One of the Supreme Court judges who decided the landmark X case on abortion has said the judgment is "moot" and may not be binding on Government.
Hugh O’Flaherty said he stood over the decision of the five-judge court in 1992 and stressed that the Government was obliged to legislate to give effect to the 1983 amendment to the constitution, which expressly equated the right to life of the mother and the unborn.
But he said the X case itself was moot because the 14-year-old girl at the centre of the drama miscarried and did not have an abortion. The case was “peculiar to its own particular facts”, he said.
Judge O'Flaherty sided with the majority in a 4-1 decision to overturn a High Court ruling and allow Miss X, who was pregnant and suicidal after being raped by a neighbour, to travel to Britain for an abortion. The case established the right to an abortion in Ireland if the pregnant woman's life was at risk because of pregnancy, including the risk of suicide.
"They're all talking about the X case, but in effect the X case is moot because the girl didn't have an abortion. She had a miscarriage," he told The Irish Times. "To say the X case is some giant talisman hanging over us is wrong."
Defiant backbench TDs
The retired judge's comments come amid tensions within Fine Gael after four backbench TDs defied Taoiseach Enda Kenny to vote against the Protection of Life during Pregnancy Bill, which is designed to clarify the law on abortion. The Bill returns to the Dáil next Wednesday for two more votes.
The X case decision led to four referendums and remains controversial two decades on. In December 2010, the European Court of Human Rights found that Ireland should give legal standing to the judgment.
Asked about the court’s reasoning on suicide, Judge O’Flaherty replied: “The stark situation is, if someone who is pregnant commits suicide, you lose the mother and the child.”
He said the X case was “one of the most difficult” he faced as a judge. However, he said the did not necessarily close the debate on abortion.
"If the Supreme Court struck down an act as unconstitutional, that would be the end of that debate. There would be no two ways about it. But when it gives an opinion on a case, [and] that doesn't work out as submitted to it, then it's really an obiter dictum." This means an incidental but not binding remark or opinion by a judge in deciding a case.
Suicide clause
Asked if he thought the Government was obliged to include the suicide clause, he replied that this was not necessarily the case "for the reason that the case wasn't as binding as a different type of case would have been".
Judge O’Flaherty said he agreed with his Supreme Court colleague, the late Niall McCarthy, who described as “inexcusable” the failure to legislate to give effect to the amendment approved by referendum in 1983. That amendment, article 40.3.3, obliged the State to guarantee “in its laws” the equal right to life of the mother and the unborn.
“It’s the constitution that says they should be legislating,” said Judge O’Flaherty. “Niall McCarthy was excoriating on . . . failure to legislate. The rest of us held back, but he was right. That is what is being given effect to, not the X case.”
The X case came before the Supreme Court in February 1992 after the High Court had, at the request of the attorney general, granted an injunction to prevent the girl travelling to Britain for an abortion.
The Supreme Court overturned that ruling, with a majority comprising chief justice Tom Finlay, Niall McCarthy, Hugh O'Flaherty and Séamus Egan. The sole dissenter was Anthony Hederman.
The girl was later reported to have had a spontaneous miscarriage in an English hospital.
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