Irish Constitution."

The High Court usually follows its own precedents, so, on the assumption that the judge hearing today's case view A and B as controlling his decision, then it would seem that counsel for Miss D will have to argue that the Constitution permits abortion in the circumstances of her case. The X and A and B cases both involved girls presenting as suicide risks. It was held in X that abortion was permissible under Article 40.3.3 where the life, as opposed to the health, of the mother is threatened by the pregnancy being allowed to continue. There is no such evidence (from what I can gather so far) in the present case. If an appeal were to be brought to the Supreme Court (of which Geoghegan J is incidentally now a member), then the decision in A and B, interpreting the Constitution as only permitting a court to order that a child be allowed to travel for the purpose of an abortion where that same abortion would be lawful in this State too, would have less certain application. The Supreme Court would have the option of saying that A and B was wrongly decided and that Article 40.3.3 should not be read in that way. It is interesting that, even if A and B were overruled in the present case, the result in each case would be the same: Let her go to England. In A and B the court refused to quash an order that the girl be allowed travel abroad for an abortion; in Miss D, the Supreme Court (if an appeal is brought and if it were to so decide) would quash an order refusing to allow the girl to travel abroad for a jurisdiction.

Update 1 (12.57 pm):
Dearbhail McDonald, legal affairs correspondent with The Irish Independent, notes that last year the European Court of Human Rights rejected an Irish woman's claim that her human rights were violated due to the non-availability in Ireland of abortion in circumstances of foetal abnormality, on the grounds that the issue had not been brought before the Irish courts.

Dr Muiris Houston writes in today's Irish Times that:

"Anencephaly, meaning the absence of the greater part of the brain and of the skull bones, is an example of a neural tube defect (NTD). Other NTDs include spina bifida, where part of the spinal cord protrudes through an unfused vertebrae and cephalocoele, the protrusion of part of the brain through a bony defect in the skull. Open neural tube defects occur in two to five babies per 1,000 pregnancies. ... The neural tube, which develops into the brain and spinal cord, is usually completely formed and closed by the end of the third week of intrauterine life.Neural tube defects are the commonest form of congenital central nervous system malformations. In anencephaly, the most severe form of NTD, there are no cerebral hemispheres and no development of the vault in which the brain resides. The condition is uniformly fatal; many children with the condition are stillborn, but if born alive the baby usually dies within hours."

Update 2 (1.25 pm)
The High Court (McKechnie J) has granted Miss D leave to bring judicial review proceedings. The case will be heard on Thursday. Counsel for the Attorney General appears to have submitted that the HSE does not have the legal power to direct Gardai to restrain a person who is the subject of an interim care order.