Yesterday, The other day (this post is taking longer than it should) the Jury in an Irish Coroner’s Inquest which considered the events leading to the 31 year old dentist’s death on October 28, 2012, returned a verdict of death by medical misadventure.
Dr Peter Boylan, the former master of the National Maternity Hospital in Dublin, told the inquest that Savita would probably still be alive today if she had got a termination in the first three days of her stay in the hospital, but that under Irish law an abortion would have been illegal because there was “not a real and substantial risk to her life at that stage”.
And by the time her life was at risk, it was too late to save her with a termination.
The story of Ireland and abortion of course is far more than the story of Savita, but this case has brought the issue back to the legislature and the headlines. In this post, I’m just trying to put most of the story on one page so that those who haven’t followed it so far can catch up. My main resource for doing this, as you will see, will be links to the fab Human Rights in Ireland blog, a collective with some amazing authors – including Mairead Enright, Fiona de Londras, an academic focused on international human rights, who is at Durham in the UK. Another is posts over at Inherently Human: Critical Perspectives on Law, Gender and Sexuality ,an “unabashedly feminist” blog run by a team of lecturers at Durham.
Inherently human was “established to support the work of scholars and activists whose work engages critically with the relationship between law, gender and sexuality. In this respect, it is unabashedly feminist in its focus, welcoming contributions from the spectrum of contemporary feminisms, as well as writing from the fields of lesbian, gay, bisexual and trans legal studies, on any relevant substantive topic. The name of the weblog is drawn from a quotation from the US feminist activist and writer Robin Morgan: “Women are not inherently passive or peaceful. We’re not inherently anything but human.””
Shortly after the Savita story hit the Irish press, de Londras posted Abortion in Ireland: How much more of this can we tolerate? in which she describes two cases which set the scope of the legal debates currently in play, the X Case (a domestic Irish case from 1992) and A, B & C v Ireland (an ECHR case from 2010):
The constitutional right to access an abortion arises only in situations where “it is established as a matter of probability that 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”. This is the test laid down by the Supreme Court in the infamous X Case, concerning whether or not a 14 year old girl who was pregnant as a result of rape and suicidal as a result had a right to access abortion. The Supreme Court could not have expressed the test more clearly in this case. Neither could it have done in numerous subsequent cases since then when it has reiterated the existing constitutional right and openly criticised the failure to give effect to it by means of clear guidance to medical professionals about how the test can be operationalised. On two separate occasions the Irish people have been asked in constitutional referenda to restrict the X test by removing the risk of suicide from the life threatening conditions giving rise to the constitutional right. On both occasions the Irish electorate has refused. We do not know for sure whether people want wider access to abortion (the X test is, of course, very narrow) but we do know that people are not willing endorse a narrowing of the right.
In 2010 the European Court of Human Rights in A, B & C v Ireland accepted that Ireland has the sovereign right to decide on the availability of abortion per se, but that if there is a right to access abortion there must be a system for that right to be exercised. In the absence thereof there was a breach of the Convention.
On the same day, Kent’s Mairead Enright Savita Halappanavar: Ireland, Abortion and the Politics of Death and Grief, a piece I have recommended before for the way that it powerfully presents (with lots of links) the connections between Savita’s case and other desperate situations faced by Irish women.
Here is the point. Irish women’s reproductive autonomy has been subject to the control of minority professionalised religious (in the sense of connection to religious institutions) interests for generations. The Irish Times describes the exchange between Savita, her husband, and a hospital consultant:
The consultant said, ‘As long as there is a foetal heartbeat we can’t do anything’… The consultant said it was the law, that this is a Catholic country. Savita said: ‘I am neither Irish nor Catholic’ but they said there was nothing they could do.
Irish people will hear echoes of Brendan Hodgers’ testimony on the death of his wife Sheila. They will think of Olivia Kearney, her husband and others affected by the peculiarly Irish practice of symphysiotomy. The notion of the “right to choose” in this context shocks and jars.
Throughout the coroner’s inquest one of the most poignant voices has been that of Praveen Halappanavar, the widower of Savita. Savita’s position, as a non-Catholic, non Irish person subject to these laws is one window into understanding the public significance of her death. An article by Michelle Chen at RHRealityCheck claims that “Savita’s case …reveals how immigrant status can underscore the policy’s social parochialism.” At the Inquest, the hospital midwife admitted making the famous “catholic country” remark and apologized, saying that she meant it in a kindly way. I look forward to more discussion of this part of the issue.
The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.
- She described the issues as follows:
first, what is ‘life’ for the purposes of Article 40.3.3; and second, is all foetal life equal, and to be treated as equal to that of the life of the woman? According to Article 40.3.3, unborn life is to be vindicated and protected ‘with due regard to the equal right to life of the mother’. Where foetal life cannot be born alive, and will not survive outside the womb, can it really be said that in these circumstances, the right to life of the unborn is ‘equal’ to the right to life of the woman? What is unique about the Halappanavar case in the context of Irish jurisprudence is the fact that there was no question but that this ‘life’ would not survive outside the womb. A further question arises then: is the Medical Council correct in equating life which has ‘little’ prospect of survival with life (such as that where the baby will be born alive but only survive a matter of hours or days after birth) with that which has ‘no’ prospect of survival? The question as to viability, the meaning of ‘life’ and the circumstances in which a fatal foetal abnormality can justify termination are all questions which need to be urgently addressed.
Savita’s death reignited the debate over the urgent need to legislate in response to cases like Savita’s , as well as the long delayed need to legislate for X – and to provide critical guidance to medical professionals working in Ireland. As Jennifer Schweppe writes:
There is more to legislating for Article 40.3.3 than simply providing for lawful terminations where the life of the mother is at risk. After X, C, D, D, A, B and C, we tragically have a face and a name attached to the failure of the legislature to respect and protect women’s rights in Ireland. McCarthy J stated in 1992 that the failure to legislate on the abortion issue was inexcusable. There are no longer any excuses: legislation must be introduced as a matter of urgency.
The Report of the Expert Group on the Judgement in A, B and C v Ireland was released in November 2012 as well. You can read it here (it also contains a useful summary/timeline of the legal cases and constitutional referenda), and you can see some of the “implementation” hearings (as in, what should legislation look like) which followed here along with another Enright post.
Now, it seems, legislation is coming. Shane Harrison on the BBC website wrote
Within the next fortnight, the coalition is expected to publish the heads of the bill – its general principles – that it hopes will become law by July.
Fine Gael is the largest partner in the Irish coalition government but several of the party’s politicians have expressed unease about the proposal to legislate for the credible threat of suicide as a grounds for a pregnancy termination.
They, and the Catholic Church, believe it could allow for “abortion on demand”, something the government strongly denies will happen.
The legislation is expected to be very restrictive by international standards.
The rumours about the proposal are thick on the ground (it does seem as though it is really just legislation for X, in these rumours, not something that would address the situation of A, B and C, or Savita). Many suggest that the legislation will require a number of specialists to testify about the suicide risk (see for example here, here and here plus here for some dark humour), an approach which seems reminiscent (if even more restrictive) to the Canadian experience with therapeutic abortion committees prior to Morgentaler (1988) (see esp page 66 and 92 and on for discussion). In short, these Committees couldn’t be constituted or were not appointed at many hospitals, thus making therapeutic abortions practically unavailable in those institutions.
I’m going to wrap up and post now, but i am looking forward to following this – all the more so now that I have more of the context to this struggle.