This is a cross-post from www.criticallegalthinking.com
This morning (14 November 2012) the Guardian reports on the case of Savita Halappanavar, who died last month at University College Hospital Galway, Ireland. It was, we are told, a case of “sudden maternal death”. The Irish Times sets out the facts of the case as follows:
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.
Her husband… says she asked several times over a three-day period that the pregnancy be terminated. He says that, having been told she was miscarrying, and after one day in severe pain, Ms Halappanavar asked for a medical termination.
This was refused, he says, 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.
You can also listen to Kitty Holland’s report of her interview with Savita’s widower, Praveen, on Wednesday’s Morning Ireland here. The same edition of the programme describes the hospital and Health Service Executive investigations into her death. These are ongoing.
The Irish response to this debate will turn on the X case. Briefly, this is the 20 year old judgment in which the Supreme Court confirmed that abortion is constitutionally permissible
… if 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.
No Irish government has been willing to legislate for the X case. In consequence, women’s access to abortion — even in cases in which the foetus cannot survive for very long and the woman’s life is clearly in jeopardy — is a matter of medical judgment and we don’t know how that judgment should be exercised.
Women can travel abroad for abortions, if their circumstances permit. Applications to permit termination (“C” in 1998 and “D” in 2007) have been brought to the High Court. But this position — whereby this constitutional right can only be vindicated through this plenary process and the law of medical negligence — is clearly inadequate. Two years ago, in A, B & C v. Ireland, the European Court of Human Rights found that the state’s failure to legislate for constitutionally permitted abortions breaches the right to private and family life:
… that the uncertainty generated by the lack of legislative implementation of Article 40.3.3, and more particularly by the lack of effective and accessible procedures to establish a right to an abortion under that provision, has resulted in a striking discordance between the theoretical right to a lawful abortion in Ireland on grounds of a relevant risk to a woman’s life and the reality of its practical implementation.
In response to the European Court of Human Rights’ judgment, the Government has set up an expert working group. They delivered their report to the Government last night. Troublingly, those who would seek to amend the Constitution to remove even the existing limited right to abortion, have been arguing that refusal of a medical termination never poses a risk to a mother’s life. The Government is under significant political pressure to maintain the constitutional status quo, or even to row it back.
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.
This right, such as it is, only applies where death is on the horizon. It is refused, denied, withheld even at the cost of women’s lives; think of Sheila Hodgers, Michelle Harte, Anne Lovett. Think of the women whose cases are not reported; who having travelled abroad for abortion, or having imported some abortifacient, place their health at risk because they cannot receive appropriate aftercare.
The European Court of Human Rights stressed that reproductive rights must be balanced against public morality. But what a bloodthirsty thing this morality is. As Patrick Hanafin has written, Irish law has, for a long time, sacrificed living citizens to protect ‘virtual’ ones. Even if this case is the tipping point, liberalisation of the Irish law on reproduction will maintain an old, deep and abiding connection to the politics of death.
I was reminded this morning of something said recently by Donal Barrington, who was the barrister for Mary McGee in her Supreme Court case which established the right to marital privacy — in essence the right of married couples to use contraception. Mary McGee argued that a further pregnancy would threaten her life. Barrington remembers that, on the witness stand, her husband was asked whether he was happy to think of his wife using contraception. He said that he would rather have her use it than “put flowers on her grave”. Irish law must move beyond this old insistence on taking hostages, martyrs for rights.