The Denial of Rights to Abortion in Ireland : The Case of Savita Halappanavar and Its Aftermath
April 30, 2013
By PGPD Intern Madalein Tier
Most of us will remember Savita Halappanavar, the 31 year old woman who died in Galway, Ireland, late last year of septic shock. Savita was 17 weeks pregnant. Her death, described as ‘medical misadventure’, happened after she was refused the dilation and evacuation procedure to remove the fetus; a ‘termination’ of the pregnancy illegal under Ireland’s abortion laws. But even the law in such cases as these, where the mother’s life is at risk, is unclear. What is clear is that a woman suffering hemorrhage and pain sought medical treatment and needlessly died.
Abortion law in Ireland is a mix of archaic provisions and complex distinctions. Obtaining or providing an abortion can result in a prison sentence under the Offences Against the Person Act 1861, which literally predates the Irish state. In 1983 the 8th Amendment of Constitution of Ireland, Article 40.3.3, gave equal weight to the right to life of the unborn and the mother and guarantees in its laws to respect, defend and vindicate those rights.
It is here that the complex distinctions enter into play – while the law acknowledges the right to life of a fetus, it does the same for the mother. Many, including anti-choice activists trying to downplay the backlash that has come in the wake of her death, argue Savita should have been allowed to undergo the procedure as her life was at risk. But this fine distinction is inevitably fraught with conflict; the hospital has since stated that they had no idea at what point legally the patient’s life was under threat.
Savita’s was not the first case to struggle with this distinction. The X Case in 1992 denied the Attorney-General’s application for an injunction to prevent a 14 year old rape victim from procuring an abortion in Britain (like more than 4000 Irish women do every year) finding that the pregnancy proved to be a threat to her life as she was having suicidal thoughts.
The Irish parliament has now overwhelmingly supported the Protection of Life During Pregnancy Bill 2013, which clearly allows for the provision of an abortion in cases of a threat to the life of the mother, including suicide. The latter, however, requires the approval of two psychiatrists and an obstetrician. As commentators have pointed out, a woman seeking such an approval could be placing herself at risk of involuntary psychiatric care by admitting to such thoughts of self-harm. Attempts by female parliamentarians to also allow in the legislation for abortions in the case of pregnancy after rape or incest, were met with too great a resistance. Furthermore, the bill in its final provisions reiterates that abortion outside such circumstances could lead to up to 14 years in jail.
The bill is a long time coming. It is more than 21 years since the judgment in The X Case called for clarification of the distinction between abortion and abortion in the case of threat to life of the mother, joined in 2010 by the European Court of Human Rights when they found that Ireland’s failure to regulate access to abortion had led to a violation of its human rights obligations under several treaties. In the wake of Savita’s death, the UN Special Rapporteur on the Right to Health, Anand Grover, called for the decriminalisation of abortion, stating that it was an obligation for states to do so in order to protect women’s right to health.
While abortion isn’t explicitly mentioned in a single Human Right's instrument Ireland is a party to, it is this, the right to health, that is key in this debate. It is recognised in Article 12 of the International Covenant of Economic, Social and Cultural Rights, and again in Article 12 of the Convention on the Elimination of All Forms of Discrimination against Women. The European Social Charter recognizes the Right to Protection of Health in Article 11. These are all agreements that Ireland is a party to, and legally required to follow (though it is of course largely impossible to compel them to do so).
So while Savita’s death is put down to ‘medical misadventure’ what is really clear is that Ireland’s failure to provide clarity in its abortion laws amounted to failure to protect her right to health. The new laws may overcome this miniscule threshold – clarity – but only by doing the least possible with the highest possible regulation. The strict, and now reinforced, criminalisation of abortion still poses the almost inevitable risk that practitioners will again pull away from providing necessary care for any cases that fall short of absolutely and clearly life threatening, resulting in another case like Savita’s. Furthermore, these laws still violate the right to health of those women who face severe but not strictly life threatening mental or physical consequences of carrying an unwanted pregnancy to term.
At a fundamental level, however, they also persist in restricting any women’s right to choose when and how they found a family, a right enjoyed by women in neighbouring Britain and Scotland. Savita’s husband says that when asking why an abortion couldn’t be performed a nurse from University Hospital Galway said, ‘because Ireland is a Catholic country’. Yet, Savita wasn’t Catholic, nor is more than 15% of Ireland’s population. What is more, of that population 39% believe women should have a right to choice when she deems it in her best interest. This is a number that grows graduallywith every poll. But can women in Ireland, like Savita, really afford to wait for public opinion to catch up to their human rights?
A B and C v Ireland. You can read more about the numerous UN and EU Human Rights reports condemning Ireland’s abortion laws on the Irish Family Planning Association website.
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