A High Court judge will rule tomorrow afternoon on whether a 17-year-old pregnant girl can travel to the UK for an abortion.
Miss D is in her 18th week of pregnancy with a baby suffering from anencephaly, a condition where most of its brain is missing and where it cannot survive more than three days after birth.
Yesterday, after hearing three days of submissions from five sets of lawyers in two sets of proceedings arising from the girl's wish to travel for an abortion, Mr Justice Liam McKechnie said he could not give an immediate decision as requested by the HSE.
Gerard Durcan SC, for the HSE, had suggested the judge could give his decision in outline form and give his reasons later as there was an "obvious stress" to Miss D and her right to travel had to be clarified. It was "hugely important" that this be resolved one way or the other, he urged.
When submissions concluded just before 5pm, the judge said he would give his decision at 2pm on Wednesday. The case had implications and he was extremely conscious of these, he said.
Miss D was in court for most of the day yesterday with her mother and boyfriend but had left before the case concluded. At one point, she read pages of signatures collected by supporters backing her right to travel.
The judge has to consider two sets of judicial review proceedings. He has to decide whether Miss D is entitled to an order restraining the HSE from preventing her from travelling for an abortion. The second set of proceedings involves a challege by the HSE to a decision by District Court Judge Flann Brennan, made last Saturday at a private hearing, refusing to grant the HSE an order allowing the girl to travel to the UK.
The High Court was told yesterday that Judge Brennan refused to grant the order on grounds it would amount to a failure by him to vindicate the right to life of the unborn and would be improper and unlawful.
The HSE, which has argued that a District Court order is necessary before the girl may travel, while all the other parties contend no such court order is necessary, contends the district judge was wrong to refuse that order.
Lawyers for the Attorney General have argued there is no law under which the girl may be prevented from travelling to the UK and that the fact the girl is the subject of an interim care order does not permit her right to travel to be impinged upon.
Counsel for the unborn has also accepted there is no law restraining the girl from travelling. However, James Connolly SC argued that no State agency may facilitate that travel, whether by funding or otherwise, because of the constitutional requirement to vindicate the right to life of the unborn.
Mr Durcan outlined the weekend developments in Miss D's case. He said an application had been made during in camera proceedings by the HSE for a direction under the Child Care Act on whether it would be lawful for Miss D to travel to the UK for a termination.
Mr Justice McKechnie ruled that because the application did not touch on the care order in the girl's case, a summary of the arguments and the decision could be given to the High Court of the District Court proceedings.
Mr Durcan said the HSE had put to the District Court that it was not in the best interests of Miss D to stop her travelling to the UK for a termination. The State argued an order from the District Court was unnecessary as the girl's travel was lawful.
Mr Durcan said the district judge had taken the application at short notice and was considerably influenced by remarks in the judgment of Mr Justice Geoghegan in the C case.
In the C case, while finding the court could not grant an injunction preventing a suicidal teenage rape victim travelling for an abortion, Mr Justice Geoghegan remarked that the courts should not act as some form of licensing authority for abortions.
On Sunday, the HSE went to the High Court and secured leave to seek a judicial review aimed at quashing the district judge's refusal to make the order sought. All parties to the case have agreed the District Court was not entitled to refuse such an order.
Mr Durcan said the constitutional provision protecting the right to life of the unborn must be read together with the right to travel amendment to the Constitution.
