I’d like to start by saying that I’m an English lawyer, I know very little about Irish law. What I do know, I know from Strasbourg case law, and a three and a half hour human rights tutorial (we got carried away…).
By now I’m sure anyone reading this has heard, even in passing, about the tragic case of Savita Halappanavar, who died after being refused an abortion in University COllege Hospital Galway last month. For the full facts I suggest you read the original article in the Irish Times or this press release by Galway Pro-Choice The story broke on twitter late on Tuesday night, and by Wednesday morning the story was spreading rapidly. There were protests outside the Daíl and the Irish Embassy in London yesterday evening, with more protests to come.
Her death is incredibly sad, and I spent most of yesterday in full pro choice feminist rage mode, which I’m sure was fun for my twitter followers. I’m writing this post in order to give a brief summary of the law, but mostly to address an argument being made that effectively amounts to saying that Irish abortion law is fine, no further legislation is needed and Savita’s death was the result of possible medical failings, rather than restrictive abortion laws (spoilers: I think this argument is rubbish).
Abortion law in Ireland can be fairly simply and quickly covered. Everything hinges on Article 40.3.3 of the Irish Constitution, which states that the unborn have the right to life. The next major development was the X case, a 1992 decision by the Irish Supreme Court. In that case, a 14 year old had become pregnant as the result of rape and was suicidal. She was prevented from getting on a plane to England by a High court injunction. This went to the Supreme Court, who ruled that a woman has a right to abortion if there was a ‘real and substantial risk’ to her life.
That was 20 years ago. The decision has been affirmed by the Irish courts multiple times since then, and two referenda to limit the right have failed. However, no government has legislated to clarify the exception and uncertainty seems to be rife.
2 years ago in A, B, C v Ireland the European Court of Human Rights stressed that legislation was necessary to clarify the situation. The Court took a rather conservative approach to the abortion issue, clearly not wanting to get themselves into a mess by inflaming religious and cultural sensitivities. Only the third applicant, C, was successful, as hers was the only case that involved the X case exception. The most important thing to take from the judgment is that if a State does purport to allow abortion, however limited the circumstances it allows abortion in, it has a positive obligation (ie an obligation to do something, rather than to refrain from doing something) to ensure that effective access to that right is available. Thus legislation setting up a regulatory and procedural framework (so a procedure for resolving disputes between doctors, for example) was required.
An expert panel of lawyers and doctors was set up to report on how best to implement this decision. This panel was due to report in July, but things got delayed. It seems that their report was delivered to the Dail last night.
The facts of the Savita case do not seem to be as simple as we all first thought. I’ve seen it stated in various places (see also the first comment under this piece) that the treatment that was needed is not altogether unusual in Ireland, is allowed under the Medical Council guidelines and would normally be performed without much fuss. Therefore, is the implication, Savita’s death was not the result of Irish abortion law, but simply bad doctors.
This attempt to reframe the issue as one about possible medical negligence, rather than the draconian nature of Ireland’s abortion law is misguided and I think risks undermining the importance of legislation to clarify the constitutional right to an abortion.
First of all, those Medical Guidelines. It is true that section 21 of these guidelines sets out the law on abortion and states that in some situations it might be necessary to intervene by providing an abortion to save the mother’s life. These guidelines and precedent from the Supreme Court in X and subsequent cases is the only guidance that doctors have. When you consider that a doctor performing an illegal abortion faces a life sentence under a Victorian statute (the Offences Against The Person Act 1862, ss58-9) you can quickly see how difficult it is for doctors to make these decisions.
At paragraph 253 of A, B, C v Ireland, the European Court made it clear that these medical guidelines are ineffective as a means of setting out the limits of the right to an abortion, as they are insufficiently precise.
However, the Court has a number of concerns as to the effectiveness of this consultation procedure as a means of establishing the third applicant’s qualification for a lawful abortion in Ireland.
It is first noted that the ground upon which a woman can seek a lawful abortion in Ireland is expressed in broad terms: art.40.3.3, as interpreted by the Supreme Court in the X case, provides that an abortion is available in Ireland 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, including a risk of self harm, which can only be avoided by a termination of the pregnancy. 136 While a constitutional provision of this scope is not unusual, no criteria or procedures have been subsequently laid down in Irish law, whether in legislation, case law or otherwise, by which that risk is to be measured or determined, leading to uncertainty as to its precise application. Indeed, while this constitutional provision 137 qualified ss.58 and 59 of the earlier 1861 Act, 138 those sections have never been amended so that, on their face, they remain in force with their absolute prohibition on abortion and associated serious criminal offences thereby contributing to the lack of certainty for a woman seeking a lawful abortion in Ireland.
Moreover, whether or not the broad right to a lawful abortion in Ireland for which art.40.3.3 provides could be clarified by Irish professional medical guidelines as suggested by the Government, 139 the guidelines do not in any event provide any relevant precision as to the criteria by which a doctor is to assess that risk…
Furthermore, there is no framework whereby any difference of opinion between the woman and her doctor or between different doctors consulted, or whereby an understandable hesitancy on the part of a woman or doctor, could be examined and resolved through a decision which would establish as a matter of law whether a particular case presented a qualifying risk to a woman’s life such that a lawful abortion might be performed.
The question of whether these medical guidelines were properly followed remains to be seen. Indeed, we do not know at this point if Savita fell within the constitutional exception, and if she did, at what point and whether that would have prevented her death.
Nevertheless with a little research, it becomes clear that the lack of clarity is a serious barrier to abortion access for woman in ireland. Take for instance Michelle Harte, who had terminal cancer and was advised by her doctors to terminate her pregnancy. However she was denied access to abortion in ireland because her life was not in ‘immediate threat’, and had to travel to Britain. She is not the only woman who has been unable to access her constitutional right to an abortion (which we must remember is an incredibly narrow right to begin with) because of the failure to clarify the extent of this right.
We cannot let the attempts to redirect and minimize the debate succeed. Eilís Mulroy writes in the Irish times that those who are pro-choice ‘must not hijack’ Savita’s death to use as ‘impetus for legislation that is bad for both women and their babies’. However legislation is clearly needed. Leaving aside your particular views on abortion, it is simply unacceptable that access to a constitutional right is so difficult to acquire. This is a right that has been in place for 20 years, and the Irish people have twice refused to limit it, and yet successive governments have done nothing. That is just a straight forward abuse of the rule of law, which everyone, pro-choice or pro-life, should be opposed to.
Legislation will now almost certainly be brought forward and pushed through quickly. There is simply no way for the government to avoid it now. Whether this legislation would have saved Savita’s life, we cannot say at this point, but her death has shone a spotlight on the lack of clarity in Irish abortion law and will hopefully lead to real progress. We should not forget that this is an incredibly narrow right to abortion – I hope that the uproar at Savita’s death will spur on wider changes than just a clarification of the X exception, but then I always was naive.
Elizabeth Wicks, A, B, C v Ireland: Abortion Law under the European Convention on Human Rights HRLR 2011
Vo v France
A, B and C v Ireland