Ирландиядағы жүктілікті тоқтатуға рұқсат берген сот ісі

Irish court case permitting abortion in exceptional circumstances

Attorney General v X, [1992] IESC 1; [1992] 1 IR 1, (more commonly known as the "X Case") was a landmark Irish Supreme Court case which established the right of Irish women to an abortion if a pregnant woman's life was at risk because of pregnancy, including the risk of suicide.

The case involved a fourteen year old girl (named only as "X" in the courts and the media to protect her identity) who was a ward of the state and who had been the victim of a statutory rape by a neighbour in December 1991 and became pregnant. X told her mother of suicidal thoughts because of the unwanted pregnancy, and as abortion was illegal in the state, the family planned to travel abroad for an abortion. Before the planned abortion was carried out, the family asked the Garda Síochána (police) if DNA from the aborted foetus would be admissible as evidence in the courts, as the neighbour was denying responsibility. The garda asked the Attorney General's office for advice. Attorney General Harry Whelehan, sought an injunction under Article 40.3.3 of the Constitution of Ireland (which guaranteed "the right to life of the unborn") preventing her from having the procedure carried out. The injunction was granted by Declan Costello in the High Court in February 1992. "The man in the X case", unnamed at the time to protect X's identity, was named in 2002 as Sean O'Brien (b.1949/50). In 1994 he was tried and convicted of defilement of a girl under 15 and sentenced to 14 years in prison, reduced on appeal to four years.

Ireland joined the EEC in 1973 (now the European Union), and an express provision in the relevant treaties was and is the principle of free movement of people within the EU. As far back as 1964 the Costa v ENEL case had established that European law had primacy over national laws. The 1992 Maastricht Treaty allowed Ireland an exemption in respect of its laws on abortion. At the time of the Maastricht negotiations, it was thought that this exemption meant that the EU could never impose abortion laws upon Ireland. The X case showed that the Irish government understood that its laws against abortion extended much further, even to a denial of the basic European law right of the free movement of people within the EU. In the 2010 case of A, B and C v Ireland the European Court of Human Rights found that Ireland has breached the European Convention on Human Rights by failing to provide an accessible and effective procedure by which a woman can have established whether she qualifies for a legal abortion under current Irish law, which led to the passing of the Protection of Life During Pregnancy Act 2013.

Whelehan was later appointed a senior judge, but his office's stance on the X case, coupled with its lengthy delaying of the extradition from Northern Ireland of Brendan Smyth, on multiple charges of abuses against children, was met with severe and widespread criticism. The issue split and eventually brought down the coalition government of the time. Under political pressure, Whelehan served as a High Court judge for just six days. There were regular calls, in subsequent decades, to "legislate for the X case", meaning to amend or replace the Offences Against the Person Act 1861 to permit and regulate abortion within the limited circumstances allowed by the 1992 judgment. This was eventually effected by the Protection of Life During Pregnancy Act 2013.

The Scannal programme by RTÉ was broadcast on 22 February 2010, suggesting that the underlying divisions of opinion still exist, and that the facts of the case were too difficult and unique for a simple resolution at the time. Some quotations appeared on RTÉ's website:
Harry Whelehan said that: "The problem was stark. There was an unborn child with a constitutional right to life. There was nobody to advocate the right of that child to be born other than the Attorney General". "The State was going to force a child to bear a child for her rapist" said Fintan O'Toole, journalist. "You can't use the constitution for certain issues and not others. It is black and white – Harry Whelehan implemented the constitution and I believe he did the right thing." – Cathal Mac Coille, RTÉ journalist. "I remember Albert saying 'we're up to our necks in it now Diggy, they're all out to get us', and he was so right" – Seán Duignan, government press secretary in 1992.