Ann O'Loughlin The Irish Independent Thursday May 10th 2007.
THE judge who has ruled that the teenager at the centre of the latest abortion controversy can travel to the UK for a termination yesterday praised her courage.
Mr Justice Liam McKechnie said Miss D had received devastating news about the health of the baby she was carrying when she went for a scan while 16-weeks pregnant. He said she had made a sound moral judgment.
She could, Judge McKechnie said, have stayed mute and travelled or she could have committed perjury by claiming she had suicidal tendencies.
Miss D, he said, was determined to seek a resolution and she had shown courage, integrity and determination.
The decision that she can travel to the UK for an abortion, the judge reminded the packed courtroom, is not the end of Miss D's ordeal.
He said she would now have to book a cheap flight and travel for a termination. The teenager would have to deal with other matters afterwards.
Referring to the incident at the family home which led to the granting of the interim care order after Miss D ended up in hospital, Judge McKechnie said it would be unfair to speculate on what it might have been. Miss D was blameless.
If matters continued as they were now, a recurrence was most unlikely, he said, and later stated that Miss D's mother had supported her daughter's decision and had been with her in court. Her father had been absent from her life.
Miss D had gone for a scan on April 23, her seventeenth birthday, and it had tragically confirmed that the foetus she was carrying was suffering from an abnormality.
There was no cranial vault and, as Miss D had stated, she could see no head. The judge said the discovery was unimaginably traumatic.
Thursday, May 10, 2007
The End Of One Ordeal And The Start Of Another
Dearbhail McDonald The Irish Independent Thursday May 10th 2007
YOUNG and old; legal and lay, pro-lifers, pro-choicers, and everything in between.
There wasn't even standing room yesterday at Dublin's Four Courts to hear Judge Liam McKechnie hand down his ruling in Ireland's latest abortion controversy.
The one glaring absence amongst the 100 or so people who tried to cram into court 14 was Miss D, the 17-year-old girl who is 18 weeks pregnant with a baby that is destined to die.
Miss D had dutifully attended court on previous occasions and listened intently to five heavyweight legal teams debate her fate as she placed a protective arm over her growing baby bump and wiped tears with her free hand.
But after being hounded by pro-life and pro-choice activists (inside and out of court) earlier this week, the pretty teenager who had attended court with her boyfriend, left it to her mother and a family friend to accept the verdict on her behalf.
Gaunt and earnest, D's mother, known as Miss A, was ushered to the front of the courtroom to hear Judge McKechnie hold that there is no statutory or constitutional impediment preventing her second eldest daughter from travelling to England for an abortion.
Occasionally, nature gets it wrong and babies die. Mishaps, such as the fatal brain condition anencephaly that claims newborn victims within minutes or days of their short lives, can and do occur.
To the horror of the rosary bead-holding "pro-lifers", Judge McKechnie said that the case was not about abortion or the termination of pregnancy.
It is a case about the right to travel. It was not about the desire to terminate a healthy foetus and definitely not about the lives of children - born and unborn - who suffer from disabilities. It is a case about the right to travel and that right takes precedence over the rights of the unborn whose right to life is guaranteed in the Constitution.
D's mother, miraculous medal tied to a piece of string in hand, hung her head in relief when she realised that her daughter was free to go, but pursed her lips as the judge outlined what she already knew: that her daughter's ordeal isn't over.
In many ways, it is only just beginning.
Now they will have to make arrangements: book a cheap flight and leave the country to terminate the much loved, much wanted, but ultimately doomed unborn baby who nature betrayed.
YOUNG and old; legal and lay, pro-lifers, pro-choicers, and everything in between.
There wasn't even standing room yesterday at Dublin's Four Courts to hear Judge Liam McKechnie hand down his ruling in Ireland's latest abortion controversy.
The one glaring absence amongst the 100 or so people who tried to cram into court 14 was Miss D, the 17-year-old girl who is 18 weeks pregnant with a baby that is destined to die.
Miss D had dutifully attended court on previous occasions and listened intently to five heavyweight legal teams debate her fate as she placed a protective arm over her growing baby bump and wiped tears with her free hand.
But after being hounded by pro-life and pro-choice activists (inside and out of court) earlier this week, the pretty teenager who had attended court with her boyfriend, left it to her mother and a family friend to accept the verdict on her behalf.
Gaunt and earnest, D's mother, known as Miss A, was ushered to the front of the courtroom to hear Judge McKechnie hold that there is no statutory or constitutional impediment preventing her second eldest daughter from travelling to England for an abortion.
Occasionally, nature gets it wrong and babies die. Mishaps, such as the fatal brain condition anencephaly that claims newborn victims within minutes or days of their short lives, can and do occur.
To the horror of the rosary bead-holding "pro-lifers", Judge McKechnie said that the case was not about abortion or the termination of pregnancy.
It is a case about the right to travel. It was not about the desire to terminate a healthy foetus and definitely not about the lives of children - born and unborn - who suffer from disabilities. It is a case about the right to travel and that right takes precedence over the rights of the unborn whose right to life is guaranteed in the Constitution.
D's mother, miraculous medal tied to a piece of string in hand, hung her head in relief when she realised that her daughter was free to go, but pursed her lips as the judge outlined what she already knew: that her daughter's ordeal isn't over.
In many ways, it is only just beginning.
Now they will have to make arrangements: book a cheap flight and leave the country to terminate the much loved, much wanted, but ultimately doomed unborn baby who nature betrayed.
Key Quotes From A Landmark Case.
The Irish Independent.
Key quotes from a landmark case Thursday May 10th 2007
Doctors for Choice: Dr Juliet Bressan said: "We would urge that Miss D be allowed have a therapeutic abortion in Ireland as soon as possible. Failing that, the HSE should fund Miss D's termination on an E112 form without delay.''
''We call upon the political parties to ensure adequate legislation is urgently put in place, to ensure no woman is ever forced through this kind of humiliation again."
Health Service Executive: Accepting the court decision it said it acted in accordance in what they believed to be the correct course of action in terms of the constraints imposed on them by law.
"The HSE always considered a court order was necessary. The decision today will require further consideration in terms of the HSE's duties and responsibilities under childcare legislation."
Irish Family Planning Association: It said the failure of successive governments to legislate for abortion was the singular reason behind the necessity of Miss D having to take her case to the High Court.
It said it was unacceptable that a situation persisted whereby there was no proper legal framework on abortion in Ireland.
Psychologists for Choice: Miss D now needed proper medical and psychological support.
"Unfortunately, this support is impossible to provide to any pregnant woman for as long as there is a failure to properly legislate for travel, information and abortion services in specific circumstances as voted for by the people in the last two referendums." Pro-Life Campaign: "We cannot ignore the fact abortion involves the taking of an innocent life.
"This tragic case also reminds us of the urgent obligation on society to ensure every possible support is put in place so that no woman feels abortion is the only option open to her."
Key quotes from a landmark case Thursday May 10th 2007
Doctors for Choice: Dr Juliet Bressan said: "We would urge that Miss D be allowed have a therapeutic abortion in Ireland as soon as possible. Failing that, the HSE should fund Miss D's termination on an E112 form without delay.''
''We call upon the political parties to ensure adequate legislation is urgently put in place, to ensure no woman is ever forced through this kind of humiliation again."
Health Service Executive: Accepting the court decision it said it acted in accordance in what they believed to be the correct course of action in terms of the constraints imposed on them by law.
"The HSE always considered a court order was necessary. The decision today will require further consideration in terms of the HSE's duties and responsibilities under childcare legislation."
Irish Family Planning Association: It said the failure of successive governments to legislate for abortion was the singular reason behind the necessity of Miss D having to take her case to the High Court.
It said it was unacceptable that a situation persisted whereby there was no proper legal framework on abortion in Ireland.
Psychologists for Choice: Miss D now needed proper medical and psychological support.
"Unfortunately, this support is impossible to provide to any pregnant woman for as long as there is a failure to properly legislate for travel, information and abortion services in specific circumstances as voted for by the people in the last two referendums." Pro-Life Campaign: "We cannot ignore the fact abortion involves the taking of an innocent life.
"This tragic case also reminds us of the urgent obligation on society to ensure every possible support is put in place so that no woman feels abortion is the only option open to her."
Judge Accuses HSE Of Creating Another X Case Scenario
Ann O'Loughlin The Irish Independent Thursday May 10th.
THE judge at the centre of the latest abortion case was yesterday sharply critical of the HSE over the way it handled Miss D's situation.
The HSE seemed to have tried to "shoehorn" Miss D into an X Case-type situation although it had no evidence that she was ever suicidal, Mr Justice Liam McKechnie said.
While it would "perhaps be unfair" to criticise the HSE for seeking to create an X Case scenario, he said he was "most surprised" at the absence of any recorded decision of the HSE on the most crucial aspect of the case - what course of action would be in the best interests of the welfare of the girl.
The judge said the position of the HSE had changed significantly, "some would say dramatically", during the case.
It had initially told Miss D she could not travel for an abortion without its consent and that it she tried, she could be restrained, by force if necessary.
However, that claim was not pursued during the court hearing. The actions of a HSE social worker in telling gardai that Miss D must be prevented from travelling were without foundation in law, the judge said.
The HSE had later made the argument that a District Court order was required before Miss D could travel, he said. If it believed so, it should have made a District Court application early on.
Justice McKechnie said the HSE was effectively "riding two horses with a firm grip on both" and, either way, it had control over the destiny of Miss D.
It seemed that the HSE had tried to shoehorn Miss D into an X Case situation and it was to Miss D's great credit that she did not perjure herself in that regard and say she was suicidal.
The actions of the HSE indicated it had crucially failed to have regard to her best interests and also failed to have regard to her own wishes and the wishes of her mother. There was no conflict between herself and her mother about her decision on the termination, he noted.
The HSE was to be commended for applying to the District Court last Saturday, albeit late in the day, Mr McKechnie said.
However, the judge said he must comment on the "unacceptable failure" to disclose until later in the court hearing that the HSE had contacted the Passport Office after Miss D told a social worker she intended applying for a passport.
THE judge at the centre of the latest abortion case was yesterday sharply critical of the HSE over the way it handled Miss D's situation.
The HSE seemed to have tried to "shoehorn" Miss D into an X Case-type situation although it had no evidence that she was ever suicidal, Mr Justice Liam McKechnie said.
While it would "perhaps be unfair" to criticise the HSE for seeking to create an X Case scenario, he said he was "most surprised" at the absence of any recorded decision of the HSE on the most crucial aspect of the case - what course of action would be in the best interests of the welfare of the girl.
The judge said the position of the HSE had changed significantly, "some would say dramatically", during the case.
It had initially told Miss D she could not travel for an abortion without its consent and that it she tried, she could be restrained, by force if necessary.
However, that claim was not pursued during the court hearing. The actions of a HSE social worker in telling gardai that Miss D must be prevented from travelling were without foundation in law, the judge said.
The HSE had later made the argument that a District Court order was required before Miss D could travel, he said. If it believed so, it should have made a District Court application early on.
Justice McKechnie said the HSE was effectively "riding two horses with a firm grip on both" and, either way, it had control over the destiny of Miss D.
It seemed that the HSE had tried to shoehorn Miss D into an X Case situation and it was to Miss D's great credit that she did not perjure herself in that regard and say she was suicidal.
The actions of the HSE indicated it had crucially failed to have regard to her best interests and also failed to have regard to her own wishes and the wishes of her mother. There was no conflict between herself and her mother about her decision on the termination, he noted.
The HSE was to be commended for applying to the District Court last Saturday, albeit late in the day, Mr McKechnie said.
However, the judge said he must comment on the "unacceptable failure" to disclose until later in the court hearing that the HSE had contacted the Passport Office after Miss D told a social worker she intended applying for a passport.
High Court Grants Teenager Right To Travel For Abortion
Ann O'Loughlin The Irish Independent Thursday May 10th 2007
Judge says no legal or constitutional bar exists
THE 17-year old girl at the centre of the latest abortion controversy can travel to the UK for an abortion after a judge ruled there was no law to prevent her doing so.
Mr Justice Liam McKechnie said he "firmly and unequivocally'" holds the view that there is no legal 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 Miss D is carrying, 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.
It was "not about abortion". His decision had no impact on children born with profound disabilities who, in any civilised society, "must be cherished and loved".
The HSE is to pay the costs of Miss D and her mother in the legal actions in both the District and High Courts. Total costs of the actions are estimated at up to €1m.
The High Court judge was delivering his reserved judgment yesterday on proceedings arising after Miss D, who is some 18 weeks pregnant and from the Leinster region, told a HSE social worker on April 26 of her intention to travel for an abortion.
She made that decision after learning, from an ultrasound scan on April 23 that her baby had a fatal brain condition. She was later told the HSE would not consent to her travelling for an abortion and that it had contacted gardai.
On April 30 last, 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, which District Judge Flann Brennan refused on the 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. Yesterday, he ruled Miss D was entitled to a declaration that there is no law preventing her travelling for an abortion and he also ruled the District Court judge was not entitled to refuse to grant the order sought by the HSE.
Mr Justice McKechnie began reading his lengthy judgment to a packed courtroom at 3pm yesterday. Miss D was not present but her mother was as were members of pro-choice and anti-abortion groups.
In his decision, the judge noted Miss D was the subject of an interim care order. The scan of April 23 had revealed her baby had a lethal abnormality which was incompatible with life outside the uterus. The judge outlined evidence of certain medical risks to the mother where anencephalitic pregnancies are continued with. 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. He found there was no law or provision of the Child Care Act 1991 which restrained a child in care travelling for an abortion or which would support the HSE's claim that District Court permission was required for travel. He also ruled there was no power under an interim care order for the HSE to consent to medical treatment or the issuing of a passport for Miss D.
Judge says no legal or constitutional bar exists
THE 17-year old girl at the centre of the latest abortion controversy can travel to the UK for an abortion after a judge ruled there was no law to prevent her doing so.
Mr Justice Liam McKechnie said he "firmly and unequivocally'" holds the view that there is no legal 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 Miss D is carrying, 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.
It was "not about abortion". His decision had no impact on children born with profound disabilities who, in any civilised society, "must be cherished and loved".
The HSE is to pay the costs of Miss D and her mother in the legal actions in both the District and High Courts. Total costs of the actions are estimated at up to €1m.
The High Court judge was delivering his reserved judgment yesterday on proceedings arising after Miss D, who is some 18 weeks pregnant and from the Leinster region, told a HSE social worker on April 26 of her intention to travel for an abortion.
She made that decision after learning, from an ultrasound scan on April 23 that her baby had a fatal brain condition. She was later told the HSE would not consent to her travelling for an abortion and that it had contacted gardai.
On April 30 last, 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, which District Judge Flann Brennan refused on the 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. Yesterday, he ruled Miss D was entitled to a declaration that there is no law preventing her travelling for an abortion and he also ruled the District Court judge was not entitled to refuse to grant the order sought by the HSE.
Mr Justice McKechnie began reading his lengthy judgment to a packed courtroom at 3pm yesterday. Miss D was not present but her mother was as were members of pro-choice and anti-abortion groups.
In his decision, the judge noted Miss D was the subject of an interim care order. The scan of April 23 had revealed her baby had a lethal abnormality which was incompatible with life outside the uterus. The judge outlined evidence of certain medical risks to the mother where anencephalitic pregnancies are continued with. 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. He found there was no law or provision of the Child Care Act 1991 which restrained a child in care travelling for an abortion or which would support the HSE's claim that District Court permission was required for travel. He also ruled there was no power under an interim care order for the HSE to consent to medical treatment or the issuing of a passport for Miss D.
Child Welfare Chaos Fear As Miss D Wins Right To Travel
Dearbhail McDonald The Irish Independent Thursday May 10th 2007.
Judge praises pregnant girl's courage
THE High Court decision to allow Miss D travel to have an abortion could wreak havoc on our child welfare system, legal experts warned last night.
Hundreds of children in the care of the State could leave the country as a result of yesterday's ruling, they said.
The court found the HSE had no right to stop the pregnant 17-year-old girl from travelling abroad.
This could have serious implications for the care system as it effectively means that many young people, over 15 years of age, in temporary care do not need court approval to leave the system and travel outside the country.
Last night, the girl, known as Miss D, who is 18 weeks pregnant, made arrangements to travel to England for an abortion.
Her foetus suffers from a condition which means it will not survive more than a few days after birth.
Judge Liam McKechnie said the HSE has no right to restrain a child subject to an interim care order from travelling abroad for an abortion. And he rejected the HSE's claim that court permission is required for children in its care to travel.
Although the ruling has defused the latest abortion crisis by permitting the teen to travel, it has now created uncertainty about the powers and duties of the HSE, which has more than 5,000 children in its care.
Last night the HSE, which was severely criticised over its handling of the case, said it had always considered a court order was necessary to allow the teenager to leave its care.
It said the ruling will require further consideration in terms of its duties and responsibilities under child care laws.
Catherine Ghent, a solicitor who represents children in care proceedings asked: "What will the authorities do now?
"If vulnerable children can leave the country without the permission of the HSE and the courts, regardless of the purpose of that travel, it will have wide ranging implications on the operation of the 1991 Child care Act.
"Children, of course, have rights, but they can not always exercise those rights on their own behalf especially if they are placed in emergency or interim care. The fallout from this ruling could be very significant".
Yesterday, Judge McKechnie said he "firmly and unequivocally" held the view there is 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.
This case, he stressed, was about the right to travel. It was "'not about abortion" or about a decision to terminate the existence of a healthy foetus or a disabled child.
The judge said his decision had no impact on children born with profound disabilities who, in any civilised society, "'must be cherished and loved".
He ruled Miss D is entitled to a declaration that there is no law preventing her travelling for an abortion and praised her courage in taking the case to court.
He found the HSE had failed to address the best interests of Miss D in addressing her plight.
Mr Justice McKechnie began reading his lengthy judgment to a packed courtroom at 3pm yesterday.
Miss D was not present but her mother was as were members of pro-choice and anti-abortion groups.
The judge said it was imperative to recognise the rights of children and parents and that children's rights continue throughout childhood.
The HSE seemed to have tried to "'shoehorn" Miss D into an X case type situation although it had no evidence that she was ever suicidal, Mr Justice Liam McKechnie said.
While it would "perhaps be unfair" to criticise the HSE for seeking to create an X case scenario, he said he was "most surprised" at the absence of any recorded decision of the HSE on the most crucial aspect of the case - what course of action would be in the best interests of the welfare of the girl.
The Judge said the position of the HSE had changed significanlty, "some would say dramatically", during the case.
It had initially told Miss D she could not travel for an abortion without its consent and that it she tried, she could be restrained, by force if necessary, but that claim was not pursued during the court hearing.
Judge praises pregnant girl's courage
THE High Court decision to allow Miss D travel to have an abortion could wreak havoc on our child welfare system, legal experts warned last night.
Hundreds of children in the care of the State could leave the country as a result of yesterday's ruling, they said.
The court found the HSE had no right to stop the pregnant 17-year-old girl from travelling abroad.
This could have serious implications for the care system as it effectively means that many young people, over 15 years of age, in temporary care do not need court approval to leave the system and travel outside the country.
Last night, the girl, known as Miss D, who is 18 weeks pregnant, made arrangements to travel to England for an abortion.
Her foetus suffers from a condition which means it will not survive more than a few days after birth.
Judge Liam McKechnie said the HSE has no right to restrain a child subject to an interim care order from travelling abroad for an abortion. And he rejected the HSE's claim that court permission is required for children in its care to travel.
Although the ruling has defused the latest abortion crisis by permitting the teen to travel, it has now created uncertainty about the powers and duties of the HSE, which has more than 5,000 children in its care.
Last night the HSE, which was severely criticised over its handling of the case, said it had always considered a court order was necessary to allow the teenager to leave its care.
It said the ruling will require further consideration in terms of its duties and responsibilities under child care laws.
Catherine Ghent, a solicitor who represents children in care proceedings asked: "What will the authorities do now?
"If vulnerable children can leave the country without the permission of the HSE and the courts, regardless of the purpose of that travel, it will have wide ranging implications on the operation of the 1991 Child care Act.
"Children, of course, have rights, but they can not always exercise those rights on their own behalf especially if they are placed in emergency or interim care. The fallout from this ruling could be very significant".
Yesterday, Judge McKechnie said he "firmly and unequivocally" held the view there is 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.
This case, he stressed, was about the right to travel. It was "'not about abortion" or about a decision to terminate the existence of a healthy foetus or a disabled child.
The judge said his decision had no impact on children born with profound disabilities who, in any civilised society, "'must be cherished and loved".
He ruled Miss D is entitled to a declaration that there is no law preventing her travelling for an abortion and praised her courage in taking the case to court.
He found the HSE had failed to address the best interests of Miss D in addressing her plight.
Mr Justice McKechnie began reading his lengthy judgment to a packed courtroom at 3pm yesterday.
Miss D was not present but her mother was as were members of pro-choice and anti-abortion groups.
The judge said it was imperative to recognise the rights of children and parents and that children's rights continue throughout childhood.
The HSE seemed to have tried to "'shoehorn" Miss D into an X case type situation although it had no evidence that she was ever suicidal, Mr Justice Liam McKechnie said.
While it would "perhaps be unfair" to criticise the HSE for seeking to create an X case scenario, he said he was "most surprised" at the absence of any recorded decision of the HSE on the most crucial aspect of the case - what course of action would be in the best interests of the welfare of the girl.
The Judge said the position of the HSE had changed significanlty, "some would say dramatically", during the case.
It had initially told Miss D she could not travel for an abortion without its consent and that it she tried, she could be restrained, by force if necessary, but that claim was not pursued during the court hearing.
Court Rules 'Miss D' Can Travel To UK For Abortion
The Irish Times Thursday May 10th
The High Court yesterday granted a 17-year-old girl carrying a foetus that would not live more than three days outside the womb the right to travel to the UK for an abortion. Mary Carolan and Carl O'Brien report.
Mr Justice Liam McKechnie said he "firmly and unequivocally" held the view that there was no law or constitutional impediment preventing the girl - identified only as "Miss D" - travelling for the purpose of terminating her pregnancy.
He sharply criticised the actions of the Health Service Executive (HSE) in dealing with Miss D's situation, while praising the girl's maturity in confronting her dilemma.
The HSE had initially told Miss D she could not travel for an abortion without its consent and she could be restrained, by force if necessary, if she tried. This claim was not pursued during the court hearing.
The actions of a HSE social worker in telling gardaí that Miss D must be prevented from travelling were without foundation in law, the judge said.
Furthermore, the HSE never sought to establish what course of action was in her best interests. Instead, it sought to "shoehorn" the girl into an X-case-type situation, although there was no evidence she was ever suicidal.
This case, he stressed, was about the right to travel. It was "not about abortion" or about a decision to terminate the existence of a healthy foetus or a disabled child.
Miss D, who is 18 weeks pregnant and from the Leinster region, had shown "courage, integrity and maturity" in dealing with her plight, said the judge.
The girl was not in court yesterday, although her solicitor said afterwards she was "very pleased" with the ruling. Her mother, who was in court, said she was delighted on her daughter's behalf.
The HSE last night said it accepted the ruling, but emphasised it had taken what it believed to be the correct course of action. A spokeswoman said the HSE had always considered a court order was necessary for the girl to travel abroad.
"The HSE regrets any distress arising for Miss D and her family. The matters at issue were not straightforward or simple in ascertaining this girl's best interests. The HSE will continue to offer Miss D all the care and support which it is in a position to make available," the spokeswoman said.
The ruling has averted a fresh political or constitutional crisis over abortion, but it has thrown into doubt the HSE's authority to take the role of parent on behalf of hundreds of children who are the subject of interim care orders.
The Irish Times understands senior HSE officials are deeply concerned about the impact of the ruling for other children in care. It has not yet ruled out appealing at least some of yesterday's judgment.
There were contrasting reactions to the ruling from anti-abortion protesters and pro-choice groups, who staged rival demonstrations outside the court yesterday.
The Irish Family Planning Association (IFPA) and the Alliance for Choice group said the teenager should not have had to endure a protracted court hearing.
They said the lack of a proper legal framework on abortion in Ireland meant other cases involving women in crisis pregnancy situations will inevitably come before the courts.
However, Dr Berry Kiely of the Pro-Life Campaign said the public could not ignore the fact that abortion involved the taking of an innocent human life.
"This tragic case also reminds us of the urgent obligation on society to ensure that every possible support is put in place so that no woman feels abortion is the only option open to her."
The HSE is to pay the costs of Miss D and her mother in the legal actions in both the District and High Courts. Total costs are estimated at up to €1 million.
The High Court yesterday granted a 17-year-old girl carrying a foetus that would not live more than three days outside the womb the right to travel to the UK for an abortion. Mary Carolan and Carl O'Brien report.
Mr Justice Liam McKechnie said he "firmly and unequivocally" held the view that there was no law or constitutional impediment preventing the girl - identified only as "Miss D" - travelling for the purpose of terminating her pregnancy.
He sharply criticised the actions of the Health Service Executive (HSE) in dealing with Miss D's situation, while praising the girl's maturity in confronting her dilemma.
The HSE had initially told Miss D she could not travel for an abortion without its consent and she could be restrained, by force if necessary, if she tried. This claim was not pursued during the court hearing.
The actions of a HSE social worker in telling gardaí that Miss D must be prevented from travelling were without foundation in law, the judge said.
Furthermore, the HSE never sought to establish what course of action was in her best interests. Instead, it sought to "shoehorn" the girl into an X-case-type situation, although there was no evidence she was ever suicidal.
This case, he stressed, was about the right to travel. It was "not about abortion" or about a decision to terminate the existence of a healthy foetus or a disabled child.
Miss D, who is 18 weeks pregnant and from the Leinster region, had shown "courage, integrity and maturity" in dealing with her plight, said the judge.
The girl was not in court yesterday, although her solicitor said afterwards she was "very pleased" with the ruling. Her mother, who was in court, said she was delighted on her daughter's behalf.
The HSE last night said it accepted the ruling, but emphasised it had taken what it believed to be the correct course of action. A spokeswoman said the HSE had always considered a court order was necessary for the girl to travel abroad.
"The HSE regrets any distress arising for Miss D and her family. The matters at issue were not straightforward or simple in ascertaining this girl's best interests. The HSE will continue to offer Miss D all the care and support which it is in a position to make available," the spokeswoman said.
The ruling has averted a fresh political or constitutional crisis over abortion, but it has thrown into doubt the HSE's authority to take the role of parent on behalf of hundreds of children who are the subject of interim care orders.
The Irish Times understands senior HSE officials are deeply concerned about the impact of the ruling for other children in care. It has not yet ruled out appealing at least some of yesterday's judgment.
There were contrasting reactions to the ruling from anti-abortion protesters and pro-choice groups, who staged rival demonstrations outside the court yesterday.
The Irish Family Planning Association (IFPA) and the Alliance for Choice group said the teenager should not have had to endure a protracted court hearing.
They said the lack of a proper legal framework on abortion in Ireland meant other cases involving women in crisis pregnancy situations will inevitably come before the courts.
However, Dr Berry Kiely of the Pro-Life Campaign said the public could not ignore the fact that abortion involved the taking of an innocent human life.
"This tragic case also reminds us of the urgent obligation on society to ensure that every possible support is put in place so that no woman feels abortion is the only option open to her."
The HSE is to pay the costs of Miss D and her mother in the legal actions in both the District and High Courts. Total costs are estimated at up to €1 million.
Main Parties Unwilling To Grab Nettle Of Abortion
Stephen Collins The Irish Times Thursday May 10th.
After referendums and rulings, there is still no legislation, writes Stephen Collins , Political Editor
The High Court decision to allow Miss D to travel abroad for an abortion has brought the thorny issue back to the centre of public debate. There have been five abortion-related referendums since 1983 and the issue still divides the politicians as well as the voters.
The anti-abortion amendment to the Constitution in 1983 created such bitter divisions that politicians were reluctant to revisit the issue and they never put a legislative framework in place to deal with that constitutional change.
The issue came back to haunt them in 1992 when the Supreme Court decided to allow Miss X, a minor, to travel to Britain for an abortion on the basis that there was a real threat to her life as she was suicidal.
The then taoiseach Albert Reynolds then introduced three referendum proposals, one dealing with the right to travel, another covering the right to information about abortion and the third or so-called substantive amendment dealing with the circumstance in which the threat to a mother's health could be grounds for abortion.
Two of the proposals, the right to travel and information, were passed. However, the third was defeated by a combination of conservatives who believed that the measure was too liberal and liberals who believed that it was too conservative.
The referendums were held on the same day as the general election of 1992 which led to the formation of the first and only Fianna Fáil-Labour coalition. Labour insisted that the programme for government included a commitment to legislate for abortion in the light of the X case as well as legislating for travel and information.
In the event none of this legislation emerged. When the Reynolds government fell in 1994, it was replaced by the rainbow government led by John Bruton, which also included Labour and a commitment to legislate.
Legislation to deal with travel and information was introduced by the rainbow coalition and passed through the Dáil in the face of opposition from Fianna Fáil but legislation to cover the X case did not emerge.
When Bertie Ahern led Fianna Fáil back into government with the PDs in 1997, he pledged to deal with the issue. He did so by proposing a constitutional amendment quite similar to the "substantive" measure proposed by Reynolds in 1992 which dealt with the threat to the health and life of the mother but removed the threat of suicide as a ground for abortion.
This time the Catholic Church supported the amendment but again it was defeated by a combination of liberals and conservatives. Most of the leaders of the original anti-abortion campaign of 1983 supported the measure but more radical conservatives campaigned against it.
The response of the political parties to the matter varied and there are divisions within almost all the parties on the issue.
The formal position of the parties is as follows:
Fianna Fáil: The party is opposed to legislation allowing for the introduction of abortion in Ireland and wishes to leave the status quo untouched.
Fine Gael: The party's position is almost identical. Enda Kenny expressed his sympathy for the tragic circumstances facing the young woman involved in the Miss D case but made it clear that he did not favour legislating for abortion.
The Progressive Democrats: A party spokeswoman said yesterday that it had never developed a single collective position on abortion. The PD constitution provides for the right of individual elected members to have their own separate views on matters of conscience and morality.
Labour: Following confusion over a motion passed at its annual conference of 2001, the party established a committee to examine the position. It reported back in 2003 and its recommendations were accepted by the party.
They were that the party commit itself to bringing forward legislation, under the current constitutional position, to provide for the availability of a termination of pregnancy in the cases of:
A risk to the life of the woman, including the risk of suicide;
Foetal abnormality which is such that the foetus will never be born alive;
A risk of significant injury to the physical health of the mother.
In the event of a constitutional challenge to any of this legislation being upheld, the Labour would then consider such constitutional options as would then arise in the light of any judgment.
The Greens: The party does not have a position on the issue. A spokesman said yesterday that there was no appetite in the party for a decision on the issue one way or another as there were divided views on the matter. He added that it was a matter of personal conscience.
Sinn Féin: The party ardfheis last year voted in favour of legislation to provide for abortion in the Republic. However, a statement on its position yesterday said Sinn Féin was not in favour of abortion nor did it believe that the 1967 British Abortion Act should be extended to the North.
"Where a woman's life and health is at risk or in grave danger or in cases of rape, incest or sexual abuse, we urge compassion and accept that the final decision should rest with the woman," said the party in the statement.
After referendums and rulings, there is still no legislation, writes Stephen Collins , Political Editor
The High Court decision to allow Miss D to travel abroad for an abortion has brought the thorny issue back to the centre of public debate. There have been five abortion-related referendums since 1983 and the issue still divides the politicians as well as the voters.
The anti-abortion amendment to the Constitution in 1983 created such bitter divisions that politicians were reluctant to revisit the issue and they never put a legislative framework in place to deal with that constitutional change.
The issue came back to haunt them in 1992 when the Supreme Court decided to allow Miss X, a minor, to travel to Britain for an abortion on the basis that there was a real threat to her life as she was suicidal.
The then taoiseach Albert Reynolds then introduced three referendum proposals, one dealing with the right to travel, another covering the right to information about abortion and the third or so-called substantive amendment dealing with the circumstance in which the threat to a mother's health could be grounds for abortion.
Two of the proposals, the right to travel and information, were passed. However, the third was defeated by a combination of conservatives who believed that the measure was too liberal and liberals who believed that it was too conservative.
The referendums were held on the same day as the general election of 1992 which led to the formation of the first and only Fianna Fáil-Labour coalition. Labour insisted that the programme for government included a commitment to legislate for abortion in the light of the X case as well as legislating for travel and information.
In the event none of this legislation emerged. When the Reynolds government fell in 1994, it was replaced by the rainbow government led by John Bruton, which also included Labour and a commitment to legislate.
Legislation to deal with travel and information was introduced by the rainbow coalition and passed through the Dáil in the face of opposition from Fianna Fáil but legislation to cover the X case did not emerge.
When Bertie Ahern led Fianna Fáil back into government with the PDs in 1997, he pledged to deal with the issue. He did so by proposing a constitutional amendment quite similar to the "substantive" measure proposed by Reynolds in 1992 which dealt with the threat to the health and life of the mother but removed the threat of suicide as a ground for abortion.
This time the Catholic Church supported the amendment but again it was defeated by a combination of liberals and conservatives. Most of the leaders of the original anti-abortion campaign of 1983 supported the measure but more radical conservatives campaigned against it.
The response of the political parties to the matter varied and there are divisions within almost all the parties on the issue.
The formal position of the parties is as follows:
Fianna Fáil: The party is opposed to legislation allowing for the introduction of abortion in Ireland and wishes to leave the status quo untouched.
Fine Gael: The party's position is almost identical. Enda Kenny expressed his sympathy for the tragic circumstances facing the young woman involved in the Miss D case but made it clear that he did not favour legislating for abortion.
The Progressive Democrats: A party spokeswoman said yesterday that it had never developed a single collective position on abortion. The PD constitution provides for the right of individual elected members to have their own separate views on matters of conscience and morality.
Labour: Following confusion over a motion passed at its annual conference of 2001, the party established a committee to examine the position. It reported back in 2003 and its recommendations were accepted by the party.
They were that the party commit itself to bringing forward legislation, under the current constitutional position, to provide for the availability of a termination of pregnancy in the cases of:
A risk to the life of the woman, including the risk of suicide;
Foetal abnormality which is such that the foetus will never be born alive;
A risk of significant injury to the physical health of the mother.
In the event of a constitutional challenge to any of this legislation being upheld, the Labour would then consider such constitutional options as would then arise in the light of any judgment.
The Greens: The party does not have a position on the issue. A spokesman said yesterday that there was no appetite in the party for a decision on the issue one way or another as there were divided views on the matter. He added that it was a matter of personal conscience.
Sinn Féin: The party ardfheis last year voted in favour of legislation to provide for abortion in the Republic. However, a statement on its position yesterday said Sinn Féin was not in favour of abortion nor did it believe that the 1967 British Abortion Act should be extended to the North.
"Where a woman's life and health is at risk or in grave danger or in cases of rape, incest or sexual abuse, we urge compassion and accept that the final decision should rest with the woman," said the party in the statement.
Judge Praises Maturity and Courage Of Miss D.
Mary Carolan The Irish Times Thursday May 10th 2007
Miss D has shown courage, integrity and maturity in dealing with her very distressing plight and by not claiming to be suicidal when such a claim would have meant she could, "without fuss", have travelled for an abortion, the High Court was told.
Mr Justice McKechnie said she had got devastating news on her 17th birthday about the health of the baby she was carrying when she had a scan she was 16 weeks pregnant. She had decided she wished to travel for an abortion and told the HSE. She had shown sound moral judgment when she could have stayed mute and travelled or could have committed perjury by claiming she had suicidal tendencies.
She did none of that and that was to her credit, the judge said. Miss D was determined to seek a resolution and she had shown courage and determination.
His decision that she was free to travel to Britain for an abortion was not, the judge stressed, the end of Miss D's ordeal. She would now have to make arrangements, book a cheap flight or take the boat, to travel for a termination. That in itself would only be an end to a certain part of her ordeal. She would have to deal with other matters afterwards.
Referring to an incident at the family home between Miss D and her mother, which led to Miss D going to hospital and to the granting last February of an interim care order in relation to her, Mr Justice McKechnie said it would be unfair to speculate on what that incident might have been.
He said Miss D was blameless. If matters continued as they were now, a recurrence of that incident was most unlikely, he said. Miss D's mother had supported her daughter's decision on termination and had been with her in court. Her father had been absent from her life and was not involved in this case.
Mr Justice McKechnie said anencephaly was a condition that was, without exception, fatal. There was unanimous evidence the baby could not live. This "tragic foetus" was destined to die and all the love and care was not going to change that, he said.
Miss D has shown courage, integrity and maturity in dealing with her very distressing plight and by not claiming to be suicidal when such a claim would have meant she could, "without fuss", have travelled for an abortion, the High Court was told.
Mr Justice McKechnie said she had got devastating news on her 17th birthday about the health of the baby she was carrying when she had a scan she was 16 weeks pregnant. She had decided she wished to travel for an abortion and told the HSE. She had shown sound moral judgment when she could have stayed mute and travelled or could have committed perjury by claiming she had suicidal tendencies.
She did none of that and that was to her credit, the judge said. Miss D was determined to seek a resolution and she had shown courage and determination.
His decision that she was free to travel to Britain for an abortion was not, the judge stressed, the end of Miss D's ordeal. She would now have to make arrangements, book a cheap flight or take the boat, to travel for a termination. That in itself would only be an end to a certain part of her ordeal. She would have to deal with other matters afterwards.
Referring to an incident at the family home between Miss D and her mother, which led to Miss D going to hospital and to the granting last February of an interim care order in relation to her, Mr Justice McKechnie said it would be unfair to speculate on what that incident might have been.
He said Miss D was blameless. If matters continued as they were now, a recurrence of that incident was most unlikely, he said. Miss D's mother had supported her daughter's decision on termination and had been with her in court. Her father had been absent from her life and was not involved in this case.
Mr Justice McKechnie said anencephaly was a condition that was, without exception, fatal. There was unanimous evidence the baby could not live. This "tragic foetus" was destined to die and all the love and care was not going to change that, he said.
Judge Says HSE Did Not Put Welfare Of Pregnant Girl First
Mary Carolan The Irish Times Thursday May 10th 2007
The HSE seemed to have tried to "shoehorn" Miss D into an X-case situation although it had no evidence that she was ever suicidal, Mr Justice McKechnie said.
While it would "perhaps be unfair" to criticise the HSE for seeking to create an X-case scenario, he said he was "most surprised" at the absence of any recorded decision of the HSE on the most crucial aspect of the case - what course of action would be in the best interests of the welfare of the girl.
In his judgment, the judge was very critical of the actions of the HSE in dealing with Miss D's situation. He said the position of the HSE had changed significantly, "some would say dramatically", during the case.
The HSE had initially told Miss D she could not travel for an abortion without its consent and that if she tried, she could be restrained, by force if necessary, but that claim was not pursued during the court hearing.
The actions of a HSE social worker in telling gardaí that Miss D must be prevented from travelling were without foundation in law, the judge said.
The HSE had later made the argument that a District Court order was required before Miss D could travel, he said. If it believed so, it should have made a District Court application early on.
The judge said the HSE was effectively "riding two horses with a firm grip on both" and, either way, it had control over the destiny of Miss D.
However, what it was crucially required to do but had failed to do, was address its statutory duty to establish what course of action was in her best interests. If it took the view it was in her best interests to travel for an abortion, it should have said so.
It seemed that the HSE had tried to "shoehorn" Miss D into an X case situation and it was to Miss D's great credit that she did not perjure herself in that regard and say she was suicidal, Mr Justice McKechnie said.
The HSE position underwent a significant change during the court hearing last week and it took steps last weekend to apply to the District Court. It was to be commended for actively pursuing that solution, albeit it did so late in the day, he added.
He said he must comment on the "unacceptable" failure to disclose until later in the court hearing that the HSE had contacted the Passport Office after Miss D told a social worker she intended applying for a passport.
The HSE seemed to have tried to "shoehorn" Miss D into an X-case situation although it had no evidence that she was ever suicidal, Mr Justice McKechnie said.
While it would "perhaps be unfair" to criticise the HSE for seeking to create an X-case scenario, he said he was "most surprised" at the absence of any recorded decision of the HSE on the most crucial aspect of the case - what course of action would be in the best interests of the welfare of the girl.
In his judgment, the judge was very critical of the actions of the HSE in dealing with Miss D's situation. He said the position of the HSE had changed significantly, "some would say dramatically", during the case.
The HSE had initially told Miss D she could not travel for an abortion without its consent and that if she tried, she could be restrained, by force if necessary, but that claim was not pursued during the court hearing.
The actions of a HSE social worker in telling gardaí that Miss D must be prevented from travelling were without foundation in law, the judge said.
The HSE had later made the argument that a District Court order was required before Miss D could travel, he said. If it believed so, it should have made a District Court application early on.
The judge said the HSE was effectively "riding two horses with a firm grip on both" and, either way, it had control over the destiny of Miss D.
However, what it was crucially required to do but had failed to do, was address its statutory duty to establish what course of action was in her best interests. If it took the view it was in her best interests to travel for an abortion, it should have said so.
It seemed that the HSE had tried to "shoehorn" Miss D into an X case situation and it was to Miss D's great credit that she did not perjure herself in that regard and say she was suicidal, Mr Justice McKechnie said.
The HSE position underwent a significant change during the court hearing last week and it took steps last weekend to apply to the District Court. It was to be commended for actively pursuing that solution, albeit it did so late in the day, he added.
He said he must comment on the "unacceptable" failure to disclose until later in the court hearing that the HSE had contacted the Passport Office after Miss D told a social worker she intended applying for a passport.
High Court Rules That Girl Can Travel For Abortion
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.
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.
Political Failure On Abortion Question
Irish Times Editorial Thursday May 10th 2007.
The relief that most people will feel at yesterday's ruling on the D case in the High Court by Mr Justice Liam McKechnie must be tinged by anger. It is good to know that we do not live in a State in which the appropriate response to the tragic dilemma of a young girl in its care is to call the police and drag her through the courts. It is, however, depressing to realise that, in 2007, this is something that has to be argued over by five teams of lawyers.
The 17-year-old Miss D is 18 weeks pregnant with a baby that has anencephaly, a condition that precludes its survival for more than a few days outside the womb. No civilised society would want to force a young woman in these circumstances to bear a child against her own clearly stated wishes. Most people will have assumed that since 1992, when the people voted to enshrine in the Constitution the freedom to travel for an abortion outside the jurisdiction, such a case could not arise. Yet, in the legislative vacuum that has been created and sustained by our political leaders, the law remains unclear and the bodies of vulnerable girls and women continue to be treated as legal battlegrounds.
In his ruling, Mr Justice McKechnie is rightly critical of the Health Service Executive for its failure to place Miss D's welfare at the heart of its response to her situation. The HSE, with its heavy-handed and ultimately contradictory approach to the case, deserves all the censure it gets. But it was merely doing what the State itself has done since the X case 15 years ago. Neither government nor the Oireachtas has lived up to its responsibility to women who find themselves faced with the painful predicament of crisis pregnancy. In his ruling on the X case, Mr Justice Niall McCarthy described the failure by the Oireachtas to legislate for the anti-abortion amendment added to the Constitution in 1983 as "no longer just unfortunate; it is inexcusable". A decade and a half on, that failure has become recklessly negligent.
Time and again, responsibility has been shirked. In 1992, the then government promised to legislate for the X case ruling if its own proposals on abortion were defeated in a referendum. In 1996, the Constitution review group recommended that legislation should be introduced to implement the X judgment, specifying the conditions under which abortion could be carried out lawfully in Ireland. In 2002, the Taoiseach Mr Ahern was again defeated on a proposal to roll back the X case, having promised legislation in the event of failure. Yet again, he simply walked away from the problem.
The alternative taoiseach Enda Kenny is promising to do likewise, committing himself not to introduce legislation on abortion. It is a strange political culture in which aspirant leaders promise inactivity on an issue that can cause personal anguish for vulnerable citizens and make the law a source of disquiet and distress. In a mature society, citizens would have the right to expect better and political parties would recognise that awkward questions demand courageous answers.
The relief that most people will feel at yesterday's ruling on the D case in the High Court by Mr Justice Liam McKechnie must be tinged by anger. It is good to know that we do not live in a State in which the appropriate response to the tragic dilemma of a young girl in its care is to call the police and drag her through the courts. It is, however, depressing to realise that, in 2007, this is something that has to be argued over by five teams of lawyers.
The 17-year-old Miss D is 18 weeks pregnant with a baby that has anencephaly, a condition that precludes its survival for more than a few days outside the womb. No civilised society would want to force a young woman in these circumstances to bear a child against her own clearly stated wishes. Most people will have assumed that since 1992, when the people voted to enshrine in the Constitution the freedom to travel for an abortion outside the jurisdiction, such a case could not arise. Yet, in the legislative vacuum that has been created and sustained by our political leaders, the law remains unclear and the bodies of vulnerable girls and women continue to be treated as legal battlegrounds.
In his ruling, Mr Justice McKechnie is rightly critical of the Health Service Executive for its failure to place Miss D's welfare at the heart of its response to her situation. The HSE, with its heavy-handed and ultimately contradictory approach to the case, deserves all the censure it gets. But it was merely doing what the State itself has done since the X case 15 years ago. Neither government nor the Oireachtas has lived up to its responsibility to women who find themselves faced with the painful predicament of crisis pregnancy. In his ruling on the X case, Mr Justice Niall McCarthy described the failure by the Oireachtas to legislate for the anti-abortion amendment added to the Constitution in 1983 as "no longer just unfortunate; it is inexcusable". A decade and a half on, that failure has become recklessly negligent.
Time and again, responsibility has been shirked. In 1992, the then government promised to legislate for the X case ruling if its own proposals on abortion were defeated in a referendum. In 1996, the Constitution review group recommended that legislation should be introduced to implement the X judgment, specifying the conditions under which abortion could be carried out lawfully in Ireland. In 2002, the Taoiseach Mr Ahern was again defeated on a proposal to roll back the X case, having promised legislation in the event of failure. Yet again, he simply walked away from the problem.
The alternative taoiseach Enda Kenny is promising to do likewise, committing himself not to introduce legislation on abortion. It is a strange political culture in which aspirant leaders promise inactivity on an issue that can cause personal anguish for vulnerable citizens and make the law a source of disquiet and distress. In a mature society, citizens would have the right to expect better and political parties would recognise that awkward questions demand courageous answers.
Women Facing Crisis Pregnancy Have Right To Services In Ireland
Irish Times Thursday May 10th. Op-ed.
Miss D should have been able to have an abortion in a maternity teaching hospital here,
argues Rosie Toner
Another chapter in the abortion chronicles has concluded, for now. Having faced down protracted legal proceedings for the past 10 days, a young teenager can make arrangements to leave the State for a termination.
While the outcome of yesterday's High Court sitting offers some relief to Miss D, the sense of relief is most palpable at a political level. The election agenda has been spared. The issue that few politicians will champion has been dispensed with, for now.
But the lack of a realistic legislative framework on abortion is unsustainable. The legal challenges concerning Miss X in 1992, Miss C in 1997 and Miss D exemplify the inadequacy of the so-called Irish solution over two decades.
As a provider of non-directive pregnancy counselling and post-abortion services, the Irish Family Planning Association (IFPA) is acutely aware of the complexities women face in accessing termination services. For those with a diagnosis of fatal foetal anomaly, these complexities are further underscored.
The deliberations which dominated the High Court case concerned mainly the right to travel and the capacity of the Health Service Executive to determine this. The healthcare needs of the teenager rarely came to the fore. Miss D chose to terminate her pregnancy because of the inevitable demise of her baby, once born. In the interest of her health and potential future pregnancies, she should have been afforded a termination in an Irish teaching maternity hospital. This would have happened if she lived in Britain, France or in most other European Union member states.
With improvements in ultra-sound equipment in recent years, detection of fatal foetal anomalies has become more frequent. For any woman, such a diagnosis is traumatic and usually occurs later in pregnancy when medical testing for anomalies is conducted. In the main, their pregnancy starts out as much wanted and celebrated. The prospect of non-viability beyond birth shatters this.
After careful consideration - usually involving a partner, family or friend - women decide to continue the pregnancy until foetal demise or, more likely, they access a termination. At the IFPA, we provide counselling and information to many of these women before they travel.
Although abortion clinics in the UK are sympathetic to Irish women with fatal foetal anomalies, many recognise that their services are not always appropriate.
Emotional and family support services are not routinely available. Chaplaincy support for grieving women and their partners is absent. Funeral or burial services are difficult to arrange, if not impossible. The procedure can also be more complicated due to foetal defects and because it generally takes place later in pregnancy.
Critically, private clinics are unable to offer a seamless continuum of care which would result in the sharing of information with the woman's medical team in Ireland. This lack of continuity means that interventions to prevent the recurrence of risk in future pregnancies cannot be delivered.
If Miss D was able to access a termination in one of Ireland's maternity teaching hospitals, a post-mortem could be conducted. This test could determine the type of anencephaly suffered by the foetus. Based on this, the medical team could advise on her future healthcare. For example, if she intended to become pregnant again, they could recommend the appropriate intake of folic acid to maximise the chance of a healthy pregnancy.
Women presenting with fatal foetal anomalies should - we believe - have access to seamless long-term physical and emotional care by a specialist medical team, as a right. This will only happen if our politicians act in the best interests of these women by introducing legislation to provide for terminations in these circumstances.Maternity care providers would also need to offer specialised foetal medical services for women in this context.
Women who have used the IFPA's crisis pregnancy counselling services and access a termination based on their foetal anomaly have one thing in common: they wanted the procedure to be carried out in Ireland with the emotional support of their partners, family and friends around them. For some of the women finding out how to access a termination in the first instance has been a challenge. We continue to see women who have encountered emotional bullying and misinformation at the hands of rogue pregnancy counselling services that are allowed to operate in the State without any form of regulation.
Even the Catholic Church's pregnancy advisory service, whose counselling services are funded by the State, is allowed to flout its service level agreement with its funder. For two years, Cura - which only provides information on adoption and parenting options - has refused to pass on details to women about other services where they could secure information about termination services. Their funding remains intact.
Those who suffer are the women with a crisis pregnancy. The result is that some women travel for a termination later in pregnancy than they otherwise would because they encountered barriers in accessing information. It appears that when it comes to abortion, the politicians bury their heads on all matters.
The courts are not a suitable mechanism for girls or women to establish their level of access to termination services. In the future, nobody facing a crisis pregnancy should be subjected to the stress that Miss D has had to endure before the courts.
We elect politicians to create laws and establish rights. Whoever takes office when the 30th Dáil convenes in June, abortion should be on their agenda. With three impending cases before the European Court of Human Rights and the potential of new challenges in the domestic courts, the abortion issue will not go away.
Until, of course, it's dealt with.
Rosie Toner is director of counselling services at the Irish Family Planning Association.
Miss D should have been able to have an abortion in a maternity teaching hospital here,
argues Rosie Toner
Another chapter in the abortion chronicles has concluded, for now. Having faced down protracted legal proceedings for the past 10 days, a young teenager can make arrangements to leave the State for a termination.
While the outcome of yesterday's High Court sitting offers some relief to Miss D, the sense of relief is most palpable at a political level. The election agenda has been spared. The issue that few politicians will champion has been dispensed with, for now.
But the lack of a realistic legislative framework on abortion is unsustainable. The legal challenges concerning Miss X in 1992, Miss C in 1997 and Miss D exemplify the inadequacy of the so-called Irish solution over two decades.
As a provider of non-directive pregnancy counselling and post-abortion services, the Irish Family Planning Association (IFPA) is acutely aware of the complexities women face in accessing termination services. For those with a diagnosis of fatal foetal anomaly, these complexities are further underscored.
The deliberations which dominated the High Court case concerned mainly the right to travel and the capacity of the Health Service Executive to determine this. The healthcare needs of the teenager rarely came to the fore. Miss D chose to terminate her pregnancy because of the inevitable demise of her baby, once born. In the interest of her health and potential future pregnancies, she should have been afforded a termination in an Irish teaching maternity hospital. This would have happened if she lived in Britain, France or in most other European Union member states.
With improvements in ultra-sound equipment in recent years, detection of fatal foetal anomalies has become more frequent. For any woman, such a diagnosis is traumatic and usually occurs later in pregnancy when medical testing for anomalies is conducted. In the main, their pregnancy starts out as much wanted and celebrated. The prospect of non-viability beyond birth shatters this.
After careful consideration - usually involving a partner, family or friend - women decide to continue the pregnancy until foetal demise or, more likely, they access a termination. At the IFPA, we provide counselling and information to many of these women before they travel.
Although abortion clinics in the UK are sympathetic to Irish women with fatal foetal anomalies, many recognise that their services are not always appropriate.
Emotional and family support services are not routinely available. Chaplaincy support for grieving women and their partners is absent. Funeral or burial services are difficult to arrange, if not impossible. The procedure can also be more complicated due to foetal defects and because it generally takes place later in pregnancy.
Critically, private clinics are unable to offer a seamless continuum of care which would result in the sharing of information with the woman's medical team in Ireland. This lack of continuity means that interventions to prevent the recurrence of risk in future pregnancies cannot be delivered.
If Miss D was able to access a termination in one of Ireland's maternity teaching hospitals, a post-mortem could be conducted. This test could determine the type of anencephaly suffered by the foetus. Based on this, the medical team could advise on her future healthcare. For example, if she intended to become pregnant again, they could recommend the appropriate intake of folic acid to maximise the chance of a healthy pregnancy.
Women presenting with fatal foetal anomalies should - we believe - have access to seamless long-term physical and emotional care by a specialist medical team, as a right. This will only happen if our politicians act in the best interests of these women by introducing legislation to provide for terminations in these circumstances.Maternity care providers would also need to offer specialised foetal medical services for women in this context.
Women who have used the IFPA's crisis pregnancy counselling services and access a termination based on their foetal anomaly have one thing in common: they wanted the procedure to be carried out in Ireland with the emotional support of their partners, family and friends around them. For some of the women finding out how to access a termination in the first instance has been a challenge. We continue to see women who have encountered emotional bullying and misinformation at the hands of rogue pregnancy counselling services that are allowed to operate in the State without any form of regulation.
Even the Catholic Church's pregnancy advisory service, whose counselling services are funded by the State, is allowed to flout its service level agreement with its funder. For two years, Cura - which only provides information on adoption and parenting options - has refused to pass on details to women about other services where they could secure information about termination services. Their funding remains intact.
Those who suffer are the women with a crisis pregnancy. The result is that some women travel for a termination later in pregnancy than they otherwise would because they encountered barriers in accessing information. It appears that when it comes to abortion, the politicians bury their heads on all matters.
The courts are not a suitable mechanism for girls or women to establish their level of access to termination services. In the future, nobody facing a crisis pregnancy should be subjected to the stress that Miss D has had to endure before the courts.
We elect politicians to create laws and establish rights. Whoever takes office when the 30th Dáil convenes in June, abortion should be on their agenda. With three impending cases before the European Court of Human Rights and the potential of new challenges in the domestic courts, the abortion issue will not go away.
Until, of course, it's dealt with.
Rosie Toner is director of counselling services at the Irish Family Planning Association.
Wednesday, May 09, 2007
Alliance For Choice Says Irish Abortion Law Creates Distress And Suffering For Vulnerable Women
Today's decision to permit Miss 'D' to travel to England to terminate her pregnancy is the correct one but Alliance for Choice deplored the additional anxiety and stress that she has been forced to endure in the last two weeks.
The majority of Irish people believe that abortion is acceptable in some circumstances but successive governments have failed to legislate so that Irish women can have abortions safely and legally in a hospital here. They are forced to go to Britain and elsewhere, causing additional delay and anxiety for women who are already in difficulty. Many women do not even have this option, if they are constrained by poverty or immigration regulations or the misplaced zeal of HSE officials.
Spokesperson Dr. Mary Muldowney said:
"Alliance for Choice asks how many more young women will be traumatised before Irish law recognises their human right to access abortion services safely and legally in their own country. Most of the stress that surrounds abortion for women from this country relates to the barriers that the current legal situation has erected around women's ability to make choices based on what is right for them. Women in Ireland are forced to deal with economic, legal and social obstacles to medical procedures that should be their right in a fair and just health system."
It is time for Irish politicians to commit themselves to providing clear legal protection for young women faced with crisis pregnancies by setting a timetable for legislation to underpin the X judgement, to deal humanely with the issue of foetal abnormality and ultimately to call a referendum to remove the Eighth Amendment to the Constitution.
Denying women the right to make their own choices does not make the need for abortion go away.
theallianceforchoice@eircom.net
The majority of Irish people believe that abortion is acceptable in some circumstances but successive governments have failed to legislate so that Irish women can have abortions safely and legally in a hospital here. They are forced to go to Britain and elsewhere, causing additional delay and anxiety for women who are already in difficulty. Many women do not even have this option, if they are constrained by poverty or immigration regulations or the misplaced zeal of HSE officials.
Spokesperson Dr. Mary Muldowney said:
"Alliance for Choice asks how many more young women will be traumatised before Irish law recognises their human right to access abortion services safely and legally in their own country. Most of the stress that surrounds abortion for women from this country relates to the barriers that the current legal situation has erected around women's ability to make choices based on what is right for them. Women in Ireland are forced to deal with economic, legal and social obstacles to medical procedures that should be their right in a fair and just health system."
It is time for Irish politicians to commit themselves to providing clear legal protection for young women faced with crisis pregnancies by setting a timetable for legislation to underpin the X judgement, to deal humanely with the issue of foetal abnormality and ultimately to call a referendum to remove the Eighth Amendment to the Constitution.
Denying women the right to make their own choices does not make the need for abortion go away.
theallianceforchoice@eircom.net
Choice Ireland Calls For No More 'X' 'C' or 'D' Cases.
Choice Ireland calls for no more “X” “C” or “D” Cases
Press release in response to the verdict on the "Miss D" case
Choice Ireland commends today's verdict in favour of “Miss D”s right to travel for an abortion. Nevertheless we are appalled by the treatment “Miss D” has received at the hands of our state.Choice Ireland commends today's verdict in favour of “Miss D”s right to travel for an abortion. Nevertheless we are appalled by the treatment “Miss D” has received at the hands of our state. It is unacceptable that yet another woman has been dragged through the courts in order to vindicate her rights and her choice.
It is also unacceptable that “Miss D” will now be forced overseas in order to exercise her choice to have an abortion.Today is not a joyful day for Miss D. While she has finally gained the right to exercise her choice, she had to go through a lot to get to this point. She now has to face into the reality of an abortion. She must do this overseas away from the support of family and friends. She must then return to this country which, because it ignores the problem, has no proper free post-abortion care or counselling available.
This is the situation for thousands of Irish women.The abortion issue must be resolved. Without legislation to clarify the ambiguous legal position with regard to abortion, women like “Miss D” (as Miss “X” and Miss “C” before her) will continue to be dragged through the courts. Meanwhile due to the State's failure to face the reality of tragic crisis pregnancy, 17 Irish women a day have the anguish of their situation compounded by the financial and emotional burden of being forced overseas for an abortion. The current position represents a "head in the sand" approach to a reality faced by thousands of women in Ireland each year and is incompatible with any notion of respect for women.
Choice Ireland are today calling for no more "X", "C" or "D" cases, for the repeal of the 8th amendment and for free, safe and legal abortion to be made available in Ireland.
We are calling for:- accurate information on all crisis pregnancy options
-legislation regulating information provided by crisis pregnancy centres
-immediate legislation for the "X" and "C" cases-free access to multiple forms of contraception including the morning after pill-free and legal abortion on demand
-practical support for women seeking abortion-an end to the stigma surrounding abortion, sexual health and contraceptive needs-increased support for single and low
-income parents-increased protection for working mothers
-free access to quality childcare-an end to the stigma surrounding single parenthood
-choice in the methods of childbirth-creation of more feminist health centres-proper sex education
Contact:choiceireland@gmail.com
http://www.choiceireland.blogspot.com
Press release in response to the verdict on the "Miss D" case
Choice Ireland commends today's verdict in favour of “Miss D”s right to travel for an abortion. Nevertheless we are appalled by the treatment “Miss D” has received at the hands of our state.Choice Ireland commends today's verdict in favour of “Miss D”s right to travel for an abortion. Nevertheless we are appalled by the treatment “Miss D” has received at the hands of our state. It is unacceptable that yet another woman has been dragged through the courts in order to vindicate her rights and her choice.
It is also unacceptable that “Miss D” will now be forced overseas in order to exercise her choice to have an abortion.Today is not a joyful day for Miss D. While she has finally gained the right to exercise her choice, she had to go through a lot to get to this point. She now has to face into the reality of an abortion. She must do this overseas away from the support of family and friends. She must then return to this country which, because it ignores the problem, has no proper free post-abortion care or counselling available.
This is the situation for thousands of Irish women.The abortion issue must be resolved. Without legislation to clarify the ambiguous legal position with regard to abortion, women like “Miss D” (as Miss “X” and Miss “C” before her) will continue to be dragged through the courts. Meanwhile due to the State's failure to face the reality of tragic crisis pregnancy, 17 Irish women a day have the anguish of their situation compounded by the financial and emotional burden of being forced overseas for an abortion. The current position represents a "head in the sand" approach to a reality faced by thousands of women in Ireland each year and is incompatible with any notion of respect for women.
Choice Ireland are today calling for no more "X", "C" or "D" cases, for the repeal of the 8th amendment and for free, safe and legal abortion to be made available in Ireland.
We are calling for:- accurate information on all crisis pregnancy options
-legislation regulating information provided by crisis pregnancy centres
-immediate legislation for the "X" and "C" cases-free access to multiple forms of contraception including the morning after pill-free and legal abortion on demand
-practical support for women seeking abortion-an end to the stigma surrounding abortion, sexual health and contraceptive needs-increased support for single and low
-income parents-increased protection for working mothers
-free access to quality childcare-an end to the stigma surrounding single parenthood
-choice in the methods of childbirth-creation of more feminist health centres-proper sex education
Contact:choiceireland@gmail.com
http://www.choiceireland.blogspot.com
High Court Grants 'Miss D' Right To Travel
Irish Times Breaking News.
Last Updated: 09/05/2007 15:22
High Court grants 'Miss D' right to travel
The High Court today granted a pregnant 17-year-old girl in care the right to travel to the UK for an abortion. The girl, known as Miss D, is almost 18 weeks pregnant with a baby with a major brain defect.
In a ruling issued this afternoon the court said that Miss D can travel outside of the country for an abortion.
Mr Justice Liam McKechnie ruled there is no statutory or constitutional impediment against allowing her to leave the country for an abortion.
The HSE had insisted she required a court order to do so but District Court Judge Flann Brennan refused its application last Saturday to make that order on grounds that this would be a failure to vindicate the constitutional right to life of the unborn.
Miss D wished to have her baby until she learned on April 23rd last that it has anencephaly, a condition where a major part of the brain is missing and where it has a prognosis of three days survival after birth.
In her proceedings, Miss D wanted the court to rule the HSE cannot restrain her from travelling. The HSE got leave from the High Court on Sunday to bring the second set of proceedings challenging the District Court's refusal to make an order that it is in the best interests of her welfare to allow her travel.
On Monday, Mr Justice McKechnie said he could not give an immediate decision, as requested by the HSE, on whether Miss D could travel or not as the case had implications but he would give his decision at 2pm today.
Gerard Durcan SC, for the HSE, said the constitutional provision protecting the right to life of the unborn had to be read together with the right to travel amendment to the Constitution approved by the people. The people had decided that, "whatever other way you vindicate the rights of the unborn, you do not do it by restricting the freedom to travel".
Lawyers for the State argued the case is not about the right to life of the unborn but about the right to travel. Children had constitutional rights from day one and "those rights are not delivered to them by courier on their 18th birthday", Donal O'Donnell SC said.
While agreeing there was no law under which Miss D could be restrained from travelling for an abortion, James Connolly SC, for the unborn, said no State agency should facilitate or fund such travel and the courts should not be "some form of licensing body for abortions".
Miss D's baby is a live foetus entitled to the constitutional protection for the unborn and the fact that it cannot survive after birth "is irrelevant", he said.
Today Justice McKechnie ruled the girl was now free to travel to the UK for the purpose of terminating her pregnancy.
Last Updated: 09/05/2007 15:22
High Court grants 'Miss D' right to travel
The High Court today granted a pregnant 17-year-old girl in care the right to travel to the UK for an abortion. The girl, known as Miss D, is almost 18 weeks pregnant with a baby with a major brain defect.
In a ruling issued this afternoon the court said that Miss D can travel outside of the country for an abortion.
Mr Justice Liam McKechnie ruled there is no statutory or constitutional impediment against allowing her to leave the country for an abortion.
The HSE had insisted she required a court order to do so but District Court Judge Flann Brennan refused its application last Saturday to make that order on grounds that this would be a failure to vindicate the constitutional right to life of the unborn.
Miss D wished to have her baby until she learned on April 23rd last that it has anencephaly, a condition where a major part of the brain is missing and where it has a prognosis of three days survival after birth.
In her proceedings, Miss D wanted the court to rule the HSE cannot restrain her from travelling. The HSE got leave from the High Court on Sunday to bring the second set of proceedings challenging the District Court's refusal to make an order that it is in the best interests of her welfare to allow her travel.
On Monday, Mr Justice McKechnie said he could not give an immediate decision, as requested by the HSE, on whether Miss D could travel or not as the case had implications but he would give his decision at 2pm today.
Gerard Durcan SC, for the HSE, said the constitutional provision protecting the right to life of the unborn had to be read together with the right to travel amendment to the Constitution approved by the people. The people had decided that, "whatever other way you vindicate the rights of the unborn, you do not do it by restricting the freedom to travel".
Lawyers for the State argued the case is not about the right to life of the unborn but about the right to travel. Children had constitutional rights from day one and "those rights are not delivered to them by courier on their 18th birthday", Donal O'Donnell SC said.
While agreeing there was no law under which Miss D could be restrained from travelling for an abortion, James Connolly SC, for the unborn, said no State agency should facilitate or fund such travel and the courts should not be "some form of licensing body for abortions".
Miss D's baby is a live foetus entitled to the constitutional protection for the unborn and the fact that it cannot survive after birth "is irrelevant", he said.
Today Justice McKechnie ruled the girl was now free to travel to the UK for the purpose of terminating her pregnancy.
Miss D Can Travel For An Abortion.
RTE BREAKING NEWS.
Miss D can travel for abortion: Court Wednesday, 9 May 2007 19:04
The High Court has ruled there is nothing to prevent a 17-year-old girl in the care of the Health Service Executive from travelling abroad for an abortion.
The girl, known as Miss D, is four months pregnant with a child who cannot survive after birth.
Mr Justice Liam McKechnie also criticised the HSE for its actions after the girl told her social worker she was pregnant.
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He said he firmly and unequivocally held the view that there was no statutory or constitutional impediment to Miss D travelling for the purposes of terminating her pregnancy, if that was what she wanted.
He said this case was not about abortion; it was about the right to travel.
He spoke of Miss D's devastation on seeing on an ultrasound scan that the child she was carrying had no head. The foetus is suffering from anencephaly, a condition where a major part of the brain is missing.
And he said Miss D had showed courage, integrity and maturity and had also displayed sound moral judgment by refusing to say she was suicidal when she was not.
He said it was likely that the HSE had tried to shoehorn her case into the grounds set out in the X case - that abortion is only legal if the mother's life is at risk or if she is suicidal.
And he said it was likely the HSE had done this to avoid having to make any public or controversial decision.
There was no law allowing the HSE to prevent her from travelling he said and no law stating that she needed the active permission of the district court to go.
Miss D was not in court for the ruling.
Story from RTÉ News:http://rte.ie/news/2007/0509/abortion.html
Miss D can travel for abortion: Court Wednesday, 9 May 2007 19:04
The High Court has ruled there is nothing to prevent a 17-year-old girl in the care of the Health Service Executive from travelling abroad for an abortion.
The girl, known as Miss D, is four months pregnant with a child who cannot survive after birth.
Mr Justice Liam McKechnie also criticised the HSE for its actions after the girl told her social worker she was pregnant.
Advertisement
He said he firmly and unequivocally held the view that there was no statutory or constitutional impediment to Miss D travelling for the purposes of terminating her pregnancy, if that was what she wanted.
He said this case was not about abortion; it was about the right to travel.
He spoke of Miss D's devastation on seeing on an ultrasound scan that the child she was carrying had no head. The foetus is suffering from anencephaly, a condition where a major part of the brain is missing.
And he said Miss D had showed courage, integrity and maturity and had also displayed sound moral judgment by refusing to say she was suicidal when she was not.
He said it was likely that the HSE had tried to shoehorn her case into the grounds set out in the X case - that abortion is only legal if the mother's life is at risk or if she is suicidal.
And he said it was likely the HSE had done this to avoid having to make any public or controversial decision.
There was no law allowing the HSE to prevent her from travelling he said and no law stating that she needed the active permission of the district court to go.
Miss D was not in court for the ruling.
Story from RTÉ News:http://rte.ie/news/2007/0509/abortion.html
Psychologists for Choice Welcome Decision But Express Concern Over Continuing Ordeal Of Miss D.
FOR IMMEDIATE RELEASE
PRESS RELEASE.
Psychologists for Choice wish to express its concern at the handling of this case both by the HSE and the judicial system, which has effectively tried to force a young and vulnerable woman to complete a pregnancy that is itself traumatic and potentially dangerous.
The trauma of this pregnancy and its associated risks, especially for such a young person has been addressed by an approach which far from supporting her in such a crisis has compounded the trauma by subjecting this young woman to psychiatric assessment and preventing her freedom of movement.
We welcome first reports that that Mr Justice McKechnie has made a ruling enabling Miss D to travel.Miss D now needs and deserves compassion and understanding provided in a non-judgemental and supportive manner, in other words, proper medical and psychological support.
Unfortunately this support is impossible to provide to any pregnant woman for as long as there is a failure to properly legislate for travel, information and abortion services in specific circumstances as voted for by the people in the last two referenda.
The Leaders of the Political Parties must now clarify how they intend to legislate for this matter in the forthcoming General Election.
psychologistsforchoice@eircom.net
Geraldine Moane PhD
Senior Lecturer
School of Psychology
University College Dublin
Belfield Dublin 4
PRESS RELEASE.
Psychologists for Choice wish to express its concern at the handling of this case both by the HSE and the judicial system, which has effectively tried to force a young and vulnerable woman to complete a pregnancy that is itself traumatic and potentially dangerous.
The trauma of this pregnancy and its associated risks, especially for such a young person has been addressed by an approach which far from supporting her in such a crisis has compounded the trauma by subjecting this young woman to psychiatric assessment and preventing her freedom of movement.
We welcome first reports that that Mr Justice McKechnie has made a ruling enabling Miss D to travel.Miss D now needs and deserves compassion and understanding provided in a non-judgemental and supportive manner, in other words, proper medical and psychological support.
Unfortunately this support is impossible to provide to any pregnant woman for as long as there is a failure to properly legislate for travel, information and abortion services in specific circumstances as voted for by the people in the last two referenda.
The Leaders of the Political Parties must now clarify how they intend to legislate for this matter in the forthcoming General Election.
psychologistsforchoice@eircom.net
Geraldine Moane PhD
Senior Lecturer
School of Psychology
University College Dublin
Belfield Dublin 4
Doctors for Choice Call For Miss D To Be Allowed Therapeutic Abortion In Ireland
Doctors for Choice today welcome the decision of the High Court to allow Miss D travel.
'We would urge that Miss D be allowed have a therepeutic abortion in Ireland
as soon as is possible. Failing that, the HSE should fund Miss D's termination
on an E112 form without delay' said Dr Juliet Bressan of Doctors for Choice
'We condemn the process whereby Miss D has had to suffer a week long trial in order
to receive the medical attention that she needs' she added.
We call upon the political parties to ensure that adequate legislation is urgently put in place,
to ensure that no woman is ever to forced through this kind of humiliation again.
We further call upon the Minister for Health to direct that the Health Service
Executive now maintains a protocol of management which protects the rights
of women to have terminations for lethal anomaly in Ireland, and without judgement.
Dr Juliet Bressan
Dr Mary Favier
doctorsforchoice@eircom.net
'We would urge that Miss D be allowed have a therepeutic abortion in Ireland
as soon as is possible. Failing that, the HSE should fund Miss D's termination
on an E112 form without delay' said Dr Juliet Bressan of Doctors for Choice
'We condemn the process whereby Miss D has had to suffer a week long trial in order
to receive the medical attention that she needs' she added.
We call upon the political parties to ensure that adequate legislation is urgently put in place,
to ensure that no woman is ever to forced through this kind of humiliation again.
We further call upon the Minister for Health to direct that the Health Service
Executive now maintains a protocol of management which protects the rights
of women to have terminations for lethal anomaly in Ireland, and without judgement.
Dr Juliet Bressan
Dr Mary Favier
doctorsforchoice@eircom.net
Irish Family Planning Association Comment On Outcome Of High Court Ruling in 'Miss D' Case
IRISH FAMILY PLANNING ASSOCIATION COMMENT ON OUTCOME OF HIGH COURT RULING IN ‘MISS D’ CASE
The Irish Family Planning Association has said that today’s High Court ruling in the Miss D case was welcome, in so far as the girl at the centre of the case could now commence arrangements for a termination outside the State.
The IFPA – which offers a non-directive pregnancy counselling service and information on all options – said that, from the outset, the 17 year-old at the centre of the case should not have had to endure 10 days of protracted court proceedings to establish her right to travel for a termination. It said that the proceedings had delayed her access to a termination, as well as causing undue stress to a girl already dealing with the traumatic diagnosis of a lethal foetal anomaly.
It said that the failure of successive Governments to legislate for abortion was the singular reason behind the necessity of Miss D having to take her case to the High Court.
The IFPA warned that while today’s High Court decision offered relief on the abortion issue for the body politic, it was unacceptable that a situation persisted whereby there is no proper legal framework on abortion in Ireland.
This gap – if left unaddressed by the next Government – will mean that other cases involving girls and women in a crisis pregnancy situation would inevitably come before the courts for resolution.
It said that the courts were not the appropriate mechanism to deal with abortion in Ireland. Political leadership is now required in light of this latest case. Each political party should indicate how it intends to provide a legislative framework on abortion in advance of the general election, it added.
ENDS.
The Irish Family Planning Association has said that today’s High Court ruling in the Miss D case was welcome, in so far as the girl at the centre of the case could now commence arrangements for a termination outside the State.
The IFPA – which offers a non-directive pregnancy counselling service and information on all options – said that, from the outset, the 17 year-old at the centre of the case should not have had to endure 10 days of protracted court proceedings to establish her right to travel for a termination. It said that the proceedings had delayed her access to a termination, as well as causing undue stress to a girl already dealing with the traumatic diagnosis of a lethal foetal anomaly.
It said that the failure of successive Governments to legislate for abortion was the singular reason behind the necessity of Miss D having to take her case to the High Court.
The IFPA warned that while today’s High Court decision offered relief on the abortion issue for the body politic, it was unacceptable that a situation persisted whereby there is no proper legal framework on abortion in Ireland.
This gap – if left unaddressed by the next Government – will mean that other cases involving girls and women in a crisis pregnancy situation would inevitably come before the courts for resolution.
It said that the courts were not the appropriate mechanism to deal with abortion in Ireland. Political leadership is now required in light of this latest case. Each political party should indicate how it intends to provide a legislative framework on abortion in advance of the general election, it added.
ENDS.
High Court To Make Miss D Decision
RTE BREAKING NEWS
High Court to make Miss D decision Wednesday, 9 May 2007 11:08
The High Court will decide this afternoon whether or not a 17-year-old girl in the care of the Health Service Executive can travel abroad for an abortion.
The girl, known as Miss D, is four months pregnant with a child who will not survive more than a couple of days after he or she is born.
It is more than a fortnight since Miss D found out that her baby is suffering from anencephaly, a condition which is causing its brain not to develop properly.
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The teenager has been at the centre of an increasingly complicated legal battle since she decided she wanted to travel for an abortion.
She is in the care of the HSE, which says she cannot travel without court permission.
The HSE now wants the High Court to make a declaration on her right to travel.
Miss D's legal team as well as lawyers for her mother and the State say she does not need court permission to travel abroad.
Lawyers representing the unborn claim the foetus being carried by Miss D is entitled to constitutional protection. They say it would not be legal for her to have an abortion under Irish law.
However, they say there is no law stopping her from travelling abroad.
Mr Justice Liam McKechnie's judgment could have significant implications for the law governing children in care, as well as that relating to abortion. He is due to give his ruling at 2pm this afternoon.
Story from RTÉ News:http://rte.ie/news/2007/0509/abortion.html
High Court to make Miss D decision Wednesday, 9 May 2007 11:08
The High Court will decide this afternoon whether or not a 17-year-old girl in the care of the Health Service Executive can travel abroad for an abortion.
The girl, known as Miss D, is four months pregnant with a child who will not survive more than a couple of days after he or she is born.
It is more than a fortnight since Miss D found out that her baby is suffering from anencephaly, a condition which is causing its brain not to develop properly.
Advertisement
The teenager has been at the centre of an increasingly complicated legal battle since she decided she wanted to travel for an abortion.
She is in the care of the HSE, which says she cannot travel without court permission.
The HSE now wants the High Court to make a declaration on her right to travel.
Miss D's legal team as well as lawyers for her mother and the State say she does not need court permission to travel abroad.
Lawyers representing the unborn claim the foetus being carried by Miss D is entitled to constitutional protection. They say it would not be legal for her to have an abortion under Irish law.
However, they say there is no law stopping her from travelling abroad.
Mr Justice Liam McKechnie's judgment could have significant implications for the law governing children in care, as well as that relating to abortion. He is due to give his ruling at 2pm this afternoon.
Story from RTÉ News:http://rte.ie/news/2007/0509/abortion.html
Politicians Should Leave Abortion Issue To The Experts- Women
Steven King The Irish Examiner Wednesday May 9th 2007
Charles Haughey was on to something when he claimed election manifestos had a 'Marxian ring about them'. Thirty years on from the first (disastrous) Fianna Fáil manifesto, the 2007 edition stretches to 153 pages. There are policies on this and policies on that, all in the most mind-numbing detail- for a country of only four million people.
What stands out is not some brilliant new brainwave. No, what stands out is the omission of a single sentence on the issue that has most tortured the modern Irish state. I mean of course, abortion.
I have some little experience of drafting election manifestos, and great fun it is too. The drafter has an opportunity to slip in his or her pet scheme. Then there is the wait to see if the polititicians spot it, dispute it and draw a line through it- or if it goes on to be party policy.
Needless to say, I knew better than to try to insert anything on the divisive subject of abortion. So amI being hypocritical if I criticise Fianna Fáil? I don't think so. If and when legislation on abortion becomes unavoidable, there will be a Fianna Fáil policy and every TD will be expected to vote according to instructions from the chief whip. And woe betide anyone who disobeys that instruction. In Fianna Fáil, unlike most Northern parties, there are no 'free votes'- opportunities to vote according to conscience- or very few. But if there is a Fianna Fáil position, what is it? Voters are given no clue. The same goes for Fine Gael, the Greens and Ireland's avowed 'liberal' party, the PD's.
The newspapers and the airwaves are filled with argument and counter-argument about the rights and freedoms of 17-year-old Miss D, who wishes to travel to England to terminate her pregnancy because the foetus is fatally brain damaged. At the very same time, most of the parties waffle on at length about marine policy but are afraid to say anything about an issue that affects thousands of Irish women every year.
Actually that is being kind. Some concede privately that Irish abortion law is, at best, deficient and, at worst, cruel. But they know- or suspect- that to suggest bringing Irish abortion law into some kind of line with European norms would be electoral suicide. They might be right- and are, therefore guilty only of cowardice.
But there is another group that is not afraid of clarifying the law- because it agrees with it. At one time, the Taoiseach's position was that the Oireachtas was duty-bound to legislate in the parliamentary term now ending to give effect to the ruling of the Supreme Court in the X case of 1992. The Government has not done so and neither Fianna Fáil nor the PD's,-if their manifestos are anything to go by- intend to do so during the life of the next Dáil if they can help it.
There is an honourable exception to this conspiracy of silence. Labour has given a manifesto commitment to bring the law into line with the 1992 judgment. Sinn Féin has not published its manifesto but, for a supposedly radical party, its record on the issue is pathetic. When the topic was debated in the Northern Ireland Assembly, Sinn Féin's health minister studiously avoided the chamber. For all Sinn Féin's talk of 'an Ireland of equals', the blunt fact is that the position is unequal- some doctors in the North would perform an abortion in cases like Miss D's, where a foetus has a congenital deformity.
Not that the North is a paragon of virtue. Abortion might be freely available, with medical consent everywhere else in Britain but not in the North. Rather, nurses in Liverpool have to deal with most of the situations created in Belfast and Derry. I have some experience of that particular inequality. In my last year at Queen's University, a Catholic friend said he and his girlfriend needed to borrow some money. We hadn't always seen eye to eye but I knew from his tone and expression that he didn't need the money for a crate of beer. They were desperate.
I didn't ask questions. I knew they were broke and that getting the families involved wasn't an option. I gave him the money. It was their decision. They were a pretty stable couple as student romances go. There was no question in my mind that he was forcing the issue: he was n't that sort of guy. The following week I bumped into his girlfriend and asked if she was OK. She looked at me earnestly and just said: 'Thanks Steven. We owe you'. No more was ever said about it.
That was the only time I have been confronted directly by the abortion dilemma. It wasn't one of the so-called hard cases. It was a social abortion. They were in their final year and didn't have the money for an abortion, let alone bring up a child. I have many regrets in life, but lending that money is not one of them. Many people will say I was wrong, but I should never have had to be involved. The job of legislators is to legislate; moralising is the churches prerogative. What kind of country is it that says abortion is permissable just so long as medical unpleasantness takes place in an out-of-sight destination?
The so-called pro-life lobby is nothing if not inventive. It knows that in today's Ireland, just because the Pope says something doesn't mean it's right. How can an 80-year-old celibate man understand what it is like to be forced to knowingly carry a terminally deformed foetus- sorry, unborn child- to full term only to see it die within days? No, the 21st century pro-life argument is all about caring for the emotional health of the mother. Abortion is wrong because it's psychologically scarring, the lobbyists say. That might very well be right.
But to pretend that 50,000 Irish women have been traumatised for life by the experience of availing of a termination in England seems implausible. Some, no doubt, have been. For others, it will have been been absolutely the right decision in the circumstances. For more, the pain was made worse by the experience of having to go to a strange clinic in another country without the support of family and friends.
The point is, the arguments for, and against abortion in any and all sets of circumstance are prefectly legitimate. But they should be aired in the pages of women's amgazines, not the High Court. If you believe a fertilised human egg is a baby, fine. But, if you don't, you should have an expectation that the State, within limits, will vindicate your decision.
Miss D's case is a particularly unfortunate one. But rather than pretending that the law- or worse, the Constitution- can deal with every possible range of circumstances, it's time politicians had the guts to say it's best left to the experts: women.
Charles Haughey was on to something when he claimed election manifestos had a 'Marxian ring about them'. Thirty years on from the first (disastrous) Fianna Fáil manifesto, the 2007 edition stretches to 153 pages. There are policies on this and policies on that, all in the most mind-numbing detail- for a country of only four million people.
What stands out is not some brilliant new brainwave. No, what stands out is the omission of a single sentence on the issue that has most tortured the modern Irish state. I mean of course, abortion.
I have some little experience of drafting election manifestos, and great fun it is too. The drafter has an opportunity to slip in his or her pet scheme. Then there is the wait to see if the polititicians spot it, dispute it and draw a line through it- or if it goes on to be party policy.
Needless to say, I knew better than to try to insert anything on the divisive subject of abortion. So amI being hypocritical if I criticise Fianna Fáil? I don't think so. If and when legislation on abortion becomes unavoidable, there will be a Fianna Fáil policy and every TD will be expected to vote according to instructions from the chief whip. And woe betide anyone who disobeys that instruction. In Fianna Fáil, unlike most Northern parties, there are no 'free votes'- opportunities to vote according to conscience- or very few. But if there is a Fianna Fáil position, what is it? Voters are given no clue. The same goes for Fine Gael, the Greens and Ireland's avowed 'liberal' party, the PD's.
The newspapers and the airwaves are filled with argument and counter-argument about the rights and freedoms of 17-year-old Miss D, who wishes to travel to England to terminate her pregnancy because the foetus is fatally brain damaged. At the very same time, most of the parties waffle on at length about marine policy but are afraid to say anything about an issue that affects thousands of Irish women every year.
Actually that is being kind. Some concede privately that Irish abortion law is, at best, deficient and, at worst, cruel. But they know- or suspect- that to suggest bringing Irish abortion law into some kind of line with European norms would be electoral suicide. They might be right- and are, therefore guilty only of cowardice.
But there is another group that is not afraid of clarifying the law- because it agrees with it. At one time, the Taoiseach's position was that the Oireachtas was duty-bound to legislate in the parliamentary term now ending to give effect to the ruling of the Supreme Court in the X case of 1992. The Government has not done so and neither Fianna Fáil nor the PD's,-if their manifestos are anything to go by- intend to do so during the life of the next Dáil if they can help it.
There is an honourable exception to this conspiracy of silence. Labour has given a manifesto commitment to bring the law into line with the 1992 judgment. Sinn Féin has not published its manifesto but, for a supposedly radical party, its record on the issue is pathetic. When the topic was debated in the Northern Ireland Assembly, Sinn Féin's health minister studiously avoided the chamber. For all Sinn Féin's talk of 'an Ireland of equals', the blunt fact is that the position is unequal- some doctors in the North would perform an abortion in cases like Miss D's, where a foetus has a congenital deformity.
Not that the North is a paragon of virtue. Abortion might be freely available, with medical consent everywhere else in Britain but not in the North. Rather, nurses in Liverpool have to deal with most of the situations created in Belfast and Derry. I have some experience of that particular inequality. In my last year at Queen's University, a Catholic friend said he and his girlfriend needed to borrow some money. We hadn't always seen eye to eye but I knew from his tone and expression that he didn't need the money for a crate of beer. They were desperate.
I didn't ask questions. I knew they were broke and that getting the families involved wasn't an option. I gave him the money. It was their decision. They were a pretty stable couple as student romances go. There was no question in my mind that he was forcing the issue: he was n't that sort of guy. The following week I bumped into his girlfriend and asked if she was OK. She looked at me earnestly and just said: 'Thanks Steven. We owe you'. No more was ever said about it.
That was the only time I have been confronted directly by the abortion dilemma. It wasn't one of the so-called hard cases. It was a social abortion. They were in their final year and didn't have the money for an abortion, let alone bring up a child. I have many regrets in life, but lending that money is not one of them. Many people will say I was wrong, but I should never have had to be involved. The job of legislators is to legislate; moralising is the churches prerogative. What kind of country is it that says abortion is permissable just so long as medical unpleasantness takes place in an out-of-sight destination?
The so-called pro-life lobby is nothing if not inventive. It knows that in today's Ireland, just because the Pope says something doesn't mean it's right. How can an 80-year-old celibate man understand what it is like to be forced to knowingly carry a terminally deformed foetus- sorry, unborn child- to full term only to see it die within days? No, the 21st century pro-life argument is all about caring for the emotional health of the mother. Abortion is wrong because it's psychologically scarring, the lobbyists say. That might very well be right.
But to pretend that 50,000 Irish women have been traumatised for life by the experience of availing of a termination in England seems implausible. Some, no doubt, have been. For others, it will have been been absolutely the right decision in the circumstances. For more, the pain was made worse by the experience of having to go to a strange clinic in another country without the support of family and friends.
The point is, the arguments for, and against abortion in any and all sets of circumstance are prefectly legitimate. But they should be aired in the pages of women's amgazines, not the High Court. If you believe a fertilised human egg is a baby, fine. But, if you don't, you should have an expectation that the State, within limits, will vindicate your decision.
Miss D's case is a particularly unfortunate one. But rather than pretending that the law- or worse, the Constitution- can deal with every possible range of circumstances, it's time politicians had the guts to say it's best left to the experts: women.
Letter To The Irish Times - Abortion Case and Miss D.
Letter to the Editor of the Irish Times Wednesday May 9th 2007.
Madam, - The use of the term "disabled" in the headline to Breda O'Brien's article on the D case
(May 5th), and the manner in which the subject has been addressed by several of your correspondents, need to be challenged.
It is, of course, understandable, that those who support the current draconian legal situation with regard to abortion would prefer to avoid discussion of the specific circumstances D finds herself in. This does not, however, require everyone else to ignore the facts and debate the issue entirely on their terms.
This case is not about making a judgment about the "quality of life" of a disabled child. It is not about those mothers to whom Breda O'Brien refers who do not regret carrying an anencephalic child to term (unlike D, one assumes, they would have had the benefit of a choice in the matter). Anencephaly is not a "disability" as the term is commonly understood. It is a severe abnormality which offers no chance of survival. Let us be quite clear on this: if a born human being suffered from a comparable condition, there would be no question over the right of the next of kin to withdraw life support, if that was their wish.
Those who oppose D's right to terminate her pregnancy are, in effect, condemning her to remain, against her wishes, a human life-support machine for the next five months - an entirely fruitless and cruel exercise, given the circumstances. The tone of smug moral sanctimony running through many of the letters printed on this are a little hard to take, coming, as they do, from people with no compunction about ignoring D's choice in the matter and treating her as a means, rather than an end.
- Yours, etc,
FRANCIS COLGAN, Sutton, Dublin 13.
Madam, - The use of the term "disabled" in the headline to Breda O'Brien's article on the D case
(May 5th), and the manner in which the subject has been addressed by several of your correspondents, need to be challenged.
It is, of course, understandable, that those who support the current draconian legal situation with regard to abortion would prefer to avoid discussion of the specific circumstances D finds herself in. This does not, however, require everyone else to ignore the facts and debate the issue entirely on their terms.
This case is not about making a judgment about the "quality of life" of a disabled child. It is not about those mothers to whom Breda O'Brien refers who do not regret carrying an anencephalic child to term (unlike D, one assumes, they would have had the benefit of a choice in the matter). Anencephaly is not a "disability" as the term is commonly understood. It is a severe abnormality which offers no chance of survival. Let us be quite clear on this: if a born human being suffered from a comparable condition, there would be no question over the right of the next of kin to withdraw life support, if that was their wish.
Those who oppose D's right to terminate her pregnancy are, in effect, condemning her to remain, against her wishes, a human life-support machine for the next five months - an entirely fruitless and cruel exercise, given the circumstances. The tone of smug moral sanctimony running through many of the letters printed on this are a little hard to take, coming, as they do, from people with no compunction about ignoring D's choice in the matter and treating her as a means, rather than an end.
- Yours, etc,
FRANCIS COLGAN, Sutton, Dublin 13.
High Court To Rule In 'Miss D' Abortion Case Today
High Court to rule in 'Miss D' abortion case (Ireland.com Breaking news)
The High Court will decide this afternoon whether a pregnant 17-year-old girl in care may travel to the UK for an abortion. Miss D is almost 18 weeks pregnant with a baby with a major brain defect.
Lawyers for the State, the unborn and the girl have all argued there is no law preventing Miss D travelling.
The HSE insists she requires a court order to do so but District Court Judge Flann Brennan refused its application last Saturday to make that order on grounds that this would be a failure to vindicate the constitutional right to life of the unborn.
Miss D wished to have her baby until she learned on April 23rd last that it has anencephaly, a condition where a major part of the brain is missing and where it has a prognosis of three days survival after birth.
Mr Justice Liam McKechnie now has to decide two sets of legal proceedings.
In her proceedings, Miss D wants the court to rule the HSE cannot restrain her from travelling. The HSE got leave from the High Court on Sunday to bring the second set of proceedings challenging the District Court's refusal to make an order that it is in the best interests of her welfare to allow her travel.
On Monday, Mr Justice McKechnie said he could not give an immediate decision, as requested by the HSE, on whether Miss D could travel or not as the case had implications but he would give his decision at 2pm today.
Gerard Durcan SC, for the HSE, said the constitutional provision protecting the right to life of the unborn had to be read together with the right to travel amendment to the Constitution approved by the people. The people had decided that, "whatever other way you vindicate the rights of the unborn, you do not do it by restricting the freedom to travel".
Lawyers for the State argued the case is not about the right to life of the unborn but about the right to travel. Children had constitutional rights from day one and "those rights are not delivered to them by courier on their 18th birthday", Donal O'Donnell SC said.
While agreeing there was no law under which Miss D could be restrained from travelling for an abortion, James Connolly SC, for the unborn, said no State agency should facilitate or fund such travel and the courts should not be "some form of licensing body for abortions".
Miss D's baby is a live foetus entitled to the constitutional protection for the unborn and the fact that it cannot survive after birth "is irrelevant", he said.
The High Court will decide this afternoon whether a pregnant 17-year-old girl in care may travel to the UK for an abortion. Miss D is almost 18 weeks pregnant with a baby with a major brain defect.
Lawyers for the State, the unborn and the girl have all argued there is no law preventing Miss D travelling.
The HSE insists she requires a court order to do so but District Court Judge Flann Brennan refused its application last Saturday to make that order on grounds that this would be a failure to vindicate the constitutional right to life of the unborn.
Miss D wished to have her baby until she learned on April 23rd last that it has anencephaly, a condition where a major part of the brain is missing and where it has a prognosis of three days survival after birth.
Mr Justice Liam McKechnie now has to decide two sets of legal proceedings.
In her proceedings, Miss D wants the court to rule the HSE cannot restrain her from travelling. The HSE got leave from the High Court on Sunday to bring the second set of proceedings challenging the District Court's refusal to make an order that it is in the best interests of her welfare to allow her travel.
On Monday, Mr Justice McKechnie said he could not give an immediate decision, as requested by the HSE, on whether Miss D could travel or not as the case had implications but he would give his decision at 2pm today.
Gerard Durcan SC, for the HSE, said the constitutional provision protecting the right to life of the unborn had to be read together with the right to travel amendment to the Constitution approved by the people. The people had decided that, "whatever other way you vindicate the rights of the unborn, you do not do it by restricting the freedom to travel".
Lawyers for the State argued the case is not about the right to life of the unborn but about the right to travel. Children had constitutional rights from day one and "those rights are not delivered to them by courier on their 18th birthday", Donal O'Donnell SC said.
While agreeing there was no law under which Miss D could be restrained from travelling for an abortion, James Connolly SC, for the unborn, said no State agency should facilitate or fund such travel and the courts should not be "some form of licensing body for abortions".
Miss D's baby is a live foetus entitled to the constitutional protection for the unborn and the fact that it cannot survive after birth "is irrelevant", he said.
Tuesday, May 08, 2007
Let Down By A Flawed Parliament
Let down by a flawed parliament The Irish Times Tuesday May 8th 2007
Fintan O'Toole
What, exactly, are we electing on May 24th? A government, of course, though none of us can be sure how our vote will translate into post-election deal-making.
The era of coalition politics has broken the direct link between the ballot box and the cabinet room. Parties can take a drubbing from the voters and still end up in government, as Fianna Fáil did in 1992.
Voters can opt for one party on the assumption that it will coalesce with another party and find that the outcome is entirely different. Small parties or even individual TDs with negligible national support can end up with a massively disproportionate influence.
So what we're really electing is a parliament. If democracy is to function, we need to know that legislators will do their jobs, that TDs will have enough self-respect to carry out at least their basic constitutional functions.
Unfortunately, voters can't even be sure of this. If proof were needed that we have a chronically dysfunctional parliament, it appeared in the High Court last week in the shameful spectacle of a bunch of middle-aged men arguing over the body of a 17-year-old girl pregnant with a foetus that cannot survive outside the womb. The case is grotesque on many levels, and one of them is the way our legislators have knowingly, consciously and deliberately refused to enact laws that the courts have found to be a constitutional necessity.
Almost 15 years ago, the then government press secretary, Seán Duignan, wrote in his diary about the defeat in a referendum of a proposed amendment to the constitutional provisions on abortion. Albert Reynolds's government had put forward a somewhat bizarre proposal to reverse the Supreme Court's judgment in the notorious X case.
It was too restrictive for liberals and not restrictive enough for the Catholic right and was soundly defeated. Duignan noted: "Substantive abortion amendment banjaxed by two to one margin . . . [Pádraig] Flynn says it means legislation required to bring in some form of limited abortion. Now, that's one for the méar fada!"
It would be hard to find a better summary in two sentences of the self-contempt of our legislators. It is recognised that a law is required but also perfectly understood that there is only one place for it: the méar fada - the long finger.
Fast forward almost a decade, to the launch of another campaign for another referendum intended to roll back the X case, this time by Bertie Ahern in February 2002. The Taoiseach talked about the need to strike a balance on the issue and suggested that "The proper place to strike that complex balance is in legislation - not in the Constitution . . . As the late Mr Justice Niall McCarthy stated in 1992: 'In the context of the eight years that have passed since the [1983 anti-abortion] amendment, the failure by the legislature to enact the appropriate legislation is no longer just unfortunate; it is inexcusable.' Nine years later, that remark has still greater force. That is why this Government has put so much emphasis on facing up to the issue and on creating the correct context for a legislative response."
He made it clear that if his proposed amendment was defeated, he would legislate for the X case judgment. When his proposal was indeed defeated, Bertie Ahern accepted that the next government would have to bring in legislation: "It will be the work of the next government to study and understand the results and implications of this referendum, and to act upon it. And above all, in doing so, the will of the sovereign people as expressed at the ballot box should be respected."
Twice in the last 15 years, the people have expressed their sovereign will by rejecting attempts to roll back the X case judgment. Twice they have done so on the basis of statements by taoisigh that, if their proposals were rejected, they would introduce legislation. Five years ago, the Taoiseach told us that the failure to legislate was even more inexcusable than it had been 10 years previously. But there has no been no legislation.
And here's the really depressing news. There will be no legislation if Enda Kenny becomes taoiseach either. The Fine Gael leader last month gave a commitment to the Irish Catholic newspaper that as taoiseach he would not legislate for the X case judgment. Labour is committed to doing so, and the parties have no agreed position, but it is hard to see how Enda Kenny could break such an unequivocal promise.
The electorate is thus faced with a choice between two taoisigh, one who is consciously guilty of an "inexcusable" failure, and the other who has explicitly assured us that he will, to borrow a phrase from Samuel Beckett, "fail again, fail better".
When the executive is so flagrantly unwilling to do its job, it is supposed to be the job of the Dáil to step in and make it do so. But ours is, historically, one of the weakest parliaments in the developed world. We could begin to change that. If we can't elect a government with the guts to do its job, we can at least elect TDs with the gumption and self-respect to do theirs
Fintan O'Toole
What, exactly, are we electing on May 24th? A government, of course, though none of us can be sure how our vote will translate into post-election deal-making.
The era of coalition politics has broken the direct link between the ballot box and the cabinet room. Parties can take a drubbing from the voters and still end up in government, as Fianna Fáil did in 1992.
Voters can opt for one party on the assumption that it will coalesce with another party and find that the outcome is entirely different. Small parties or even individual TDs with negligible national support can end up with a massively disproportionate influence.
So what we're really electing is a parliament. If democracy is to function, we need to know that legislators will do their jobs, that TDs will have enough self-respect to carry out at least their basic constitutional functions.
Unfortunately, voters can't even be sure of this. If proof were needed that we have a chronically dysfunctional parliament, it appeared in the High Court last week in the shameful spectacle of a bunch of middle-aged men arguing over the body of a 17-year-old girl pregnant with a foetus that cannot survive outside the womb. The case is grotesque on many levels, and one of them is the way our legislators have knowingly, consciously and deliberately refused to enact laws that the courts have found to be a constitutional necessity.
Almost 15 years ago, the then government press secretary, Seán Duignan, wrote in his diary about the defeat in a referendum of a proposed amendment to the constitutional provisions on abortion. Albert Reynolds's government had put forward a somewhat bizarre proposal to reverse the Supreme Court's judgment in the notorious X case.
It was too restrictive for liberals and not restrictive enough for the Catholic right and was soundly defeated. Duignan noted: "Substantive abortion amendment banjaxed by two to one margin . . . [Pádraig] Flynn says it means legislation required to bring in some form of limited abortion. Now, that's one for the méar fada!"
It would be hard to find a better summary in two sentences of the self-contempt of our legislators. It is recognised that a law is required but also perfectly understood that there is only one place for it: the méar fada - the long finger.
Fast forward almost a decade, to the launch of another campaign for another referendum intended to roll back the X case, this time by Bertie Ahern in February 2002. The Taoiseach talked about the need to strike a balance on the issue and suggested that "The proper place to strike that complex balance is in legislation - not in the Constitution . . . As the late Mr Justice Niall McCarthy stated in 1992: 'In the context of the eight years that have passed since the [1983 anti-abortion] amendment, the failure by the legislature to enact the appropriate legislation is no longer just unfortunate; it is inexcusable.' Nine years later, that remark has still greater force. That is why this Government has put so much emphasis on facing up to the issue and on creating the correct context for a legislative response."
He made it clear that if his proposed amendment was defeated, he would legislate for the X case judgment. When his proposal was indeed defeated, Bertie Ahern accepted that the next government would have to bring in legislation: "It will be the work of the next government to study and understand the results and implications of this referendum, and to act upon it. And above all, in doing so, the will of the sovereign people as expressed at the ballot box should be respected."
Twice in the last 15 years, the people have expressed their sovereign will by rejecting attempts to roll back the X case judgment. Twice they have done so on the basis of statements by taoisigh that, if their proposals were rejected, they would introduce legislation. Five years ago, the Taoiseach told us that the failure to legislate was even more inexcusable than it had been 10 years previously. But there has no been no legislation.
And here's the really depressing news. There will be no legislation if Enda Kenny becomes taoiseach either. The Fine Gael leader last month gave a commitment to the Irish Catholic newspaper that as taoiseach he would not legislate for the X case judgment. Labour is committed to doing so, and the parties have no agreed position, but it is hard to see how Enda Kenny could break such an unequivocal promise.
The electorate is thus faced with a choice between two taoisigh, one who is consciously guilty of an "inexcusable" failure, and the other who has explicitly assured us that he will, to borrow a phrase from Samuel Beckett, "fail again, fail better".
When the executive is so flagrantly unwilling to do its job, it is supposed to be the job of the Dáil to step in and make it do so. But ours is, historically, one of the weakest parliaments in the developed world. We could begin to change that. If we can't elect a government with the guts to do its job, we can at least elect TDs with the gumption and self-respect to do theirs
Even in the Four Courts, Tormentors Won't Let Her Be
Dearbhail McDonald The Irish Independent Tuesday May 8th.
AS if she wasn't under enough pressure. Pregnant, at 17, with a baby that has no prospects of survival.
Nappies bought and everything, Miss D, desperate to terminate her pregnancy, now finds herself at the epicentre of an intractable legal and moral war over her right to travel to England for an abortion.
By her own admission, the teenager has endured a tough upbringing.
After all, it was a failed overdose attempt, a cry to attract her mother's attention, that resulted in the doomed discovery that she was pregnant with a non-viable foetus. And being placed in the care of the State.
And the High Court battle she has waged to secure her right to travel abroad for a termination is already taking a physical toll, resulting in a day-long absence from court due to illness.
Yesterday morning Miss D returned to a 100-strong pro-choice protest outside Dublin's Four Courts.
But even the strongest warning from High Court Judge Liam McKechnie that the media cannot identify Miss D has failed to protect her from her tormentors, even within the safe and hallowed confines of the High Court.
In addition to the phalanx of lawyers and media present, so too is there a presence of pro-life and pro-choice campaigners.
And yesterday, both were keen to press their advantage with the vulnerable Miss D.
During the morning hearing, as Miss D rose to go to the bathroom, a male pro-life activist swooped on her mother, known as Miss A, and attempted to pass correspondence, including a newspaper article.
Miss D's mother attempted to quickly hide it from her daughter's view. The transaction did not go unnoticed and appalled those sitting in the vicinity of the young girl and her family.
Not to be outdone, the pro-choice movement also made direct contact with the girl during the afternoon, sitting as she strained to hear lawyers arguing her case.
Two female protesters, in their mid-twenties, entered the court and sat behind Miss D and her boyfriend.
After writing a letter, indicating their support for her predicament, they also submitted a rain-soaked petition of names and phone numbers they had received from members of the public.
Miss D weakly smiled at the two women after reading the petition and letter of support.
Mission accomplished, the two pro-choice campaigners triumphantly left court.
No court order, it seems, can place Miss D beyond the reach of those who wish to pursue her as she endures her horrific ordeal.
AS if she wasn't under enough pressure. Pregnant, at 17, with a baby that has no prospects of survival.
Nappies bought and everything, Miss D, desperate to terminate her pregnancy, now finds herself at the epicentre of an intractable legal and moral war over her right to travel to England for an abortion.
By her own admission, the teenager has endured a tough upbringing.
After all, it was a failed overdose attempt, a cry to attract her mother's attention, that resulted in the doomed discovery that she was pregnant with a non-viable foetus. And being placed in the care of the State.
And the High Court battle she has waged to secure her right to travel abroad for a termination is already taking a physical toll, resulting in a day-long absence from court due to illness.
Yesterday morning Miss D returned to a 100-strong pro-choice protest outside Dublin's Four Courts.
But even the strongest warning from High Court Judge Liam McKechnie that the media cannot identify Miss D has failed to protect her from her tormentors, even within the safe and hallowed confines of the High Court.
In addition to the phalanx of lawyers and media present, so too is there a presence of pro-life and pro-choice campaigners.
And yesterday, both were keen to press their advantage with the vulnerable Miss D.
During the morning hearing, as Miss D rose to go to the bathroom, a male pro-life activist swooped on her mother, known as Miss A, and attempted to pass correspondence, including a newspaper article.
Miss D's mother attempted to quickly hide it from her daughter's view. The transaction did not go unnoticed and appalled those sitting in the vicinity of the young girl and her family.
Not to be outdone, the pro-choice movement also made direct contact with the girl during the afternoon, sitting as she strained to hear lawyers arguing her case.
Two female protesters, in their mid-twenties, entered the court and sat behind Miss D and her boyfriend.
After writing a letter, indicating their support for her predicament, they also submitted a rain-soaked petition of names and phone numbers they had received from members of the public.
Miss D weakly smiled at the two women after reading the petition and letter of support.
Mission accomplished, the two pro-choice campaigners triumphantly left court.
No court order, it seems, can place Miss D beyond the reach of those who wish to pursue her as she endures her horrific ordeal.
No Law Stops Girl Seeking UK Abortion, Hearing Told
Ann O'Loughlin The Irish Independent Tuesday May 8th 2007
THE right to life of Miss D's unborn child continues until it is dead, the High Court heard yesterday.
The courts cannot engage in "a measuring exercise" about the capacity of the child prior to birth, a lawyer representing the unborn said.
"This is a live foetus, that is the beginning and end of it, and the fact it has no brain and cannot survive after birth is irrelevant," James Connolly, SC, said.
However, Mr Connolly said he agreed with lawyers for the Attorney General that there was no law under which Miss D could be prevented from travelling outside the jurisdiction for an abortion, which would not be permitted here.
While Miss D could not be stopped from travelling, the courts could not approve of that travel and a state agency such as the HSE could not fund it, he stressed.
Mr Connolly said that, in his view, the legal position following the enactment of the 'right to travel' amendment was that the courts cannot grant injunctions preventing women travelling abroad for abortions even where those abortions were not in accordance with the grounds for abortion permitted by the courts following the X case - where there was a real risk of suicide.
Because she was over 16, Miss D could make her own decisions about medical procedures and it was unclear that any State agency could stop a girl over 16 from travelling outside the State, Mr Connolly said.
Mr Connolly, who was appointed by the Attorney General last week to represent the rights of the unborn in the D case, said the right to life of Miss D's baby was entitled to protection under the Constitution. The Constitution, he submitted, did not permit the courts to measure the quality or duration of life of an unborn. Miss D's baby has the same rights between its birth and its death as any other child under the Constitution.
Mr Justice Liam McKechnie said he wished to stress the case was not about people with disabilities or about a child with profound neurological difficulties. "The undisputed evidence is that this baby will not live and that is what we are dealing with," he said.
The judge said that what was being protected in Article 40.3.3 of the Constitution - under which the State acknowledges the right to life of the unborn and guarantees to respect and vindicate that right - was the "right to life". Applying that provision to this case, there would be "no life".
Mr Connolly said he wanted to stress that this foetus "is active and has the right to life".
No foetus is capable of independent existence before 20 weeks but the fact that it wouldn't survive did not mean it was not an unborn, he added. The issue of when life began was not relevant, the issue was when it was dead. It was only then that the constitutional protections for the unborn did not apply. The Miss D case was not about the right to life of the unborn, it was about the right to travel and there was no law preventing 17-year-old Miss D travelling for an abortion, the State told the High Court.
"This is a free country where people have the liberty to do as they please unless there is a law restraining them," Donal O'Donnell, for the Attorney General, said. Only a totalitarian state required citizens to have permits to travel.
It was the State's case that only a court order could stop Miss D from travelling and such an order could only be made on the application of a parent.
Mr O'Donnell also said there was no dispute that Miss D was fully competent to make the decision to travel.
The fact she is under 18 years and in care does not limit her rights, he stressed. Children have constitutional rights from day one, "those rights are not delivered to them by courier on their 18th birthday", he stressed.
THE right to life of Miss D's unborn child continues until it is dead, the High Court heard yesterday.
The courts cannot engage in "a measuring exercise" about the capacity of the child prior to birth, a lawyer representing the unborn said.
"This is a live foetus, that is the beginning and end of it, and the fact it has no brain and cannot survive after birth is irrelevant," James Connolly, SC, said.
However, Mr Connolly said he agreed with lawyers for the Attorney General that there was no law under which Miss D could be prevented from travelling outside the jurisdiction for an abortion, which would not be permitted here.
While Miss D could not be stopped from travelling, the courts could not approve of that travel and a state agency such as the HSE could not fund it, he stressed.
Mr Connolly said that, in his view, the legal position following the enactment of the 'right to travel' amendment was that the courts cannot grant injunctions preventing women travelling abroad for abortions even where those abortions were not in accordance with the grounds for abortion permitted by the courts following the X case - where there was a real risk of suicide.
Because she was over 16, Miss D could make her own decisions about medical procedures and it was unclear that any State agency could stop a girl over 16 from travelling outside the State, Mr Connolly said.
Mr Connolly, who was appointed by the Attorney General last week to represent the rights of the unborn in the D case, said the right to life of Miss D's baby was entitled to protection under the Constitution. The Constitution, he submitted, did not permit the courts to measure the quality or duration of life of an unborn. Miss D's baby has the same rights between its birth and its death as any other child under the Constitution.
Mr Justice Liam McKechnie said he wished to stress the case was not about people with disabilities or about a child with profound neurological difficulties. "The undisputed evidence is that this baby will not live and that is what we are dealing with," he said.
The judge said that what was being protected in Article 40.3.3 of the Constitution - under which the State acknowledges the right to life of the unborn and guarantees to respect and vindicate that right - was the "right to life". Applying that provision to this case, there would be "no life".
Mr Connolly said he wanted to stress that this foetus "is active and has the right to life".
No foetus is capable of independent existence before 20 weeks but the fact that it wouldn't survive did not mean it was not an unborn, he added. The issue of when life began was not relevant, the issue was when it was dead. It was only then that the constitutional protections for the unborn did not apply. The Miss D case was not about the right to life of the unborn, it was about the right to travel and there was no law preventing 17-year-old Miss D travelling for an abortion, the State told the High Court.
"This is a free country where people have the liberty to do as they please unless there is a law restraining them," Donal O'Donnell, for the Attorney General, said. Only a totalitarian state required citizens to have permits to travel.
It was the State's case that only a court order could stop Miss D from travelling and such an order could only be made on the application of a parent.
Mr O'Donnell also said there was no dispute that Miss D was fully competent to make the decision to travel.
The fact she is under 18 years and in care does not limit her rights, he stressed. Children have constitutional rights from day one, "those rights are not delivered to them by courier on their 18th birthday", he stressed.
Court Rules Travel Would Violate Rights Of Unborn
Ann O'Loughlin The Irish Independent Tuesday May 8th 2007
A DISTRICT judge refused at the weekend to grant an order allowing the 17-year-old girl at the centre of the latest abortion controversy to travel to the UK for an abortion.
The new development in the case was outlined to a special sitting of the High Court yesterday.
In an extraordinary twist, it also emerged that the Health Service Executive, which only last week moved to stop the four months' pregnant teenager leaving the country, has mounted a High Court challenge to the district judge's refusal.
It was the third day of the legal challenge by the teen - known as Miss D - over the right to travel to the UK for an abortion.
She is four months' pregnant with a baby suffering from anencephaly, which means a major part of its brain is missing and it can only live at most three days after delivery.
At the outset yesterday, counsel for the HSE, Gerard Durkan, said an application had been made during in-camera proceedings by the HSE for a direction under the Child Care Act on whether it would be lawful for Miss D to travel to the UK for a termination.
Mr Justice Liam McKechnie ruled that because the application did not touch on the care order, a summary of the arguments and the decision could be given to the High Court in public yesterday. Mr Durkan said the application was made on Saturday morning and the district judge heard submissions from all parties before giving his decision.
The district judge said he was satisfied the granting of an order allowing the girl to travel to the UK in this case would amount to a failure of the court to vindicate the rights of the unborn. He was satisfied that the granting of such an order would be improper and unlawful.
Mr Durkan said the HSE position was that it was not in the interests of Miss D to stop her travelling to the UK for a termination.
In its submissions to the district court, the State said an order from that court was unnecessary. The girl's travel would be lawful, the State said.
On Saturday afternoon, Mr Durkan said the HSE considered the position and concluded the district judge was wrong in law in the way in which he dealt with the matter and his conclusion that Miss D's travel would not be lawful.
On Sunday, the HSE went to the High Court and was granted leave to seek a judicial review of the district judge's order.
On behalf of the HSE, Mr Durkan said it was their view that a court order was required to authorise the girl to travel; the HSE had taken those steps and tried to get the order but had not been successful.
He asked that this part of the case be dealt with immediatedly and the girl's right to travel clarified.
He said there was an "obvious stress" to Miss D.
Counsel for Miss D said they would now be seeking that the order of the district court be quashed as well as a declaration that the girl had a right to travel.
A DISTRICT judge refused at the weekend to grant an order allowing the 17-year-old girl at the centre of the latest abortion controversy to travel to the UK for an abortion.
The new development in the case was outlined to a special sitting of the High Court yesterday.
In an extraordinary twist, it also emerged that the Health Service Executive, which only last week moved to stop the four months' pregnant teenager leaving the country, has mounted a High Court challenge to the district judge's refusal.
It was the third day of the legal challenge by the teen - known as Miss D - over the right to travel to the UK for an abortion.
She is four months' pregnant with a baby suffering from anencephaly, which means a major part of its brain is missing and it can only live at most three days after delivery.
At the outset yesterday, counsel for the HSE, Gerard Durkan, said an application had been made during in-camera proceedings by the HSE for a direction under the Child Care Act on whether it would be lawful for Miss D to travel to the UK for a termination.
Mr Justice Liam McKechnie ruled that because the application did not touch on the care order, a summary of the arguments and the decision could be given to the High Court in public yesterday. Mr Durkan said the application was made on Saturday morning and the district judge heard submissions from all parties before giving his decision.
The district judge said he was satisfied the granting of an order allowing the girl to travel to the UK in this case would amount to a failure of the court to vindicate the rights of the unborn. He was satisfied that the granting of such an order would be improper and unlawful.
Mr Durkan said the HSE position was that it was not in the interests of Miss D to stop her travelling to the UK for a termination.
In its submissions to the district court, the State said an order from that court was unnecessary. The girl's travel would be lawful, the State said.
On Saturday afternoon, Mr Durkan said the HSE considered the position and concluded the district judge was wrong in law in the way in which he dealt with the matter and his conclusion that Miss D's travel would not be lawful.
On Sunday, the HSE went to the High Court and was granted leave to seek a judicial review of the district judge's order.
On behalf of the HSE, Mr Durkan said it was their view that a court order was required to authorise the girl to travel; the HSE had taken those steps and tried to get the order but had not been successful.
He asked that this part of the case be dealt with immediatedly and the girl's right to travel clarified.
He said there was an "obvious stress" to Miss D.
Counsel for Miss D said they would now be seeking that the order of the district court be quashed as well as a declaration that the girl had a right to travel.
Ordeal Goes On For Teen In Abortion Wrangle
Dearbhail McDonald The Irish Independent Tuesday May 8th 2007
THE teenage girl at the centre of the Miss D case will have to wait until tomorrow at the earliest before she knows if she can travel to England for an abortion.
Despite pleas for an urgent decision on the case - five days after it began - High Court Judge Liam McKechnie said yesterday it was not possible for him to reach an informed view straight away.
The judge insisted he was extremely conscious of the crucial issue of time, but warned that his decision in the case could have wide-ranging implications.
His warning came two days after a district court judge refused permission for the 17-year-old girl, whose baby will not survive after it is born, to travel to England for an abortion.
In an extraordinary development, it has emerged that the Health Service Executive, which originally moved to stop the girl from leaving the country, has itself mounted a High Court challenge to the refusal of the lower court.
Last Saturday, a district court judge refused to grant an order permitting the girl, who is 18 weeks pregnant, to leave Ireland to terminate her pregnancy. He said that to do so was improper and unlawful.
The judge, following a private hearing unattended by the media, said that if he allowed her to travel to the UK it would amount to the failure of the court to vindicate the rights of the unborn.
Yesterday, on the final day of legal submissions in the case, the High Court heard that the right to life of Miss D's unborn child continues until it is dead.
James Connolly, a senior counsel who is representing the rights of the unborn, said that her foetus has the same right to life as any other unborn child, even though it will not survive long after birth.
Mr Connolly, who was appointed by the Attorney General last week, said that Miss D's baby was a live foetus and the fact that it has no brain and cannot survive after birth is "irrelevant".
"This foetus is active and has the right to life," said Mr Connolly, who warned that any debate around the cognitive functions of unborn babies could lead to an unwelcome debate surrounding eugenics, or elective abortions for babies with foetal abnormalities.
"No foetus is capable of independent existence before twenty weeks, but the fact that it won't survive does not mean that it is unborn," he said.
Mr Justice McKechnie said he wished to stress that the case was not about people with disabilities or about a child with profound neurological difficulties.
"The undisputed evidence is that this baby will not live and that is what we are dealing with," he said.
Mr Connolly agreed with lawyers acting for the Attorney General that there was no law under which Miss D could be prevented travelling outside the country for an abortion.
While Miss D could not be stopped from travelling, Mr Connolly said the courts could not approve that travel and a State agency could not pay for it.
Lawyers acting on behalf of AG Rory Brady said that only a totalitarian State required citizens to have permits to travel.
"This is a free country where people have the liberty to do as they please unless there is a law restraining them," said Donal O'Donnell, counsel for the AG.
The HSE has denied that it has done a 'u-turn', insisting that at all times it required district court approval to release the girl from its care.
THE teenage girl at the centre of the Miss D case will have to wait until tomorrow at the earliest before she knows if she can travel to England for an abortion.
Despite pleas for an urgent decision on the case - five days after it began - High Court Judge Liam McKechnie said yesterday it was not possible for him to reach an informed view straight away.
The judge insisted he was extremely conscious of the crucial issue of time, but warned that his decision in the case could have wide-ranging implications.
His warning came two days after a district court judge refused permission for the 17-year-old girl, whose baby will not survive after it is born, to travel to England for an abortion.
In an extraordinary development, it has emerged that the Health Service Executive, which originally moved to stop the girl from leaving the country, has itself mounted a High Court challenge to the refusal of the lower court.
Last Saturday, a district court judge refused to grant an order permitting the girl, who is 18 weeks pregnant, to leave Ireland to terminate her pregnancy. He said that to do so was improper and unlawful.
The judge, following a private hearing unattended by the media, said that if he allowed her to travel to the UK it would amount to the failure of the court to vindicate the rights of the unborn.
Yesterday, on the final day of legal submissions in the case, the High Court heard that the right to life of Miss D's unborn child continues until it is dead.
James Connolly, a senior counsel who is representing the rights of the unborn, said that her foetus has the same right to life as any other unborn child, even though it will not survive long after birth.
Mr Connolly, who was appointed by the Attorney General last week, said that Miss D's baby was a live foetus and the fact that it has no brain and cannot survive after birth is "irrelevant".
"This foetus is active and has the right to life," said Mr Connolly, who warned that any debate around the cognitive functions of unborn babies could lead to an unwelcome debate surrounding eugenics, or elective abortions for babies with foetal abnormalities.
"No foetus is capable of independent existence before twenty weeks, but the fact that it won't survive does not mean that it is unborn," he said.
Mr Justice McKechnie said he wished to stress that the case was not about people with disabilities or about a child with profound neurological difficulties.
"The undisputed evidence is that this baby will not live and that is what we are dealing with," he said.
Mr Connolly agreed with lawyers acting for the Attorney General that there was no law under which Miss D could be prevented travelling outside the country for an abortion.
While Miss D could not be stopped from travelling, Mr Connolly said the courts could not approve that travel and a State agency could not pay for it.
Lawyers acting on behalf of AG Rory Brady said that only a totalitarian State required citizens to have permits to travel.
"This is a free country where people have the liberty to do as they please unless there is a law restraining them," said Donal O'Donnell, counsel for the AG.
The HSE has denied that it has done a 'u-turn', insisting that at all times it required district court approval to release the girl from its care.
Monday, May 07, 2007
State Lawyers Insist Miss D Does Not Require HSE Permission Or Court Order To Travel
Mary Carolan The Irish Times Tuesday May 8th 2007.
The Miss D case is not about the right to life of the unborn, it is about the right to travel and there is no law preventing 17-year-old Miss D travelling for an abortion, the State has told the High Court.
"This is a free country where people have the liberty to do as they please unless there is a law restraining them," Donal O'Donnell SC, for the Attorney General, said. Only "a totalitarian state" required citizens to have permits to travel.
It was the State's case that only a court order could stop Miss D from travelling and such an order could only be made on the application of a parent, he said.
Neither the HSE nor the Garda nor any care order could prevent Miss D exercising her right to travel, counsel added.
There was no law preventing her travelling or using her passport and the constitutional requirement to vindicate the right to life of the unborn was not a ground to restrain her travelling.
Mr O'Donnell also said there was no dispute that Miss D was fully competent to make the decision to travel.
The fact she is under-18 and in care does not limit her rights, he stressed. Children have constitutional rights from day one, "those rights are not delivered to them by courier on their 18th birthday", he said.
While children required someone to exercise those rights, principally their parents, the participation of parents in exercising those rights became less necessary as a child grew older, he added.
Sometimes the State had to do the job of exercising rights, he said. However, the making of a care order did not diminish the rights of a child. The "curiosity" of one argument of the HSE was that it was suggesting that the Child Care Act imposed a statutory restraint on the right to travel of children in care, a restraint which does not apply to children outside care. There was no such restraint.
The Child Care Act is "a patchwork quilt of laws and rights relating to children" and it was not the case that children have no rights until they are aged 18, he said. In this case, Miss D had, for example, exercised her right to bring the case and have it heard in public.
Mr O'Donnell, with Maurice Collins SC, said the first and foremost test in the case was to establish what piece of paper, what law, would require the Garda to exercise a power to restrain Miss D travelling. There was no such law.
The "total silence" in the HSE's submissions about the issue of the power of the Garda to restrain was unsurprising given what the Garda had said on April 26th about having no such power. It seemed self-evident the care order did not permit the Garda, either on their own initiative or at the direction of the HSE, to stop a person in care from travelling.
The HSE was not saying it could stop Miss D travelling but insisted she required a District Court order. That was the wrong starting point, counsel said. A person did not require authority to travel abroad. Rather, authority was required to restrain a person from travelling.
The Child Care Act did not deprive a person in care of the right to travel.
If there was any right to restrain travel, it was a parental right. There could not be a situation where the HSE could be put in a stronger situation than a parent, or where a child in care could be placed in weaker position than a child outside care.
The Child Care Act did provide for a health board to consent to medical treatment. It did not follow there was a negative prohibition on such treatment being carried out without HSE consent.
The fact the Child Care Act also provided that the HSE could consent to issue a passport for a child in care did not mean the child could not travel anywhere without the HSE's consent.
The Miss D case is not about the right to life of the unborn, it is about the right to travel and there is no law preventing 17-year-old Miss D travelling for an abortion, the State has told the High Court.
"This is a free country where people have the liberty to do as they please unless there is a law restraining them," Donal O'Donnell SC, for the Attorney General, said. Only "a totalitarian state" required citizens to have permits to travel.
It was the State's case that only a court order could stop Miss D from travelling and such an order could only be made on the application of a parent, he said.
Neither the HSE nor the Garda nor any care order could prevent Miss D exercising her right to travel, counsel added.
There was no law preventing her travelling or using her passport and the constitutional requirement to vindicate the right to life of the unborn was not a ground to restrain her travelling.
Mr O'Donnell also said there was no dispute that Miss D was fully competent to make the decision to travel.
The fact she is under-18 and in care does not limit her rights, he stressed. Children have constitutional rights from day one, "those rights are not delivered to them by courier on their 18th birthday", he said.
While children required someone to exercise those rights, principally their parents, the participation of parents in exercising those rights became less necessary as a child grew older, he added.
Sometimes the State had to do the job of exercising rights, he said. However, the making of a care order did not diminish the rights of a child. The "curiosity" of one argument of the HSE was that it was suggesting that the Child Care Act imposed a statutory restraint on the right to travel of children in care, a restraint which does not apply to children outside care. There was no such restraint.
The Child Care Act is "a patchwork quilt of laws and rights relating to children" and it was not the case that children have no rights until they are aged 18, he said. In this case, Miss D had, for example, exercised her right to bring the case and have it heard in public.
Mr O'Donnell, with Maurice Collins SC, said the first and foremost test in the case was to establish what piece of paper, what law, would require the Garda to exercise a power to restrain Miss D travelling. There was no such law.
The "total silence" in the HSE's submissions about the issue of the power of the Garda to restrain was unsurprising given what the Garda had said on April 26th about having no such power. It seemed self-evident the care order did not permit the Garda, either on their own initiative or at the direction of the HSE, to stop a person in care from travelling.
The HSE was not saying it could stop Miss D travelling but insisted she required a District Court order. That was the wrong starting point, counsel said. A person did not require authority to travel abroad. Rather, authority was required to restrain a person from travelling.
The Child Care Act did not deprive a person in care of the right to travel.
If there was any right to restrain travel, it was a parental right. There could not be a situation where the HSE could be put in a stronger situation than a parent, or where a child in care could be placed in weaker position than a child outside care.
The Child Care Act did provide for a health board to consent to medical treatment. It did not follow there was a negative prohibition on such treatment being carried out without HSE consent.
The fact the Child Care Act also provided that the HSE could consent to issue a passport for a child in care did not mean the child could not travel anywhere without the HSE's consent.
Right To Life 'Continues Until Death'
Mary Carolan The Irish Times Tuesday May 8th 2007
The right to life of Miss D's unborn child continues until it is dead and the courts cannot engage in "a measuring exercise" about the capacity of the child prior to birth, lawyers for the unborn told the High Court.
This is a live foetus, that is "the beginning and end of it", and the fact it has no brain and cannot survive after birth "is irrelevant", James Connolly SC said.
However, he agreed with lawyers for the Attorney General that there is no law under which Miss D can be prevented from travelling outside the jurisdiction for an abortion, even for one that would not be permitted here.
While Miss D cannot be stopped from travelling, the courts cannot approve of that travel and a State agency such as the Health Service Executive cannot fund it, he stressed.
Mr Connolly said that, in his view, the legal position following the enactment of the "right to travel" amendment was that the courts cannot grant injunctions preventing women travelling abroad for abortions even where those abortions were not in accordance with the grounds for abortion permitted by the courts following the X case - where there was a real risk of suicide.
Before the right to travel amendment the courts were, because of the provisions of Article 40.3.3 of the Constitution (the right to life amendment), required to balance the right to life of the unborn with the right to travel, he said. He agreed with remarks by the High Court in the C case that, while the courts could not stop a woman travelling for an abortion outside the grounds permitted here, they should also not be made into some form of "licensing authority for abortions".
Because she is over 16, Miss D may make her own decisions about medical procedures and it was unclear that any State agency could stop a girl over 16 from travelling outside the State, he said.
Mr Connolly, who was appointed by the Attorney General last week to represent the rights of the unborn in the D case, said the right to life of Miss D's baby was entitled to protection under the Constitution.
The Constitution, he submitted, did not permit the courts to measure the quality or duration of life of an unborn. Miss D's baby has the same rights between its birth and its death as any other child under the Constitution. The court should not get into "the dangerous area of eugenics" or into defining life by the measure of cognitive function.
Mr Justice Liam McKechnie said he wished to stress the case was not about people with disabilities or about a child with profound neurological difficulties. "The undisputed evidence is that this baby will not live and that is what we are dealing with."
He said that what was being protected in Article 40.3.3 of the Constitution - under which the State acknowledges the right to life of the unborn and guarantees to respect and vindicate that right - was the "right to life". Applying that provision to this case, there would be "no life", he said.
The right to life of Miss D's unborn child continues until it is dead and the courts cannot engage in "a measuring exercise" about the capacity of the child prior to birth, lawyers for the unborn told the High Court.
This is a live foetus, that is "the beginning and end of it", and the fact it has no brain and cannot survive after birth "is irrelevant", James Connolly SC said.
However, he agreed with lawyers for the Attorney General that there is no law under which Miss D can be prevented from travelling outside the jurisdiction for an abortion, even for one that would not be permitted here.
While Miss D cannot be stopped from travelling, the courts cannot approve of that travel and a State agency such as the Health Service Executive cannot fund it, he stressed.
Mr Connolly said that, in his view, the legal position following the enactment of the "right to travel" amendment was that the courts cannot grant injunctions preventing women travelling abroad for abortions even where those abortions were not in accordance with the grounds for abortion permitted by the courts following the X case - where there was a real risk of suicide.
Before the right to travel amendment the courts were, because of the provisions of Article 40.3.3 of the Constitution (the right to life amendment), required to balance the right to life of the unborn with the right to travel, he said. He agreed with remarks by the High Court in the C case that, while the courts could not stop a woman travelling for an abortion outside the grounds permitted here, they should also not be made into some form of "licensing authority for abortions".
Because she is over 16, Miss D may make her own decisions about medical procedures and it was unclear that any State agency could stop a girl over 16 from travelling outside the State, he said.
Mr Connolly, who was appointed by the Attorney General last week to represent the rights of the unborn in the D case, said the right to life of Miss D's baby was entitled to protection under the Constitution.
The Constitution, he submitted, did not permit the courts to measure the quality or duration of life of an unborn. Miss D's baby has the same rights between its birth and its death as any other child under the Constitution. The court should not get into "the dangerous area of eugenics" or into defining life by the measure of cognitive function.
Mr Justice Liam McKechnie said he wished to stress the case was not about people with disabilities or about a child with profound neurological difficulties. "The undisputed evidence is that this baby will not live and that is what we are dealing with."
He said that what was being protected in Article 40.3.3 of the Constitution - under which the State acknowledges the right to life of the unborn and guarantees to respect and vindicate that right - was the "right to life". Applying that provision to this case, there would be "no life", he said.
Deirdre De Barra's Letter In The Irish Times on the Abortion Case and Miss D.
LETTER TO THE EDITOR TUESDAY MAY 8TH 2007.
ABORTION CASE AND MISS D
Madam, - I think the HSE's interference with Miss D's right to travel to terminate her pregnancy, which is incompatible with life, is easily resolved by the State allowing her to be treated in Ireland.
My view is based on the position advanced by Ireland before the European Court of Human Rights in my case in 2005.
The State argued that an Irish court would not apply Article 40.3.3 of the Constitution "with remorseless logic" in an exceptional, compelling and tragic case like mine, where a woman is pregnant with a severely disabled foetus.
Miss D's case is equally exceptional, tragic and compelling. In my case the Government argued that I should have exhausted all legal remedies open to me in Ireland.
The European Court considered that I had an arguable case with sufficient prospects of success to have sought an interpretative judgment in Ireland.
I am deeply concerned that this very young woman, who has had to come to terms with a devastating antenatal diagnosis, is now undergoing court proceedings because of the inflexible position adopted by the HSE, which is responsible for protecting her best interests.
But I believe the courts should now answer the question of whether she is entitled to a lawful abortion in Ireland.
From my own experience, I know how distressing it is for a woman in her situation to have to travel to a foreign hospital where she does not know anybody, and undergo an induced labour without the support of her local hospital, doctors and family.
This is uncivilised. I hope that all political parties during their various election manifestos will use the opportunity to take a humanitarian stand on this issue. -
Yours, etc,
D DE BARRA, Clonskeagh, Dublin 14
ABORTION CASE AND MISS D
Madam, - I think the HSE's interference with Miss D's right to travel to terminate her pregnancy, which is incompatible with life, is easily resolved by the State allowing her to be treated in Ireland.
My view is based on the position advanced by Ireland before the European Court of Human Rights in my case in 2005.
The State argued that an Irish court would not apply Article 40.3.3 of the Constitution "with remorseless logic" in an exceptional, compelling and tragic case like mine, where a woman is pregnant with a severely disabled foetus.
Miss D's case is equally exceptional, tragic and compelling. In my case the Government argued that I should have exhausted all legal remedies open to me in Ireland.
The European Court considered that I had an arguable case with sufficient prospects of success to have sought an interpretative judgment in Ireland.
I am deeply concerned that this very young woman, who has had to come to terms with a devastating antenatal diagnosis, is now undergoing court proceedings because of the inflexible position adopted by the HSE, which is responsible for protecting her best interests.
But I believe the courts should now answer the question of whether she is entitled to a lawful abortion in Ireland.
From my own experience, I know how distressing it is for a woman in her situation to have to travel to a foreign hospital where she does not know anybody, and undergo an induced labour without the support of her local hospital, doctors and family.
This is uncivilised. I hope that all political parties during their various election manifestos will use the opportunity to take a humanitarian stand on this issue. -
Yours, etc,
D DE BARRA, Clonskeagh, Dublin 14
High Court Will Rule Tomorrow On Miss D's Leave To Travel
Mary Carolan The Irish Times Tuesday May 8th 2007
The High Court will decide tomorrow whether a pregnant 17-year-old girl in care may travel to the UK for an abortion. Miss D is almost 18 weeks pregnant with a baby with a major brain defect.
Lawyers for the State, the unborn and the girl have all argued there is no law preventing Miss D travelling.
The HSE insists she requires a court order to do so but District Court Judge Flann Brennan refused its application last Saturday to make that order on grounds that this would be a failure to vindicate the constitutional right to life of the unborn.
Miss D wished to have her baby until she learned on April 23rd last that it has anencephaly, a condition where a major part of the brain is missing and where it has a prognosis of three days survival after birth.
Mr Justice Liam McKechnie now has to decide two sets of legal proceedings. In her proceedings, Miss D wants the court to rule the HSE cannot restrain her from travelling. The HSE got leave from the High Court on Sunday to bring the second set of proceedings challenging the District Court's refusal to make an order that it is in the best interests of her welfare to allow her travel.
Yesterday, Mr Justice McKechnie said he could not give an immediate decision, as requested by the HSE, on whether Miss D could travel or not as the case had implications but he would give his decision at 2pm tomorrow.
Gerard Durcan SC, for the HSE, said the constitutional provision protecting the right to life of the unborn had to be read together with the right to travel amendment to the Constitution approved by the people. The people had decided that, "whatever other way you vindicate the rights of the unborn, you do not do it by restricting the freedom to travel".
Lawyers for the State argued the case is not about the right to life of the unborn but about the right to travel. Children had constitutional rights from day one and "those rights are not delivered to them by courier on their 18th birthday", Donal O'Donnell SC said.
While agreeing there was no law under which Miss D could be restrained from travelling for an abortion, James Connolly SC, for the unborn, said no State agency should facilitate or fund such travel and the courts should not be "some form of licensing body for abortions".
Miss D's baby is a live foetus entitled to the constitutional protection for the unborn and the fact that it cannot survive after birth "is irrelevant", he said.
The High Court will decide tomorrow whether a pregnant 17-year-old girl in care may travel to the UK for an abortion. Miss D is almost 18 weeks pregnant with a baby with a major brain defect.
Lawyers for the State, the unborn and the girl have all argued there is no law preventing Miss D travelling.
The HSE insists she requires a court order to do so but District Court Judge Flann Brennan refused its application last Saturday to make that order on grounds that this would be a failure to vindicate the constitutional right to life of the unborn.
Miss D wished to have her baby until she learned on April 23rd last that it has anencephaly, a condition where a major part of the brain is missing and where it has a prognosis of three days survival after birth.
Mr Justice Liam McKechnie now has to decide two sets of legal proceedings. In her proceedings, Miss D wants the court to rule the HSE cannot restrain her from travelling. The HSE got leave from the High Court on Sunday to bring the second set of proceedings challenging the District Court's refusal to make an order that it is in the best interests of her welfare to allow her travel.
Yesterday, Mr Justice McKechnie said he could not give an immediate decision, as requested by the HSE, on whether Miss D could travel or not as the case had implications but he would give his decision at 2pm tomorrow.
Gerard Durcan SC, for the HSE, said the constitutional provision protecting the right to life of the unborn had to be read together with the right to travel amendment to the Constitution approved by the people. The people had decided that, "whatever other way you vindicate the rights of the unborn, you do not do it by restricting the freedom to travel".
Lawyers for the State argued the case is not about the right to life of the unborn but about the right to travel. Children had constitutional rights from day one and "those rights are not delivered to them by courier on their 18th birthday", Donal O'Donnell SC said.
While agreeing there was no law under which Miss D could be restrained from travelling for an abortion, James Connolly SC, for the unborn, said no State agency should facilitate or fund such travel and the courts should not be "some form of licensing body for abortions".
Miss D's baby is a live foetus entitled to the constitutional protection for the unborn and the fact that it cannot survive after birth "is irrelevant", he said.
Partial Decision Expected Wednesday May 9th 2pm
Irish Independent Breaking News.
Partial decision expected Wednesday in 'Miss D' case 17:01 Monday May 7th 2007
The judge in the Miss D High Court case has said he will deliver a partial decision on Wednesday afternoon.
Mr Justice Liam McKechnie said it was not possible to give an immediate view on the case and he needed the day and a half.
He said he was extremely conscious that there were implications and ramifications.The HSE has asked him to quash the decision by the District Court on Saturday not to give Miss D permission to travel to the UK for an abortion.
Lawyers for the health authority told the judge that this decision was fundamentally wrong.
Partial decision expected Wednesday in 'Miss D' case 17:01 Monday May 7th 2007
The judge in the Miss D High Court case has said he will deliver a partial decision on Wednesday afternoon.
Mr Justice Liam McKechnie said it was not possible to give an immediate view on the case and he needed the day and a half.
He said he was extremely conscious that there were implications and ramifications.The HSE has asked him to quash the decision by the District Court on Saturday not to give Miss D permission to travel to the UK for an abortion.
Lawyers for the health authority told the judge that this decision was fundamentally wrong.
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