Carol Coulter, Legal Affairs Correspondent, looks back over the cases which this Article has given rise to since it was introduced in 1983
A High Court case involving a pregnant teenager threatening suicide was cut short in 1994 only by the intervention of a psychiatrist. Had this case, reported by The Irish Times on Saturday, gone to a conclusion it would have been the third where a suicidal rape victim seeking an abortion ended up before the courts.
The case arose in May 1994 and concerned a 15-year-old girl pregnant as a result of alleged incest, and in the care of the Eastern Health Board. She and her mother wanted her to go to Britain for an abortion, but her father, from whom her mother was separated, took ward of court proceedings before Mr Justice Costello to prevent them from doing so.
The girl had taken an overdose and was in hospital, and there she had several weeks' intensive therapy from a psychiatrist. As a result of the therapy, she changed her mind about the abortion, and the case was then withdrawn. She later had the child. This would have been the fifth case brought under the 1983 amendment.
The first case was in 1986, where the Society for the Protection of the Unborn Child (SPUC)obtained an injunction preventing the Well Woman Clinic and Open Door Counselling from offering information to women that would encourage or facilitate an abortion. The injunction was upheld by the Supreme Court.
It was then appealed to the European Court of Human Rights in Strasbourg, which in 1992 found the State had breached the right of the clinics and their clients to receive and impart information about services legally available in another state. Although this decision was not binding on the Irish government, it took account of it in offering a further constitutional amendment in 1992, guaranteeing the right to information on abortion.
Meanwhile two similar cases were taken, this time against student unions that were publishing the addresses and phone numbers of abortion clinics in their student handbooks. The first was SPUC v Coogan in 1988, where an injunction was sought against UCD Students' Union. This was followed by SPUC v Grogan in 1989, where similar injunctions were sought against the Union of Students in Ireland, and TCD and UCD's students' unions.
The application was heard by Ms Justice Mella Carroll, who referred the case to the European Court of Justice, the EU court which, unlike the Strasbourg court, can make decisions that are binding on Ireland.
The ECJ referred it back to the Irish courts, and it ended up in the Supreme Court, which upheld the injunction. This prohibition on abortion information remained the law until 1992. Meanwhile, the question of the right to travel was about to be tested in the courts.
The first case where this happened was the now-famous X case, where a 14-year-old girl, pregnant as a result of rape and suicidal, was initially prevented by injunction from having an abortion in Britain.
This was later overturned by the Supreme Court, but only because a majority of the judges held that the threat of suicide was a threat to her life. Effectively, this meant an abortion in such circumstances would have been legal in the State.
Following this case, the right to travel was voted into the Constitution. However, this right was not absolute, and questions remained as to how it would be balanced with the unborn's right to life.
In 1997, another case arose involving a raped, pregnant and suicidal teenager who wanted an abortion but required the assistance of the State to travel.
This case, known as the C case, involved a 13-year-old traveller girl who was pregnant as a result of rape and in the care of the Eastern Health Board. She said she was suicidal and wanted an abortion, and the board obtained an order in the District Court allowing it to make all the necessary arrangements.
This was challenged by the girl's parents in the High Court. Mr Justice Geoghegan and found that, where the threat of suicide if she did not obtain an abortion amounted to a real and substantial risk to the girl's life, then abortion was permissible, and he allowed the health board its order.
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."
The Government's Green Paper on Abortion, published in 1999, found these remarks problematic. "The logical implication is that proceedings could be issued, for example under the Guardianship of Infants Act, in a case in which parents are in dispute with their minor daughter over whether she should travel for an abortion (or the parents themselves are in dispute on this issue)," it said.
This is precisely what happened in 1994, where the parents were in dispute over the issue of the girl travelling for an abortion. While their dispute was resolved and the case did not go to a decision, it is likely, in the light of Mr Justice Geoghegan's opinion, that if it did the father could have succeeded in preventing the girl from travelling.
This issue is dealt with in Section 4 (2) of the Human Life in Pregnancy Bill, on which the electorate will be voting on March 6th. This states that the Act will not prevent anyone from travelling to another state even if the purpose of the journey would be illegal in this one. However, given the amount of litigation already generated by Article 40.3.3, it is unlikely that this, or any other provision of this Act, will end litigation in this area.