AG had ‘no choice’ but to seek injunction against X case rape victim

The attorney general who prevented a 14-year-old rape victim from travelling to the UK for an abortion in 1992 subsequently advised the government that accepting the Maastricht Treaty would result in no interventions of that kind in future.

Papers released by the Office of the Attorney General under the 20-30 year rule include a strong defence by Harry Whelehan of his decision to seek the injunction against the teenager. He argued that he had “no choice in the circumstances” other than to intervene.

In what became known as the X case, the teenage girl, who was the victim of a rape by a neighbour, became pregnant in late 1991. The family planned to travel abroad for an abortion in early 1992. However, when the family inquired about taking a DNA sample from the foetus for the purposes of a prosecution against the rapist, Mr Whelehan intervened, citing Article 40.3.3 (the Eighth Amendment) of the Constitution, which guaranteed the right to life of the unborn child.

The injunction sought by the attorney general was granted by the High Court, but was subsequently overturned by the Supreme Court in a landmark decision in March 1992. It decided that the teenager’s threat of suicide constituted a “real and substantial risk” to the life of the mother and, under those circumstances, she could have an abortion. In the event, Miss X had a miscarriage in an English hospital.

The judgment, however, did not make it allowable for women to travel abroad for abortion services in the absence of a “real and substantial risk” to the life of the mother.

The injunction sought by Mr Whelehan, and the subsequent court decisions, led to widespread public controversy. The attorney general, in particular, faced considerable criticism for his intervention in the case.

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The X case occurred just as the final negotiations for the Maastricht Treaty were being concluded. Ireland had earlier obtained a protocol to the treaty, Protocol 17, which enshrined the constitutional ban on abortion. Following the X case the government tried to reopen the treaty, but other member states refused to allow it. In the event, a “solemn declaration” was allowed which had the effect of qualifying Protocol 17. The declaration stated that the protocol “would not limit freedom to travel between member states” or limit the availability in Ireland of information relating to services lawfully available in member states.

In other words, no woman would be prevented from travelling abroad for abortion services, or from receiving information on such services.

However, the declaration did not have the same legal status as the treaty or its protocols.

In advance of the referendum on the Maastricht Treaty in June 1992, Mr Whelehan was asked by the government to give his advice on the protocol and declaration. In a confidential memo, he stated that if Maastricht was adopted he would regard it as a “decision by the Irish people to amend Article 40.3.3° of the Constitution so as to permit women to travel to other countries of the European Community for the purpose of availing themselves of a service lawfully available there, viz obtaining an abortion”.

“I reach this conclusion because the government have made it clear to the people that the legal effect of Protocol No 17 (reiterated in the Solemn Declaration) is to reverse the decision of the Supreme Court that Article 40.3.3° prevents a woman from travelling abroad for an abortion unless there is a real and substantial risk to her life...

“I would regard a decision of the people which qualified that right in the manner just described as binding on me, and I would not regard myself as having an obligation to bring to the notice of the courts a proposed journey abroad for the purpose of obtaining an abortion.”

Former attorney general Harry Whelehan. Photograph: Frank Miller

Elsewhere in the document (file 2022/31/24), Mr Whelehan said if Maastricht was accepted he would not be obliged to intervene in the way he was bound to do in the X case.

Explaining the rationale behind his intervention, he said: “It was not a decision of the government but a decision of the AG in his role as guardian of the Constitution to provide representation on behalf of the unborn child before the courts. In the case, the unborn child was entitled to have every argument made in pursuance of its right to life, guaranteed under the Constitution.”

At least some of the advice in the file came as a response from a letter sent by the chair of the Council for the Status of Women, Frances Fitzgerald – now a Fine Gael MEP – to the government.

In the letter, she asked for the protocol to the Maastricht Treaty enshrining the ban on abortion in Ireland to be deleted and challenged the government on how it could prevent further injunctions against women leaving the country.

The Maastricht Treaty was passed with 69 per cent support. However, a further referendum was held late in 1992 following pressure from both pro-choice and anti-abortion groups. An amendment to exclude the threat of suicide as a grounds for an abortion was rejected, while two further amendments to allow the right to travel, and the right to information, were both passed.