Miss D Case in 2007
In May 2007, a 17-year-old girl took a case to the High Court against a Health Service Executive (HSE) decision to stop her leaving the State for an abortion. She had been in the care of the HSE since February. 'Miss D' was four months pregnant and wanted to travel to the UK for an abortion.
The decision was made when the teenager discovered the baby she was carrying was suffering from anencephaly, a condition which is causing its brain not to develop properly.
The HSE was refusing to allow her to leave the country. Why they refused her very strange as the HSE has taken teenagers in their care to England to procure abortions and have funded the travel and the abortion itself from the state itself.
Miss D was asking the High Court to overrule the HSE's decision to ask gardaí to stop her. And she was also challenging the HSE's decision to refuse to let her travel to terminate the pregnancy unless there was a risk she would commit suicide. The girl said she decided to have an abortion because of the physical and mental trauma the pregnancy would cause.
She said she was supported by her mother and her boyfriend's mother and both families would come up with funds to help her secure the abortion. She said she was not suicidal. and that she believed she would be arrested if she tried to leave the state.
In the High Court
On Bank Holiday Monday (7 May 2007) there was a special hearing of the case that day. Before the case commenced the lawyers for the Health Services Executive (HSE) said important matters had developed in the case since Friday. It appeared that on Friday (4 May 2007) the proceedings were held in camera. The HSE had agreed that the correct procedure in the case was to apply to the District Court for permission for Miss D to travel to England for an abortion. The District Justice came to the conclusion that the granting of the order to travel would fail to vindicate the right of the unborn and he refused the order to leave the country.
The HSE went before the High Court on the Sunday to seek a judicial review of the District Justice’s decision from Mr. Justice McKechnie who also happened to be the judge in the D case. Mr. Justice McKechnie granted leave to seek a judicial review.
The HSE asked Mr. Justice McKechnie to deal with the judicial review of the decision of the District Court and the right to travel without hearing the substantive issue. The judge then said that as to what way to proceed was complex. He said it must be guided by the welfare of the applicant and with consideration to constitutional procedures. He then decided he would deal with both the judicial review of the right to travel and the substantive issue and he would give a view on what was best in the circumstances.
There were 2 barristers for the Attorney General (AG), Mr. Donovan who dealt with the right to travel and Mr. Connolly who dealt with the rights of the unborn. Mr. Donovan’s case was basically that there was no restraint on the applicant exercising her right to travel and he went further to say no court could lawfully grant such permission. He also said if the child wasn’t in care and was over 16 years of age, she could travel anywhere and a child in care couldn’t have less rights than a child not in care. He argued that since 40.3.3° was inserted into the Constitution, the State could not restrict travel. Mr. Connolly spoke for the unborn. He said the case must be viewed with regard to the following:
Unborn – He said there was no logic to saying what will happen to the foetus after birth. It is a live foetus and he referred to Dr. Higgins’s report that it was a single, active foetus entitled to the right to life protection as enshrined in the Constitution. The judge then intervened to say that this case was not about disabilities, that this baby would not live. (I thought this was an extraordinary interjection by the judge and indicated to me that he had already made up his mind as to the fate of the unborn child). Mr. Connolly pointed out that if a person as a result of an accident is in a vegetative state he is still entitled to constitutional protection. He further stated that the foetus is entitled to protection under Article 40.3.3°until born. He also dealt with the ‘C’ Case which gave the right to travel where the mother is suicidal. Mr. McGrath, Junior Counsel for the AG, also said that the State should vindicate the right of the unborn by restricting freedom of travel. He said Judge Geoghegan in ‘C’ was not an authority.
The case by the AG’s office for the unborn, such as it was, was incomplete, in that medical and psychiatric evidence should have been introduced to counteract what the doctor for Miss ‘D’ was saying. In this case as in the ‘X’ case, the unborn child was badly let down by the State. In the ‘X’ case the evidence of an Eastern Health Board psychologist was relied on in considering the mental state of the mother and in this case no evidence was offered by the State to show that the mother would be better mentally and physically to give birth to her baby.
On Wednesday, 9 May, Mr. Justice McKechnie arrived an hour late to give his judgement. He said Miss ‘D’ could travel. He said there was an abnormality in the foetus and that it had no brain and had no chance of survival. He said there was no treatment and that the baby’s condition was fatal. He said the baby could not survive outside the uterus. He then went on to consider the gynaecologist’s report and the downsides of the pregnancy. The judge said babies like this were “mishaps of nature.” The judge again gave his opinion that this case was not about a foetus with a disability but about a baby destined to die. He criticised the HSE’s handling of the case and their attempts to bring it within the ‘X’ case. Mr. J McKechnie then went on to say that in his opinion the right to travel inserted into the Constitution by the 1992 referendum, takes precedent over the right to life of the unborn. He then set aside the order of the District Court.
Mr. Justice McKechnie relied heavily in his judgement on the mother’s gynaecologist’s report who is, of course, an employee of the HSE. The State should have put forward an independent gynaecologist’s report on behalf of the unborn.
The people in the last referendum rejected an amendment to the Constitution which would have given a citizen a right to travel for an abortion in England. This was ignored by the judge in this case who said a citizen’s right to travel overruled the right to life of the unborn.