Guest post by Sorcha Uí Chonnachtaigh

I am going to, rather controversially, agree with one aspect of the statements of pro-life activists commenting on this case. That is not something I thought I’d ever say. Like, ever ever.

A statement issued by Youth Defence (one of Ireland’s most radical pro-life organisations) made the valid point that “Irish doctors are always obliged to intervene to save the life of a mother, even if that risks the life of her baby”. Because of some misconceptions about the reasons for Savita’s maltreatment, it is assumed that Ireland needs to reform its abortion law so that this never happens again.  While I would strongly support abortion law reform in Ireland, it is not necessary to ensure this never happens again.  Mere legal regulation of the status quo on abortion would prevent this.  As the (limited) law stands, this should never have happened at all. While some believe that legislation to regulate access to already lawful abortions constitutes law reform, any such legislation would not alter the current legal position – it would merely give meaningful access to abortions.

I don’t agree with anything else that has been included in pro-life posts/articles (stop throwing things at your computer screens), but more on that later.  First, I want to elaborate on this to clear up some of the misconceptions about Irish law that have been expressed in condemnations of the case around the web.

If you have clicked through to this post, it is very likely that you’ve already read about the facts of Savita’s case, first reported in the  Irish Times on 14 November, and at least some of the estensive commentary pieces available on the issues arising from this case (like this, and this, and this).  (These links here are to pieces by Irish people with more informed knowledge of the legal situation.)

For the sake of comprehensiveness, I’ll provide an edited summary of the facts of the case (as reported to the Irish Times by Savita’s husband Praveen):

Savita Halappanavar (31), a dentist, presented with back pain at the hospital on October 21st, was found to be miscarrying, and died of septicaemia a week later. […] Having been told she was miscarrying, and after one day in severe pain, Ms Halappanavar asked for a medical termination. This was refused because the foetal heartbeat was still present and they were told, “this is a Catholic country”. She spent a further 2½ days “in agony” until the foetal heartbeat stopped. The dead foetus was removed and Savita was taken to the high dependency unit and then the intensive care unit, where she died of septicaemia on the 28th. An autopsy […] found she died of septicaemia “documented ante-mortem” and E.coli ESBL.

Until the inquest is held and findings of the internal investigations published, we will not be fully clear on the nature of the medical decision-making in Savita’s case. Though it seems unlikely that an institutional-level Catholic ethos is to blame, it is not impossible that a particular senior doctor involved had personal beliefs. It is more likely, however, that a misinterpretation of the law was behind the refusal to remove the foetus while there was a foetal heartbeat.  When symptoms of sepsis occurred (shaking and vomiting) doctors immediately started Savita on antibiotics but still refused terminate the foetus and evacuate the womb, which appears to be best practice.

If it was the case that the doctors involved in Savita’s case have a personal religious belief and would conscientiously object to providing a termination even where the foetus is inevitably going to die and is causing a risk to the woman’s health and life then legislative guidance would (hopefully) have made provision for referral to an alternative physician or empowered the patient to demand necessary treatment.

Irish Abortion Law

Simon Mills (barrister) gives a good overview of the legal context in Ireland on an Irish radio programme (0-13 mins of this audio clip).  Read Henry McDonald’s Guardian piece on the evolution of Irish abortion law, too.  (Here I am going to only give brief background and highlight the relevant law in Ireland.)

Sections 58 and 59 of the Offences Against the Person Act 1861 (still in effect) prohibit the attempt to procure an abortion and the administration of drugs/use of instruments to “procure a miscarriage” (s.58) and supply and procurement of drugs or instruments for use with “the intent to procure a miscarriage” (s.59).  The Pro-life Amendment Campaign (PLAC) successfully lobbied in the early 1980s to insert an amendment into the Constitution (Article 40.3.3), which stated:

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.

 

This constitutional protection of the ‘unborn’ cemented the legal prohibition on abortion. The Article was tested in 1992 in a case known as “the X case“, which focused on a 14 year old pregnant rape victim (X), who was suicidal. This case confirmed that the Constitution would not prevent a termination where there was a “substantial risk to the life of the mother” and determined that the risk of “self-destruction” was a valid risk (with respect to the Constitutional Article) to the mother’s life.  The absence of legislation was clearly highlighted as a problem – Justice McCarthy pointed to uncertainty for women and the medical profession.  Twenty years on from that judgement and the recommendation for legislative guidance on lawful abortions has not been acted upon.

It should also be pointed out that following extensive lobbying by pro-life organisations, previous governments have put Constitutional amendments before the people that would restrict abortion (for example, to limit the right to travel and to exclude the risk of self-destruction as a risk to the life of the woman) and the people did not do so. Campaigning by pro-life lobby against legislating for X goes against the will of the people of Ireland. There has never been a referendum to liberalise access to abortion in Ireland.

The European Court of Human Rights found that the absence of abortion legislation had violated the Article 8 rights of one of the women (C, who was forced to travel to the UK when her life had been at risk) in A, B and C v Ireland [2010] ECHR 2032 because it constituted a failure to provide accessible and effective procedures for women entitled to legal abortions.

In a letter to the editor of the Irish Times, Prof PK Plunkett (Clinical Professor at Trinity College Dublin), argues that the “uncertainty [relating to the circumstances in which termination is lawful] is likely to lead to hesitation in taking an irrevocable step in the care of a pregnant woman, such as may create dangerous delays and potentially lead to tragic consequences”.

Dr Muiris Houston (health analyst with the Irish Times), speaking on the same radio programme as Simon Mills (go to 18:30mins), suggests that doctors in Ireland do routinely perform surgical interventions resulting in the death of the foetus when necessary to save the life of a pregnant woman (at 20:11 mins). However, anecdotal evidence from Irish women sharing their experiences on Irish radio shows suggests that access to lawful terminations in the past 20 years has been extremely variable (over time and across geographic location of the hospital).

Women spoke of being told to “read between the lines” and eventually travelling to the UK for an abortion that may have lawfully been carried out in Ireland.  A study by Mark Murphy et al from 2012 revealed that more than 40% of respondents (GPs and GPS-in-training) had had a consultation relating to termination of pregnancy in the previous six months.  Ultimately, it appears that both pregnant women and medical practitioners are unclear about when an abortion would be lawful and the consequences in the past have been quite traumatic for the women involved (C of the ABC case couldn’t access a medical termination in the UK as a non-resident and had to wait for a surgical abortion, which was incomplete and led to complications). The consequences for Savita and her family were much more devastating.

The provision of legislation regarding lawful abortions in Ireland would give clear guidance to medical professionals but we cannot lose sight of the fact that it would also make the lives of many Irish women (in very difficult circumstance) much easier and safer. Access to medically necessary terminations in Ireland would:

• remove the necessity to travel,

• make lawful abortions available to all women in need (at the moment some medically necessary abortions appear to be performed but it very much depends on the doctors/hospital and for those who are not supported at home, only women with sufficient funds to travel and pay for an abortion in the UK can access abortions they are legally entitled to)

• allow for more comprehensive pre- and post-abortion care,

• reduce the instances of women procuring medical abortion pills illegally and self-administering them,

• allow women with wanted pregnancies to bury their children (if a foetus is induced in the UK no birth and death certificates will be issued making it impossible to transport the body home).

Linguistic Acrobatics

Dr Houston referred (at around 20:20 mins) to different terms for the kind of procedure involving death of a foetus; he said it can be called surgical evacuation, surgical removal of foetal tissue, surgical termination and abortion although some of these procedures wouldn’t be considered abortion in the “common usage of the term”.  It seems to me that there are two different types of procedure: one that is a termination/abortion (i.e. procedure resulting in death of a foetus) and one that is a medical necessity to prevent infection following natural death of a foetus (removal of foetal tissue, evacuation).  I understand that an evacuation can be performed while there is a foetal heartbeat, in which case it is necessarily an abortion (on a dictionary definition of the term).  Calling it anything else is dishonest.  Some dishonesty might create a distancing effect for medical professionals (and even patients) that is necessary when faced with the difficult situation of having to terminate a wanted pregnancy but this reinforces the social attitudes to abortion.  Rather than distinguishing between procedures, it distinguishes between one set of circumstances (wanted but unviable and possibly life-threatening pregnancy) and others (unwanted, viable pregnancy) even when the means to end a pregnancy in either case could be the same.

The linguistic distinctions alluded to by Dr Houston are not dissimilar to those made by pro-life organisations. A recent meeting co-organised by the president of Youth Defence, Eoghan de Faoite, on maternal health with only pro-life speakers from the obstetric/gynaecology professions resulted in a statement (referred to as the Dublin Declaration), which states that

[a]s experienced practitioners and researchers in obstetrics and gynaecology, we affirm that direct abortion is not medically necessary to save the life of a woman.  We uphold that there is a fundamental difference between abortion, and necessary medical treatments that are carried out to save the life of the mother, even if such treatment results in the loss of life of her unborn child.

There is a couple of issues here. First, some of the research by speakers at this event has been criticised or debunked (e.g. that of Priscilla K Coleman and Elard Koch: see this, and this, and this.)

Second, all speakers at this event are involved in pro-life organisations. On the ‘Who we are’ page of the Youth Defence website, it is stated that

[w]e’re from diverse backgrounds but we’ve one thing in common: we know that abortion is always wrong. That’s why we work to protect mothers and babies from being killed and exploited by the abortion industry.

The assertion that the Declaration is based on medical expertise and that “all organisers were involved in a professional capacity and were not here to represent any pro-life position” is quite disingenuous.  Such strongly held views and such active involvement in campaigning and public engagement on pro-life issues cannot be separated from professional activities that involve only pro-life professionals.  The underlying pro-life commitments of everyone involved in this symposium is problematic only because the organisers refuse to accept that these commitments have anything to do with the central conclusions drawn by that group of people: that abortion is never medically necessary to save the life of the woman.  (My analysis here is undoubtedly influenced by my position in favour of access to safe and legal abortion: I can’t pretend it isn’t.)

Third, the distinction between medically necessary treatments that could involve the loss of the foetus and an abortion is problematic.  There is an implicit Doctrine of Double Effect argument here but that would only make sense if you wanted to justify abortion under certain circumstances (i.e. where it is an unintended but necessary consequence of some other morally good or morally neutral outcome).  Reframing such an abortion as “medically necessary treatment that also destroys the foetus” undermines the need for the DDE at all.  The only possibility in which “medically necessary treatment that also destroys the foetus” does not constitute deliberate termination of pregnancy is in cases of treatment that destroys the foetus only as a side effect (e.g. administration of power drugs to prevent death of woman that kills the foetus at the same time).  However, this undermines the main claim that “abortion is never medically necessary”.  In Savita’s case, failing to remove the foetus once Savita was found to have ruptured membranes and a fully dilated cervix meant leaving her with the neck of the womb fully exposed to infection in a hospital.  When symptoms of sepsis manifested, administration of antibiotics and removal of the foetus were required, administration of antibiotics only and waiting a day for the foetus to die in utero was insufficient to protect Savita’s life.

It must be the case that some “necessary medical treatments” involving the destruction of the foetus includes abortions or that abortions are sometimes necessary to save the life of the woman.

Political Wrangling

Pro-life commentators, and even an Irish senator, have accused pro-choice activists of using this case to “further their agenda”.  This is undoubtedly true but it seems that both sides of the abortion debate have been interpreting Savita’s case in ways that suit them. It should be noted that many of the silent protestors in Dublin held signs demanding government “legislate for X”.  This agenda, however, is not contrary to the Constitutional provision for abortion to save the life of a pregnant woman, nor does this contradict what the pro-life commentators have been saying although they seem determined not to use the term abortion.  It is unclear why pro-life organisations, such as Youth Defence, and Irish Senator, Ronan Mullen object to legislating for the X case judgement, using a linguistic fudge to endorse medically necessary treatment but not abortion, after the Irish people have approved it.

Some protestors also held signs advocating for safe and legal abortion. There are many women and men in Ireland campaigning for this; polls of the medical profession and the public show support for access to abortion beyond grounds of risk to life. Occasionally it is believed that the Irish position on abortion is an example of ‘the tyranny of the majority” but it much more a reflection of the cultural and political power of a vocal minority.

As I said above, I would support legal reform in Ireland to provide broader access to abortion (for reasons I won’t go into here) but such reform is not required to prevent cases like Savita’s arising again.  All that is required is for the government to finally enact legislation first recommended in the X Case and more recently  following the ABC case.  Specific legal guidance on the provision of abortion would have obviated the situation that arose in University Hospital Galway where it is very likely uncertainty about or misunderstanding of the law contributed to delays in treatment and, ultimately, Savita Halappanavar’s death.

I grieve for Savita, who died in a hospital two minutes walk from my home in Galway.  Like her family, I think justice demands that Ireland addresses the problem that at the very least contributed to her avoidable death.  That is not using her as a “political wedge” as Senator Ronan Mullen suggested; that is honouring her.  Furthermore, I grieve for all the women in situations like Savita who fortunately lived to tell the tale of their distress, confusion and mistreatment when the law should have made their difficult situations easier rather than more difficult.

I also grieve for women who wouldn’t be covered by this legislative provision for abortion: women with foetuses who will not survive, women pregnant as a result of rape, women whose health (but not life) is seriously compromised by pregnancy, women who simply cannot afford to raise a child, young women with unsupportive families/partners, women with mental illness for whom pregnancy, child birth and child-rearing threatens their health and quality of life, any woman who is unprepared for pregnancy and a child. All of these women have been silenced and shamed for too long – until a recent series, “Stories of Abortion”, in the Irish Times highlighted the real experiences of women who are prevented from accessing safe and legal abortions in Ireland.  The debate around broader access to abortion must include these voices, which have been largely silenced in the past.

In the widely-read Time article (behind paywall) on Enda Kenny in September this year, the Taoiseach stated that “[the abortion] issue is not of priority for government now”. It should have been.  Inaction by previous governments was cowardly.  Inaction by the current government has proven fatal. Speedy proposals for legislation need to be introduced by 30 November (to meet deadline imposed by the ECHR following the ABC case), enactment is just as urgent.

Acknowledgements

Thanks to Iain Brassington and Sheelagh McGuinness for directing me to some of the links included above. Particular thanks to Sheelagh for checking the legal analysis given here – any remaining mistakes are my own.