(For a fuller discussion, see Kingston, J., Whelan, A. and Bacik, I., Abortion and the Law (1997). Dublin: Round Hall/Sweet & Maxwell.)
Abortion in Ireland is a criminal offence under the 1861 Offences Against the Person Act. Article 40.3.3 of the Constitution, passed in 1983, also guarantees the unborn an equal right to life with the pregnant woman. After this Article was passed, SPUC (the Society for the Protection of the Unborn Child) took a series of cases against women's counselling centres and students' unions, in which it was established that it was unconstitutional to provide information to women on abortion clinics in England.
In 1992, again under Article 40.3.3, the High Court granted an injunction to stop a pregnant 14-year-old girl from travelling to England for an abortion (the X case). Two weeks later, the Supreme Court overturned this injunction, and ruled that where the rights to life of the woman and the unborn are in conflict, the right to life of the woman must prevail; ie where there is a "real and substantial risk to the life, as distinct from the health, of the mother, which can only be avoided by the termination of her pregnancy, such termination is permissible." Here, because X had threatened to commit suicide if her pregnancy continued, such a risk existed, so she had a right to an abortion. However, if such a risk did not exist, then a pregnant woman could be restrained from travelling abroad.
In November 1992, two Amendments to Article 40.3.3 were passed, providing that the right to life of the unborn could not be invoked to prevent anyone exercising their right to travel or to information.
In November 1997, a further case involving a 13 year old pregnant rape victim, who had been placed in the care of the Eastern Health Board, went through the courts (the C case). The EHB sought permission to take her to England for an abortion. The High Court held that she could be permitted to travel, because under the X case test, there was also a real and substantial risk to her life if the pregnancy were to continue (the risk of suicide). However, had her life not been held to be at risk, the Health Board would have been prohibited from helping her to exercise her right to travel outside the country. Following this case, there have been many calls for a change in the law, and as a result this Interdepartmental Working Group was set up.