Ireland: Attorney general speaks about X case

The attorney general who challenged a 14-year-old rape victim’s right to travel to England for an abortion in 1992 has said that he regrets the sadness caused, but insists he was only doing his duty, the Sunday Times reports.

Harry Whelehan, who was attorney general in the Albert Reynolds-led Fianna Fail/Labour coalition government, has justified his role in the infamous X case, saying he did what was constitutionally required.

‘I’m not prepared to say I regret having to do my duty,’ he says in an RTE documentary about the case, broadcast on 22 February. ‘I do of course regret the upset, the sadness, the trauma, which was visited on everybody involved but that’s something which I can’t do anything more about.’

In February 1992, after the case was brought to his attention by the Director of Public Prosecutions (DPP), Whelehan sought a High Court injunction to prevent the girl, known only as Miss X, from leaving the country for an abortion. The girl had been raped by a friend of her father in Rathfarnham when she was 13.

Less than a decade earlier, a referendum was passed amending Article 40.3.3 of the Irish constitution to give protection to the unborn child.

‘The problem was stark,’ Whelehan told the Scannal programme. ‘There was an unborn child with a constitutional right to life. There was nobody to advocate the right of that child to be born other than the attorney general.

‘I don’t want this to sound harsh but where the mother of the child, who is entitled to have its life protected, decides to seek an abortion the only mechanism in our system is for the attorney general to intervene and make a case for the child to be born alive.’

Seán Duignan, who was government press secretary at the time, told the programme: ‘I remember Harry and [Albert Reynolds] kicking it back and forward, arguing about it and Albert going “Harry, you’ve got to think politically occasionally” and Harry saying “No, you can’t get over the legal and the constitutional implications, taoiseach”.

‘Both sides of the house were adamant that Harry should have taken advice. What they really meant by that is that he should have delayed, that the file should have dropped behind a radiator for a while… at least until the girl was out of the country and that she had her abortion.’

Whelehan acknowledges that there was pressure on him to turn a blind eye, the Sunday Times reports, but that would have meant failing to do his duty. ‘I know it was suggested by many people that I should have done nothing and that could never have been a proper or honourable action, nor could it have in any way put me in a position of discharging my constitutional obligation to protect or to at least seek to protect the right of that unborn child to be born,’ he says.

The case of the Attorney General v X was heard in the High court in February 1992. Even though the girl threatened suicide, Justice Declan Costello upheld the rights of the unborn child and granted the injunction. Banned from travelling for 10 months, Miss X appealed to the Supreme Court and it lifted the High Court order by a four-to-one majority.

The majority opinion held that a woman had a right to an abortion under Article 40.3.3 if there was ‘a real and substantial risk’ to her life. This was never subsequently provided for in Irish legislation by subsequent governments.

X case judge Harry Whelehan: I was only doing my duty. The Sunday Times, 21 February 2010