The 13-year-old pregnant rape victim is expected to leave the care of the Eastern Health Board today in a development which could facilitate her having an abortion. The Eastern Health Board has been advised that, while the girl is in its care, it cannot allow her to travel to Britain for an abortion, The Irish Times has learned.
The EHB appeared before the Dublin District Court yesterday in in camera proceedings relating to its interim care order. No details were available last night about the change in the girl's legal status.
Despite the passage of the right-to-travel referendum following the X case, the board has been informed by its legal advisers that, as a State agency, it cannot assist in the procurement of an abortion.
As things stand, the girl rape victim, a minor who is in the care of the EHB, would have to be accompanied to Britain by representatives of the board to have an abortion. The board believes this course of action would be illegal.
As the Dail was gripped yesterday by fear of another potential abortion controversy, the Minister for Health and Children, Mr Cowen, announced that the Government planned to hold a new abortion referendum. He did not indicate, however, whether the intention of the referendum would be to roll back the judgment in the X case or to legislate for its full implications.
After four divisive referendums on the issue in 14 years, Mr Cowen told a silent Dail yesterday that two options were being considered by the Government: to hold a referendum with the heads of an abortion Bill published alongside it; or to use Article 27 of the Constitution to refer a full Bill to the people in a referendum petition because it contains a proposal of "such national importance".
"This is an issue on which the people must have their say, on which they will be the final arbiters," he said.
He said if legislation was regarded as the route by which the matter would be decided, "we will invoke the Article 27 procedure in which case the legislation will have to be put to the people by way of a referendum. That is the view of the Government."
Cautioning that certain questions addressed to him about the 13-year-old girl were based on an assumption that a definitive decision had been made in relation to the pregnancy, he stressed that "the right to travel for all citizens is not required to be upheld by any authority. It is a constitutional right available to all as a result of the passing of the [last] referendum."
Mr Cowen said he would report back to the Cabinet in about two weeks on "the political direction" to be taken on the Government's Green Paper on the abortion issue. He would invite submissions from interested parties. The Green Paper would then be referred to the All-Party Constitutional Review Group.
Meanwhile, with acknowledged divisions among Ministers about the action to be taken on abortion, some members want the referendum to roll back the Supreme Court judgment in the X case which permits limited abortion where there is a real and substantial risk to the life of the mother, including the risk of suicide.
They believe that a constitutional/legislative mechanism should be used to distinguish between a threat to the life, as distinct from the health, of the mother.
The Article 27 provision, which has never been used, would prevent any amendment of the Constitution. It could only be used, in present circumstances, if the Government wished to legislate for the X case.
A majority of members of the Seanad and not less than one-third of the members of the Dail could petition the President under this mechanism to allow a referendum petition "on the ground that the Bill contains a proposal of such national importance that the will of the people thereon ought to be ascertained".
The President, Mrs McAleese, would have complete discretion, following consultation with the Council of State, on the decision to permit a referendum petition. The question put to the people would be "do you approve of the Bill" and, under Article 47 (2)(1), the Bill, would require a majority of not less than one-third of the votes cast to defeat it.
