The media in Ireland and around the world is reacting today to the news that Savita Halappanavar died in a Galway hospital having reportedly been denied a termination she requested as she went through three days of irretrievable miscarriage. When she was admitted to hospital, it is reported, she was fully dilated and although there was a foetal heartbeat there was no way to save her child. In spite of her pain, and the infection-related risks attendant to having someone fully dilated and bleeding for three days, doctors in the hospital refused her a termination. She subsequently died from septicaemia and E.coli ESBL. This comes in the wake of more than twenty years of frustration at the failure on the part of the Irish political system to put in place a clear process by which people can access abortion in the slim category of cases where it is constitutionally permitted.
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.
And so, following domestic and European litigation, it is clear that successive Irish governments have both resolutely refused to give practical effect to women’s constitutional rights and allowed Ireland to become non-compliant with the European Convention on Human Rights. The choice after A, B & C v Ireland was clear: either put in place a system where medics had clear guidelines about applying the X test or hold (yet another) constitutional referendum to either narrow or broaden the test. What we could not do was nothing.
And yet, the reaction of the government—made up here of an awkward coalition of Fine Gael which promised not to legislate for the X Case and the Labour Party whose election manifesto committed itself to broadening access to abortion—was to appoint an expert committee to recommend steps to implement A, B & C v Ireland. According to the Taoiseach in parliament this morning, that Committee reported to the Minister for Health, Dr James Reilly (left), last night.
Ireland is not unique in being a country that is sharply divided on abortion, but at the same time the constitutional position is—and has long been—entirely clear. Women whose lives are endangered by their pregnancy are entitled to elect for an abortion and to be provided with that abortion in Ireland. Anyone else who wants an abortion is free to travel in order to access it, but providing an abortion outside of the strict limits of the constitutional right in Ireland itself is a serious criminal offence.
The right to access abortion in Ireland could hardly be described as a wide one, but neither is it one that never arises in practice. There has been over twenty years of successive governmental failure to give effect to women’s right to choose abortion in these extremely limited circumstances. This situation is entirely intolerable: this is a constitutional right. The law is not a matter of debate here and constitutional compliance is not a matter of choice. To treat it as if it were is to show a blatant disregard for the rule of law, not to mention for the sovereign will of the people expressed in the Constitution. Whether someone wants the law to say something different to what it does say is a different question altogether. The law is as it is. The people have refused to change it. Women deserve better than this. I cannot imagine another situation in which a representative of the state would go, as the then Attorney General did in A, B & C, to an international court and say that a High Court order can always be secured if needed in order to exercise the right in particular cases and as a result that the right is accessible and can be exercised. I cannot imagine another constitutional right in relation to which politicians would so clearly abandon their political and democratic obligation to uphold people’s constitutional rights. I cannot imagine that we can continue to tolerate this in our state.
I am sure that there are those who will say that this case reflects a failure to implement the Medical Council guidance on abortion (see McGarr Solicitors extracts from the Guide to Professional Conduct and ethics here); a failure in medicine rather than in law. But law can and does work to shape medical practice in order to minimise the potential for such failures to arise, if indeed this is what happened here (and it may not be; we do not yet know). Law tells medics exactly what the test is, what they are required and prohibited from doing in the exercise of their clinical judgement. It is about time that we put in place law–either legislation or ministerial regulations–to guide medics clearly in their professional duties. Anything less in unacceptable both for doctors and, fundamentally, for women.
The death of Savita Halappanavar should provoke outrage in anyone truly concerned about the health of women.
Hopefully the investigation will shed some light on why Mrs. Halappanavar was refused treatment for miscarriage, when this treatment is regularly administered in this country, and is allowed for by the law and by the Medical Council.
The treatment she needed was legal, so there is no question that a change in the law is what is needed here. It is medical negligence that she was not treated urgently.
In cases where the fetus is still alive, the Medical Council in part 21.4 of its guidelines for medical doctors states that treatment is allowed even if “there is little of no hope of the baby surviving”.
The treatment that Mrs. Halappanavar should have received is legal in this country. In fact, it is standard medical procedure in cases like hers. That she wasn’t treated is a failure of the hospital and medical team, not a problem with the law.
I suspect that the medical council will strike off one or more people because of this and rightly so.
The greatest thing we can do to honour Savita’s life is to insist on obstetric excellence – that is what saves women’s lives, not abortion.
It is important to say here that the post uses this case to shine a spotlight on the current legal situation. We do not know whether in fact she fell into the constitutional exception and, more particularly, at what point in time she may have done so. It is important that we do not say otherwise. The case nevertheless exposes the deficiencies in the current abortion regime in Ireland, which is what the post intends to highlight.
The case of Savita Halappanavar is beyond upsetting and my sympathies to her family and friends.
My upset over this case relates to the consistent failure of our legislature to do what is required of them, which is to legislate for the X case. Twice our legislature have tried to roll back the implications of the X case in the 12th and 25th amendment twice the people have said no. Since then we have watched successive governments fail the women (and unfortunately the young girls – in light of X, C and D case) of Ireland.
Since the X case we have had the Report of the Constitution Review Group, the Green Paper on Abortion, The All-Party Committee on the Constitution’s Fifth Progress Report on Abortion – and now we have the Expert Group on A, B and C v Ireland. I think its safe to say its time to stop talking and its time to legislate.

Fiona, I agree with all your comments above. However, as I read both the X judgment and the Medical Council’s guidelines, Savita Halappanavar’s case could have fallen outside of the scope of the ‘constitutional exception’ if the doctors concluded that there was no real and substantive threat to her life at the point of time when she requested a termination, i.e. if they underestimated the risk of infection. I am not suggesting that this was in fact what happened – however, it highlights the fact that the X judgment would appear to make a termination unlawful even if it would prevent a woman suffering the trauma of an extended miscarriage in a situation where there was no realistic possibility of the child surviving. In the (presumably unlikely) event that this was in fact what occurred, giving legislative definition to the ‘constitutional exception’ might not prevent this happening again.
Excellent post, Fiona, and excellent comments so far.
The political dynamics here are very tricky. In terms of concrete(ish) solutions, it might be time to start thinking innovatively.
It is important to recognise (1) the issues involved are extremely complex; and (2) any politician brave enough to raise their head above the parapet will suffer serious political consequences.
Primary legislation would thus be (1) inappropriate and (2) politically unthinkable.
Ministerial or departmental regulations would be (1) appropriate, because detailed guidance could be developed in secondary legislation, but they would be similarly (2) politically unthinkable, because the minister and his (or her) party would bear the consequences.
In those circumstances, establishing an independent body might be the best bet. Such a body could consist of, say, 7 members: doctors, nurses, midwives, ethicists, religious orders, etc.
The body could be charged with holding public consultations around the country, which would be open to all. If carefully selected, such a body could engage in a truly deliberative process.
At the completion of the public consultations, the body could write detailed guidelines. It could even be a standing body, with the power to review the guidelines periodically.
All that the politicians in Leinster House would have to do is pass primary legislation providing for the establishment of such a body and giving it the authority to develop guidelines.
I trust the X judgment itself would provide the necessary guideposts to satisfy the “principles and policies” test, but even if some supplemental guidance is necessary, it could be drafted in sufficiently vague terms that no political price would be payable.
If you had asked me a few years ago, whether I would support quasi legislation for X, I would have been somewhat hostile, wanting the Oireachtas to grasp the nettle and legislate. I am still very uncomfortable with the idea. In Patchett v Leathem the problems with such circulars/administrative measures are highlighted:
But, I think you’re right Paul, since the political system is terrified of legislating for X, some form of administrative circular may be the response-once it is public, accessible etc. However, am very suspicious of such circulars in general. Also raises the issue of political accountability in a supposed republic….
Thanks for comments all; I think that as Colm notes one of the really shocking things about this is that it’s quite possible that in this case the constitutional exception might not have applied (or at least not until it was extremely late) because of the exceptionally narrow nature of the test, but I remain absolutely convinced that a clear articulation of the practice and procedure around the test is required. I also believe a broader availability should exist, but that-while aligned–is a separate question that would of course require constitutional change.