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.
The newspaper’s legal advisers gave the clearest advice. It would not be open to us to plead inadvertence or error. The only possible defence would be to invoke the public interest. That would be to tell the president of the High Court that the newspaper was putting its interpretation of the common good above his. The range of possible penalties could run from imprisoning the editor to a massive fine or even to an order for closure for a time.
None of these was an attractive prospect for a newspaper getting back on its feet after the deep recession of the late 1980s. But the chairman of the Irish Times Trust, Major Tom McDowell, and the other members whom he consulted stepped up to the plate. If the editor was satisfied that the facts were correct, he should publish. If there were to be a citation for contempt it would be resisted all the way to the Supreme Court.
The news report was published the following day. To the surprise, not to say relief, of The Irish Times there was no reaction from the court. Meanwhile other news media started to pick up the story. But two days later when Declan Costello granted the application to prohibit the girl from travelling, the lid blew off.
The international news media seized on the story. There were angry demonstrations in Dublin. Harry Whelehan made a plea for the “publicity and public controversy” to cease. The president, Mary Robinson, issued a statement on the “very deep crisis within ourselves”. “I hope we have the courage, which we have not always had, to face up to and to look squarely and to say ‘this is a problem we have got to resolve’.”
Costello’s decision was quickly overturned on appeal. The Supreme Court determined that a threat to the life of the mother, including a threat of suicide, could be sufficient grounds for abortion. Miss X was free to travel.
Over the 20 years since the X case, the debate on abortion in Ireland has gone to and fro. Successive governments shirked Mary Robinson’s exhortation to square up to the problem.
But at least there has been a debate. Had the State had its way in 1992 no one would have heard of Miss X. Today, in her mid-30s, she lives a normal and private life. We owe her and her family a debt for their courage. And public discourse owes something to the members of the Irish Times Trust, nearly all now deceased, who knew where the newspaper’s duty lay.
* Conor Brady was editor of The Irish Times from 1986 to 2002