Mary Carolan The Irish Times Thursday May 10th.
A pregnant 17-year-old girl in care, whose baby has a fatal condition meaning it cannot survive after birth, is free to travel to Britain for an abortion, the High Court has ruled.
Mr Justice Liam McKechnie said yesterday he "firmly and unequivocally" held the view that there was no law or constitutional impediment preventing Miss D travelling for the purpose of terminating her pregnancy. He also ruled the right to life of the unborn cannot interfere with the right to travel for an abortion.
Given those findings, he said it was not necessary to address the issue of whether the foetus , given its medical condition and prognosis, is an "unborn" within the meaning of the right to life provisions of the Constitution. This case, he stressed, was about the right to travel, not about abortion or a decision to terminate the existence of a healthy foetus or a disabled child. His decision had no impact on children born with profound disabilities who, in any civilised society, "must be cherished and loved".
The judge was delivering his reserved judgment on proceedings arising after Miss D, who is 18 weeks pregnant and from Leinster, told a HSE social worker on April 26th last of her intention to travel to Britain for an abortion. She made that decision after learning, from an ultrasound scan on April 23rd, that her baby has anencephaly, a fatal condition in which a major part of the brain is missing. She said the social worker was not supportive of her decision and that he would have to seek legal advice. She was later told the HSE would not consent to her travelling for an abortion and that it had contacted gardaí.
On April 30th, she initiated proceedings for a declaration that she is free to travel for an abortion.
During the hearing last week, the judge said the position of the HSE changed "dramatically" and last Saturday it applied to the District Court for an order permitting her to travel. Judge Flann Brennan refused on grounds that it would fail to vindicate the right to life of the unborn. The HSE on Sunday secured leave to challenge the District Court's decision.
Mr Justice McKechnie heard both legal actions together and ruled yesterday that Miss D was entitled to a declaration that there was no law preventing her travelling for an abortion. He also ruled that the District Court judge was not entitled to refuse to grant the order sought by the HSE.
The HSE is to pay the costs of Miss D and her mother. Total costs are estimated at up to €1 million.
Mr Justice McKechnie began reading his lengthy judgment to a packed courtroom at 3pm. Miss D was not present but her mother was as were members of pro-choice and anti-abortion groups. When he finished, a man who said he was from a post-abortion counselling group sought to speak but the judge left court, saying he had concluded his judgment.
Mr Justice McKechnie in his decision noted Miss D is the subject of an interim care order. The pregnancy scan had revealed her baby had a lethal abnormality. This was exceedingly distressing and traumatic and she told the HSE she wished to go to Britain for an abortion.
The judge outlined evidence of certain medical risks to the mother where anencephalic pregnancies were continued. Some women valued the experience of continuing with the pregnancy while others found that prospect "simply unbearable". This was a distressing and deeply personal decision to make.
After expressing sharp criticism of how the HSE responded to Miss D's situation, the judge found the HSE had failed to address the best interests of Miss D and failed to take into account her wishes and those of her mother, who supported her decision.
He said there was no law or provision of the Child Care Act which restrained a child in care from travelling for an abortion or which would support the HSE's claim that District Court permission was required for travel. Miss D's right to travel for an abortion was unaffected by Article 40.3.3 (the right to life) of the Constitution.
The judge also found that comments by Mr Justice Hugh Geoghegan in the C case, of a pregnant teenage rape victim, could not be relied on by the District Court as authority to stop Miss D travelling. While refusing to restrain C from travelling for an abortion, Mr Justice Geoghegan had remarked that the courts should not be used as some form of licensing body for abortions.
Mr Justice McKechnie took the different view, that the right to travel took precedence over any rights conferred on the unborn by Article 40.3.3.