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.