An interim care order for Miss D, who is four months pregnant, does not prevent her travelling outside this jurisdiction for an abortion and the Health Service Executive has no power to prevent her doing so, the State has told the High Court.
If the HSE had asked gardaí to stop her travelling for a termination, it had no power to do so, either by statute or under the care order, the State also said.
In its statement of opposition to Miss D's application for an order restraining her travelling to Britain for an abortion, the State said it "awaited proof" of any "decision" of the HSE to refuse to let her travel for a termination unless she presented as "a suicide risk". The State also said Miss D was not entitled to the reliefs claimed by her in her action "save as follows" from what the State said in its statement.
The statement of opposition was read yesterday by Eoghan Fitzsimons SC, for Miss D, during his opening of her proceedings aimed at stopping the HSE from preventing her travelling to Britain for an abortion.
Commenting on the statement, Mr Fitzsimons said the State appeared to be suggesting there was no HSE decision to be challenged.
He said his side had responded to a situation where Miss D was told she was not permitted to leave and she was challenging that. He agreed with the State position that the HSE had no power to stop his client travelling. Given the State position, he asked: "Why are we here?"
The State and Minister for Health had power under section 10 of the Health Act to direct the HSE to do anything, including to allow Miss D to travel abroad, Mr Fitzsimons said. Why then was the State coming into court and saying that the HSE was wrong and why was it not telling the HSE to allow the girl travel for an abortion?
Miss D had to face five sets of legal teams and to "endure this process" which seemed "entirely unnecessary" given the line being taken by the State, Mr Fitzsimons added.
Donal O'Donnell SC, for the State, objected to this "highly regrettable" development, arguing that the Health Act had not been pleaded in the case.
Following legal exchanges, Mr Justice Liam McKechnie indicated that, if he took a view that, under the Child Care Act 1991, the HSE had no power to seek to restrain Miss D from travelling outside the jurisdiction, he might consider it undesirable to address other constitutional issues raised.
Mr Fitzsimons said his client was anxious that all the issues be addressed.