How X case was exposed despite authorities' wishes
Opinion:Had the tragic death of Savita Halappanavar not been brought to light by The Irish Times it is unlikely that we would have had such a swift government response to the report of the expert group on abortion.
More than 20 years on, there is to be legislation to address the ambiguities inherited from the X case judgment of 1992.
It is perhaps worth recalling the background to that case and indeed the role of The Irish Times in bringing it to public knowledge against the wishes of the government and legal authorities of the day.
In the early 1980s Fine Gael and Fianna Fáil vied with each other to assert their abhorrence of abortion. There was, of course, no public demand for its introduction. This was posturing to gain electoral advantage. The result was the passing of the September 1983 referendum, purporting to accord equal rights for the mother and the unborn child. It is doubtful if anybody expected it to have any implications in practice.
England provided the answer to the abortion question in Ireland.
But some constitutional experts had warned that the ambiguities of the 1983 amendment would prove to be a legal time bomb. In early 1992 they were proven right. An outraged suburban family reported to gardaí that their 14-year-old daughter had been violated by a neighbour and was pregnant. They intended to bring her to the UK for an abortion and wanted to know if DNA taken from the foetus could be used here as evidence.
The detective inspector assigned to the case consulted the director of public prosecutions, Eamonn Barnes. He, in turn, referred the matter to the attorney general, Harry Whelehan.
Within 24 hours, the girl’s parents were told by gardaí that the attorney general intended to apply to the High Court for an injunction to prevent her from leaving the jurisdiction. He believed the 1983 amendment required the State to do so in order to protect the life of the unborn child. When the attorney’s application was put before the president of the High Court, Mr Justice Declan Costello, he determined that proceedings should be in camera. The identity of the family was concealed. The girl was referred to as “Miss X”.
Any public dissemination of the details of the case would be a contempt of court. Indeed, the mere publicising of the fact of the attorney’s application would itself be a contempt. The matter was going to be disposed of in secret. The parents now found themselves being solemnly warned by gardaí that their daughter could not travel. And if they publicised the matter they would be in contempt.
But while Costello’s in camera order meant that court reporters had no access to the proceedings, it could not prevent information from travelling around the Four Courts and into the wider legal community. Details started to reach Irish Times journalists. Within 24 hours, news editor Niall Kiely and legal affairs specialist Carol Coulter had established the essential facts. Moreover, it emerged that another staff journalist had an indirect line of communication to the parents. The newspaper now faced a real dilemma. If it were to publish what it knew it would be in contempt of the in camera order.