Miss D: Outside her control
Decisions made decades before she was born influenced the fate of Miss D. Whispers and shouts all around her showed how confused and passionate people still are about the issue of abortion, while the silence from politicians is deafening. Justine McCarthy was in the Four Courts for the verdict
When Brendan Comiskey was still the loquacious Bishop of Ferns and the media's most amenable dial-a-quote in the episcopal firmament, he used to tell this story.
One day towards the end of 1982, he got a phone call from the then Taoiseach summoning him to a meeting at Abbeville. The bishop arrived at the Gandon mansion, where he had been a guest on more than one occasion, and was shown into the inner hall. After some moments, Charles J Haughey's imperial figure, whispering in a silk dressing gown, materialised on the staircase and slowly began to descend. As he neared the hall, he reached an immaculately manicured hand into his silk breast-pocket and withdrew a piece of paper.
“I hope that makes your lot happy,” ventured the Taoiseach to the bishop, unfolding the paper and thrusting it into his hand. On it was written the wording of the proposed 8th amendment to the constitution. “A sneak preview,” was how Comiskey viewed the legend which, within a year, would be transposed into infallible law as Article 40.3.3, acknowledging “the right to life of the unborn, with due regard to the equal right to life of the mother”. Fianna Fáil and the Catholic bishops supported the referendum to a man. It was voted into the Constitution by 64 per cent of the electorate.
The ghost of this historical cameo refused to be banished during the High Court's four-day deliberations in the case of Miss D. Five teams of lawyers, crateloads of documents and a battery of grave-faced officials from the Health Service Executive filled the four different courtrooms it was forced to flit between during the process. (At 3pm on the Friday, the parties were ordered to vacate Court 2 to facilitate a media announcement of a new building programme by the Minister for Justice in the round hall.)
In her shocking pink T-shirt, swollen with the bump of her four-month pregnancy, Miss D sat on a packed bench at the side of the room. She and her boyfriend held hands, he turned to her every so often to ask if she was all right. Amid the sea of black gowns and grey wigs, she looked vibrantly youthful and glowing with promise, and yet she was dignified way beyond her years. It was hard to imagine, watching her coming and going discreetly, the grief she must have been feeling knowing that the foetus in her womb would not survive outside her body.
Something else that was difficult to grasp was that this girl, who was celebrating her 17th birthday when she saw on an ultrasound scan that her baby “had no head”, was not born until eight years after Haughey showed Comiskey the words that would make her a prisoner of the state. During Miss D's lifetime, Haughey was exposed as a kept man in receipt of rich businessmen's largesse and Comiskey resigned in humiliation after revelations of rampant cover-ups of paedophillac priests in his diocese. But the legacy of that warped conspiracy of power between the Oireachtas and the church, as exemplified in Abbeville that winter's day in 1982, has had devastating consequences for many citizens.
The rare politician who is willing to say anything nowadays involving the radioactive A-word will protest, with a resigned shrug of the shoulders, that the matter is beyond legislative remedy, since a referendum on the substantive issue was rejected by the people. This is to ignore blindingly persuasive evidence to the contrary.
Start in 1992 (when Miss D was two years old) with the late Judge Niall McCarthy's finding in the X Case, when the Supreme Court overturned an injunction prohibiting a 14-year-old rape victim from leaving the country to have an abortion. It was, said the judge, “reasonable to hold that the People, when enacting the amendment, were entitled to believe that legislation would be introduced so as to regulate the manner in which the right to life of the unborn and the right to life of the mother could be reconciled”. It elicited not a peep out of Leinster House.
Four years later (when Miss D was six), the Constitution Review Group, appointed by the legislature, recommended the introduction of a law to implement the X Case judgment, specifying the conditions under which abortion would be carried out in this jurisdiction. Silence once more from Leinster House.
In 1997 (when Miss D was seven), the C Case came to court after a 13-year-old girl, in the care of the Eastern Health Board, was found to be pregnant from rape. Against the backdrop of an intense power struggle between self-styled Pro-Life and Pro-Choice factions outside the courtroom, her right to travel was being thrashed out inside. One of the judges pointed out that, as Miss C had expressed suicidal thoughts because of her pregnancy, she was entitled to an abortion in Ireland under the X Case ruling.
In March 2002 (when Miss D was 12) a referendum was called on the proposed 25th amendment to the constitution – the Protection of Human Life in Pregnancy Bill – designed to reverse the X Case ruling. Turnout was 42.89 per cent, of whom 49.58 per cent voted Yes and 50.42 per cent voted No.
Sometime soon after last Christmas, when Miss D was 16, she got pregnant in a loving relationship with her boyfriend of two-and-a-half-years. The baby was due on 7 October. She was happy and excited. They bought nappies and a pram and, on 23 April, the day of her 17th birthday, they went to the hospital together for the first scan. Later that day, they were seen fleeing the hospital having been informed that their expected baby had a terminal condition known as anencephaly. He or she had no fore-brain and would not live for more than three days after birth.
Miss D, who was lodging in a B&B in the temporary care of the HSE under an interim court order, following an incident with her mother in February, moved into her boyfriend's mother's house that night. She began researching anencephaly on the internet and was met with images so grotesque she had nightmares. She eventually decided that she wanted to end the pregnancy and was supported in her decision by her boyfriend, his mother and her own mother, who, Miss D described in her High Court affadavit as “good in a crisis”. Her mother said she would raise the money for her to go to England for a termination.
The HSE, however, had a different view. Miss D's social worker, Mr R, who sat in court throughout the hearings, phoned a Garda superintendent (following with a phone call in the same vein) saying that Miss D was to be stopped if she attempted to leave the country for an abortion. (The superintendent replied that the Garda had no powers to arrest the girl). Mr R also wrote to the Passport Office in Dublin saying that the HSE would not give consent if she attempted to procure a passport. He warned Miss D's mother that, if the girl took a legal challenge against the HSE's position, the court case would descend into “a media circus”. He told her that, if she was found to be suicidal, she would qualify for an abortion but, in Miss D's eyes, she was faced with an impossible choice: either pretend she was suicidal and be admitted to a psychiatric hospital, or attempt to travel to England for a termination and risk being arrested.
Judge Liam McKechnie also regarded the situation in clear-cut terms. “I hold the view firmly and unequivocally that there is no statutory or constitutional impediment which would prevent Miss D from travelling to the UK,” he announced at the start of his 100-minute judgment on Wednesday, 9 May in a capacity-filled courtroom.
“Is that yes?” mouthed Miss Ds's mother to a friend. Suddenly looking worry-free for the first time in the proceedings, she smiled – maybe anticipating breaking the news to her daughter who was absent – and looked out the window. On the quayside below, a pro-choice poster warning, “Keep Your Rosaries Off My Ovaries”, had been liberated from the attic of history. It evoked memories of a time when Cosmopolitan magazine was sold in Ireland with blank pages where the British edition carried advertisements for abortion services. Further up the quayside, protesters fashioning themselves “pro-life” held aloft placards insinuating that Miss D was seeking an abortion because her baby would be born “disabled”.
Inside, Judge McKenchie, was nailing that grievous lie. Referring to “the sheer awfulness of the situation” and the “truly devastating scan”, he explained that anencephaly as “a lethal abnormality incompatible with life outside the womb”. He said there was a high rate of complications associated with an anencephalic pregancy, especially for a girl under 18 in her first pregnancy and carrying to full term. “There is no treatment, and never has been. There is no cure, and never has been.”
He commended Miss D for her “courage, integrity and maturity”, drawing a proud smile from her mother, “and for her good moral judgement”. This was not, he said, a case about abortion, but about the girl's right to travel. “I will not say if Article 40.3.3 applies to a foetus such as we have in this case.” He also witheld comment on “the other D case”, in which a woman challenged Ireland in the European Court of Human Rights after undergoing an abortion in Britain when one of the twins she was carrying died during pregnancy and the second twin was diagnosed with a terminal condition. The European Court ruled against her last year on the grounds that she had not exhausted the domestic courts. Lawyers for Ireland had argued that, had she fought her case in the Irish courts, they would have entertained her contention that she should have been treated with a medical termination within the jurisdiction. Miss D's senior counsel, Eoghan Fitzsimons, a former attorney general, had argued that this provided grounds to believe his client was legally entitled to a termination in an Irish hospital.
Both these matters were, according to Judge McKechnie, “very important, very difficult and very significant issues”.
Only Mrs D's footsteps, as she left the courthouse to relay the news to her daughter, had any ring of urgency in the aftermath of the judgment. One woman loudly complained to friends as she left that “the judge should have put on a black hat before giving his verdict” and that “you always know what they're going to say when they use the word ‘termination'”.
In contrast, politicians have been deafeningly silent on the judgment in the Miss D case. Fianna Fáilers protest that they gave the people their chance with the 2002 referendum. Enda Kenny promised the Irish Catholic newspaper that he would not legislate for the X Case if he became Taoiseach (contrary to Labour's Ruairi Quinn who said Miss D should be allowed have her termination in Ireland). Asked if the PDs would take up the issue if returned to government, party president Tom Parlon told the Sunday Tribune: “I've let that issue go over my head. I've enough on my mind at the moment. I don't have a view on it.”
Meanwhile, the “unborn” entity given constitutional safeguards on foot of that piece of paper exchanged between the Taoiseach and the bishop 25 years ago, remains undefined in law. In the cynical vacuum of political will, it is only a matter of time before the next Miss X or Miss C or Miss D is propelled into a courtroom of lawyers spouting precedents while her bump grows. Perhaps there is one being born now.