Irish Law, “Conscience Clauses,” and Needless Death: Three Questions About Savita Halappanavar’s Death

Numerous questions have arisen in the wake of Savita's case. Why did this happen? Doesn't Ireland, a country with otherwise draconian abortion laws, allow abortion to save the life of the mother? Was there any doubt an abortion was necessary to save Savita's life? Can this happen in the United States? And here are my answers.

University College Hospital, Galway. Photo: Thejournal.ie.

See all our coverage of the tragic case of Savita Halappanavar here.

Last night, we reported on the unnecessary and tragic death of Savita Halappanavar, who entered an Irish hospital undergoing what turned out to be a miscarriage of a wanted pregnancy at 17 weeks, and was denied a life-saving abortion because, as she and her husband were told, Ireland is “a Catholic country.” Translation? Even a non-viable fetus, perhaps already dead but in any case absolutely certain not to survive, is more important than a woman’s life.

Numerous questions have arisen in the wake of this case.

One: Why did this happen? Doesn’t Ireland, a country with otherwise draconian abortion laws, allow abortion to save the life of the mother?

Two: Was there any doubt an abortion was necessary to save Savita’s life?

Three: Can this happen in the United States?

I’ll take these in turn.

The reason this happened is at once very simple and highly complex. It starts with Irish abortion law, and ends with the imposition of a misogynistic ideology on a woman literally begging for mercy from pain and for her own life as she pleaded with her doctors numerous times to perform an abortion on a fetus it was clear would not live.

Current Irish law on abortion is somewhat murky. The country’s laws, like those of most others, have shifted dramatically over the past two centuries, until in the mid-fifties abortion was made illegal in virtually all circumstances. The legal landscape changed again over 20 years ago when the Irish Supreme Court decided that women had a constitutional right to an abortion where there was “real and substantial risk” to the life of the mother. The Supreme Court decision came in response to the case of “X,” who, as a February 2012 article in the New York Times pointed out, was a 14-year-old girl prevented from leaving the country to have an abortion after she became pregnant from rape. After that decision, according to a Human Rights Watch (HRW) report:

 abortion [in Ireland remained] legally restricted in almost all circumstances, with potential penalties of penal servitude for life for both patients and service providers, except where the pregnant woman’s life is in danger.

In its 1992 decision, the Irish Supreme Court also required the government to clarify the conditions under which a legal abortion might take place.

Nonetheless, as we reported in December 2011, Human Rights Watch found that 20 years later:

little legal and policy guidance [exists] on when, specifically, an abortion might be legally performed within Ireland. As a result, some doctors are reluctant even to provide pre-natal screening for severe fetal abnormalities, and very few – if any – women have access to legal abortions at home.

With no legal guidance and highly restrictive abortion laws, the government of Ireland was again taken to court in 2005, when according to AP, “the Irish Family Planning Association took Ireland’s government to court on behalf of three women who had to travel overseas that year for abortions: an Irish woman who had four previous children placed in state care, an Irish woman who didn’t want to become a single mother, and a Lithuanian woman living in Ireland who was in remission from cancer.”

In December 2011, the European Court of Human Rights ruled that Ireland’s strict law forbidding abortions even in dire circumstances violated the right to life of Mrs. C, the pregnant woman suffering from cancer. Based on arguments heard in that case, the 17 judges of the European court arrived at an 11 to 6 verdict charging that Ireland was wrong to keep the legal situation unclear and that the Irish government “had offered no credible explanation for its failure.” Pursuant to that decision, a panel was formed and was supposed to deliver recommendations this past summer to finally clarify the abortion law, but the government still had not acted. Of course, now, in the wake of the global outcry that has erupted over Savita’s death, government officials are rushing to assure that “investigations are going forward.”

This situation leads me to the following conclusions: One, the Catholic Church, long influential in Irish politics and absolutely opposed to *any* softening of, or so-called exceptions to, the longstanding total abortion ban in Ireland (or anywhere for that matter) has almost certainly been lobbying to slow down the process of releasing the new guidance needed to clarify the law and policy. As a result, there is still lack of clarity in whether to allow abortions in cases where, for example, a woman has cancer but is not “on her deathbed,” or a young girl has tried to or is contemplating suicide because she was impregnated by rape. But there is absolutely no lack of clarity in the Irish Supreme Court’s decision that if a woman’s life is indeed in imminent danger, as Savita’s life so clearly was, she has a constitutional right to said abortion.

Two, the medical staff of the hospital denied Savita an abortion even though she was constitutionally guaranteed one to save her life because this was a Catholic hospital and therefore the (to me) questionable “conscience rights” of the institutional Catholic church, the hospital, its doctors, really, whomever was involved there, superceded the right to life of a living, breathing woman. In other words, the Church and its hospitals hold themselves outside the law. [And, it should be noted, they are pushing to expand so-called conscience provisions in U.S. law all the time, so their power over your life is widening.] In my analysis, then, while the government is indeed responsible for confusion in cases where “risk of death” is not quite clear, in this case there should have been no confusion at all as to what to do. What medical professional watches his or her patient in agony for days on end and does not act? One governed by misogynistic religious ideology.

Second question: Was there any doubt Savita needed an abortion? As this case has exploded, anti-choicers are out in force suggesting that perhaps she didn’t really need an abortion and would have died anyway. This question has also been raised by others, such as Dearbhail McDonald, the Legal Editor of IrishTimes.com, who wrote:

We simply do not know, at this early stage, what caused the septicaemia (blood poisoning) that led to her death or whether her death could have been avoided even if her unviable foetus had been removed much earlier. 

Obstetrician-gynecologist and writer Dr. Jen Gunter puts such speculation to rest. She writes:

What does the standard of medical care say about this treatment? Without access to the chart, “miscarrying” at 17 weeks can only mean one of three things:

A) Ruptured membranes

B) Advanced cervical dilation

C) Labor (this is unlikely, although it is possible that she had preterm labor that arrested and left her with scenario B, advanced cervical dilation).

All three of these scenarios have a dismal prognosis, none of which should involve the death of the mother.

Gunter explains each scenario in detail (and I highly recommend you read the full piece) and then concludes:

As Ms. Halappanavar died of an infection, one that would have been brewing for several days if not longer, the fact that a termination was delayed for any reason is malpractice. Infection must always be suspected whenever, preterm labor, premature rupture of the membranes, or advanced premature cervical dilation occurs (one of the scenarios that would have brought Ms. Halappanavar to the hospital).

So no, there was no question what needed to be done. Contrast this, for example, with the case of my own father who, after a stroke of his abdominal aorta was in the hospital for nine months, during which doctors proposed surgery after surgery after procedure, none of which could guarantee a solution to the fundamental physical issues he faced,  complications from which it was clear he would ultimately die. But they insisted on doing everything possible to keep him “alive,” until it became clear to me as his guardian that it was all simply prolonging his suffering. This is how we treat other illnesses in the United States that do not involve the words “woman” or “pregnancy;” we do everything medically possible for the patient to the point of pathology. In the case of a pregnant woman, anti-choicers want to wait to see autopsy results to figure out if she could have been saved.

Finally, can this happen in the United States? To answer this question is simple. It already is happening. In Texas, a state in which the governor and state legislature have what can only be called an obsession with undermining the health and rights of women, cuts to family planning funding and diminishing access to services are pushing desperate women into Mexico to buy drugs to self-induce abortion. Low-income women in states across the country are unable to get access to abortions for any reason, much less for rape, incest, health, or life. So-called 20-week abortion bans based on medically disproven assertions that 20-week old fetuses feel pain (they do not) are working their way through the courts and would result in denial of abortion care to women who miscarried or faced risks to their health or lives, not to mention fetal anomalies or infections of the kind that killed Savita. Personhood amendments seek, quite literally, to declare fertilized eggs to be persons, and women… not to be persons. As I wrote yesterday, no legislative prospect quite excites the GOP-dominated U.S. House of Representatives more than an effort to ban abortion outright or to eliminate funding for contraception, breast and cervical cancer prevention, and other forms of sexual and reproductive health care. These are but a few examples, and others abound. We devote this website to them. Moreover, it is no secret that Catholic hospitals are gobbling up other hospitals throughout the country, leaving an increasing number of women vulnerable to ideologically-based “treatment” when their lives or health may be at risk. Taken together, these conditions are increasingly creating circumstances in which women do not have access either to the means to prevent or plan pregnancy, nor the means to end a pregnancy.

In response to Savita’s death, Sky News reported that: “Her death is expected to spark a backlash against the Irish government, criticised by left-wing members of parliament for failing to introduce new laws to permit abortion in life-threatening circumstances.”

For her, that backlash is too late. For the millions of women and girls around the world still living, it is not. Start demonstrating, start protesting, start telling your representatives that this will not stand. I do not want to lose my daughter to a medical system and government ruled by misogyny and ideology. No one should have to. We can stop this now. It is up to us.