Government officials were concerned that, in the wake of the X case, women who left Ireland to access abortion services overseas could face penalties when they returned, newly released documents show.
A cabinet briefing document also raised concerns that any injunction preventing women from travelling from Ireland to another EU country for a termination could breach the recently ratified Maastricht Treaty and its guarantees on freedom of movement within the bloc.
Ahead of the 1992 referendum, there was a national discussion about abortion. The referendum was prompted by the X case, in which a 14-year-old girl was raped and became pregnant. In March 1992, after a contentious legal battle, the Supreme Court ruled that the girl could travel to get a termination in the UK as there was a threat to her life from suicide.
Prior to the referendum in November 1992, in a briefing note to cabinet, one department of taoiseach file warned that there were differing interpretations over the issue of the right to travel.
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Some ministers wanted the consequences of the X case dealt with by legislation, but others felt that it could only be addressed by a referendum.
There was also disagreement over how the Maastricht Treaty might impact the situation.
“Protocol No 17 to the Maastricht Treaty provides that nothing in the Treaty or in the European Community Treaties shall affect the application in Ireland of Article 40.3.3 of the Constitution,” one note from October 1992 advised.
“The main purpose of the Protocol was to ensure that abortion would not become legalised in the State by virtue of EC law. Freedom of travel to other EC States for an abortion was not envisaged as being affected.”
However, the cabinet was advised that this was not the legal case in the wake of the X case.
“The case decided that while an injunction will not be given to restrain a woman from travelling abroad to obtain an abortion where there is a real and substantial risk to her life, such an injunction can be given to restrain travel abroad to obtain an abortion where there is no such risk.”
The cabinet was warned that the issue of travel had already arisen as two Irish partners had attempted to stop women from travelling overseas for terminations.
The files detailed confusion over how the Maastricht Treaty could be interpreted regarding freedom of movement.
“Because of the fundamental importance of freedom of movement in the [European Community] it is likely that the European Court, if it had to deal with the issue, would decide that the Protocol did not envisage Article 40.3.3 having extra-territorial effect and that injunctions against leaving the country for another EC member state could not be issued consistently with EC law.”
A cabinet sub-committee recommended to the government that the Constitution be amended to ensure that freedom of travel between Ireland and another EC member state should not be limited.
“An injunction against travel for an unlawful abortion (ie one in which there is not a real and substantial risk to the life of the mother) would no longer be permissible.”
However, the briefing note also raised concerns that females who travelled abroad for terminations might be “penalised” upon their return to Ireland.
“A possibility which seems remote that is discussed in the Justice paper and the Attorney-General’s paper is that the woman might still be ordered by the court not to have an abortion or might be penalised on her return from having an abortion abroad,” the file noted.
On November 25th 1992, the Irish public voted in favour of two amendments: the freedom to travel outside the State for an abortion and the freedom to obtain or make available information on abortion services outside the State, subject to conditions. Voters failed to back an amendment which would have rolled back the X case judgment in order to remove suicide as a ground for abortion in Ireland.
Abortion legislation in Ireland became more liberal in the intervening years, eventually being legalised in 2018. Women can have an abortion for any reason up to 12 weeks of pregnancy. After 12 weeks, an abortion is only allowed in exceptional circumstances.
