In 1989, Irish society could easily have been characterised by its conservativism. Divorce was illegal, homosexuality was criminalised and the act of handing out information on abortion almost landed four Trinity College Dublin Students’ Union (TCDSU) officers behind bars.
Although abortion was illegal in Ireland at the time, TCDSU sabbatical officers were determined to uphold the union’s pro-information policy. Indeed, they were not alone in the anti-censorship stance, finding company in the approaches of both the University College Dublin Students’ Union (UCDSU) as well as the Union of Students Ireland’s (USI).
“We just did it because we saw the inequality”, Maxine Brady, a former USI president, explains. However, the students were met with tough opposition, finding their most vocal and relentless opponent in the Society for the Protection of the Unborn (SPUC), the oldest pro-life campaigning and educational organisation in the world.
Enabled by the eighth amendment to the constitution, which was passed by referendum in 1983, SPUC had spent the 1980s shutting down clinics that had provided information on abortion. Under the eighth amendment, the life of the pregnant person – referred to as “mother” in the wording – was equated with the life of the unborn baby, meaning they shared equal rights and deserved equal protection.
“Despite saying they wouldn’t use the amendment to pursue people … [SPUC] started taking civil cases against women’s counselling services”, Ivana Bacik, the TCDSU president in 1989, tells me. SPUC’s efforts to shut down these centres were aided by what became known as the Hamilton judgement within which “[Judge Hamilton] made this extraordinary leap where he said the 1983 amendment equates the life of the pregnant woman and the unborn – only he says mother and unborn – and that by giving a pregnant woman information that might lead her to terminate the life of the unborn, you are then acting unconstitutionally”, Bacik explains.
To her, this can only be described as a “huge legal leap”. However, as she points out, “the leap was made, the judgement was upheld by the Supreme Court and thereafter that gave SPUC the freedom to just go after anyone who was giving information out”. It was only a matter of time before the three unions became embroiled in a legal battle.
Judge Hamilton made this extraordinary leap where he said that by giving a pregnant woman information that might lead her to terminate the life of the unborn, you are then acting unconstitutionally
Unknown to the students, SPUC applied to the court and was granted an interim injunction. Beverly Turner, the students’ solicitor during the case, explains that “an injunction is usually a preliminary step when you want somebody to either do something or not do something”. In this case, SPUC wanted to prevent the three unions from publishing and distributing information on abortion and had successfully convinced the court to allow them to do so.
That is how, in the summer of 1989, a notice ended up in each of the unions’ post boxes informing them that they must stop distributing information on abortion. If they continued to do so, they would be acting in defiance of a court order. “We used to get a lot of things coming in and out of the office in those days … letters from all types of characters at home and abroad … and this just seemed to be another bunch of crazy people for want of a better expression”, Stephen Grogan, the USI president at the time the dispute began, explains.
Committed to their pro-information policy, the three unions decided to continue publishing information on abortion in their handbooks, aware that doing so came with serious consequences. As it turned out, the consequences for Trinity’s sabbatical officers were more severe than for the other two unions.
It was a twist of fate that Trinity’s freshers’ week fell a week earlier than UCD’s. This meant that TCDSU distributed the handbooks containing information on abortion one week before UCDSU did. As soon as they did so, they were served with a penal notice. In other words, SPUC was “looking to imprison us for breaching a court order”, Bacik explains.
While SPUC had been successful in obtaining their injunction, an injunction alone was not enough. Rather, as Bacik says, an injunction “has to attach to a substantive court action”. This meant that SPUC were actually accusing TCDSU of not just one but two things.
In the first instance, they were facing the threat of imprisonment for breaching the injunction. In the second, they, alongside UCDSU and USI, were being accused of “breaching the constitutional rights of the unborn by giving information to pregnant women in any form which might lead them to terminate the pregnancy”, Bacik tells me. This, she says, was the substantive action to which the injunction attached.
A notice ended up in each of the unions’ post boxes informing them that they must stop distributing information on abortion. If they continued to do so, they would be acting in defiance of a court order
The threat of court action was something the students were aware of. The previous year, SPUC had taken a different case – known as SPUC v Coogan – against UCDSU so “I suppose we were sensitive to the fact that the letters could be coming our way”, Grogan says.
Although they were “resolute”, Bacik admits that they were worried about the consequences of their actions. She explains: “The women’s prison in Mountjoy at the time was appalling. The Dochas Centre wasn’t built. We met with a former prisoner who told us just how brutal it was in there, particularly for young women, so we certainly were scared.”
For the four Trinity sabbatical officers, the fear of ending up behind bars was perhaps somewhat compounded by the fact that they had no legal representation. “We were going to represent ourselves”, Bacik tells me. She admits that they did not even intend to mount a defence.
That is until Bacik bumped into Gideon Taylor, a classmate of hers, on Grafton Street one winter evening in 1989. Turner explains how Bacik told Taylor that she was “very concerned”. “Gideon [then] went back to the practice and he spoke to his dad, who was Mervyn Taylor … The story goes that Mervyn said, ‘I’ll ring Mary’ [Robinson], our esteemed ex-president. That’s how the ball got rolling and how we ended up acting”, Bacik tells me.
This chance encounter resulted in Taylor Buchalter becoming the students’ solicitors with Mary Robinson and Seamus Woulfe – a classmate of Mervyn Taylor’s eldest son, Adam – assuming the role of their Senior and Junior Counsel respectively.
For Bacik and her colleagues, this turn of events “was hugely important”. However, while things were beginning to look up, as she points out, “[Mary Robinson] told us to pack our toothbrushes because she thought we were going to prison”.
Crucially for the students, Robinson had noticed that there was a point of European law involved in the case. At the crux of the students’ defence was a question: Can one EU member state give information about a service that is legally available in another member state? This argument, if it succeeded, would clear the students’ names because abortion was legal in other member states at the time.
In the High Court, the students’ case – because it dealt with questions of European law – was referred to the European Court of Justice. The judge also denied SPUC their immediate relief and the TCDSU officers escaped imprisonment.
Mary Robinson told us to pack our toothbrushes because she thought we were going to prison
“Mary Robinson gave that incredible argument. I remember listening to her from the back of the court and being so proud she was representing us”, Bacik tells me. It took almost two years for the case to come before the European Court of Justice. Nevertheless, not every defendant involved was pleased to see it progress there. Brady did not share their opinion. “I wanted it to go further”, she says.
Indeed, it is important not to forget how high the stakes were for the students involved at the time. Brady explains that those studying law, such as Bacik, “would have been advised about the possibility that they would not be able to practice law if we were convicted”. She herself remembers being told that she may not be able to get a mortgage if the case did not go in their favour. Although, as Grogan points out, “the primary danger of not getting a mortgage in those days wasn’t that your legal record was going to go against you, it was that you’d never find a job in the country”.
By the time the court date rolled around, Robinson had been elected President of Ireland and she was forced to step down as Senior Counsel. John Rogers took her place. “I do recall, myself, John and Seamus having to get [to the European Court of Justice] and it was a devil of a place to get to, we had to get two planes”, Turner tells me.
In the European Court of Justice, Robinson’s argument – articulated by Turner – succeeded, however, the students could not benefit from it. The argument could only apply where there was a commercial link to an organisation and the students had no such link. This meant that they ultimately lost their case.
Following the standard procedure, the case was returned to the High Court for a full hearing. Here the students lost again and decided to appeal to the Supreme Court. However, before their appeal was heard, the X case came before the court and the law changed.
The X case concerned a 14-year-old girl, a victim of statutory rape, who had subsequently become pregnant. The Supreme Court ruled in this case that a pregnant woman had the right to have an abortion if her life was at risk because of the pregnancy, including the risk of suicide.
“What the X case did was it blew the whole thing wide open”, Brady explains. Not only did the law on abortion change but public opinion also began to change. Up until the X case, “we had no political support. Nobody supported us, there wasn’t one politician who would speak out in favour of us”, she tells me.
After all, for the majority of the proceedings, “we were absolutely vilified”, Bacik says. She recalls the hate mail they were sent and remembers being spat at in the street. She explains: “Public opinion was so anti-abortion at the time. We were going completely against the majority and yet we knew every single day we had desperate women and girls phoning us, myself and the welfare officer, the two women officers, we were getting calls every day, women absolutely desperate for a phone number.”
Even Bacik’s parents “took a lot of heat” and “had to go ex-directory” during the dispute. “Looking back, the sexual repression in Irish society was so intense”, she tells me as she recalls the running budget to replace the condom machine the union installed – despite contraception being illegal – because it “was being vandalised every week”.
Nevertheless, as Brady points out, the X case meant that abortion became “something people could speak out about”. The facts of the case were so harrowing that “the public then began to come around to the idea that abortion should be allowed in certain circumstances”.
Bacik recalls the running budget to replace the condom machine the union installed – despite contraception being illegal – because it was being vandalised every week
Significantly for the students, the X case meant that the Supreme Court had to allow the students’ appeal. Although, as Turner points out, “they were really spitting that they had to. I remember sitting in that courtroom and the tensions were running very high.”
While the Supreme Court was bound by their own law, that did not stop them from “flexing their muscles” as Turner describes it. She explains: “You look at any judgement, if you win your appeal, you get the cost of the whole kit and caboodle, right back to the beginning of the case. They only allowed us the cost of the appeal so they allowed SPUC to retain their cost of the High Court and that’s how they penalised the students. It was quite a perverse thing to do.”
The students won their case in the end but looking back on it Bacik tells me that “it was a very intense time”. However, as she points out, “crucially for us in Trinity, we did have the support of the student body”.
The case itself seemed to have a powerful impact on those involved. “Certainly it taught me a lot about how you can disrupt and you can stand up to authority without it ruining your life”, Brady tells me. Notwithstanding the fact it was – in Bacik’s words – “a long and protracted legal battle”, they seem proud to have played a role in accelerating societal change at the time.
“If I had to do it all again I would”, Brady concludes.
