Time for an abortion law to stop Irish women suffering

Thu, Nov 22, 2012, 00:00

OPINION:The Government needs to introduce robust legislation that provides clarity for women facing health risks

When I argued a case challenging Ireland’s ban on abortion before the European Court of Human Rights (ECHR), I told the story of my client Ms C, who had been battling cancer and had had no option but to travel to England to obtain an abortion when she became pregnant.

Ms C’s doctors had refused to provide even basic information about the risk that continuation of pregnancy posed to her life. The human rights court found this to be a clear violation of her rights under the European Convention on Human Rights. It demanded that Ireland reform its abortion laws. The case was a major victory for women’s health and rights.

But the victory exists only on paper and not in practice, as is strongly indicated by the tragic case of Savita Halappanavar.

According to the account of her husband, Praveen, as Ms Halappanavar’s health deteriorated they both begged her doctors for medically necessary treatment. Even after her doctors acknowledged there was no chance her foetus would survive, they allegedly refused to terminate the pregnancy as long as they could detect a foetal heartbeat. Ms Halappanavar slipped in to a coma and her tragic demise rapidly ensued.

Despite what abortion opponents and the State have argued, life-saving abortion procedures are unavailable in Ireland.

Two years ago the ECHR was particularly disturbed that Ms C, like Ms Halappanavar, had no procedures available to establish her qualification for lawful, life-saving abortion within Ireland.

The court said “this deficiency is not merely an oversight: since 1992, successive governments have ignored observations by the judiciary and political bodies that such legislation is urgent”.

Dismissing the State’s obfuscating com- mittee reports, the court said the Government had “done nothing to alleviate this situation and have failed utterly to produce any practical guidelines”.

Silence and stigma

Decades before Ms C’s case was heard in Strasbourg, the Supreme Court had held in the X case that women and girls must be allowed access to life-saving abortion. Now, 20 years later, while worldwide demonstrations and a human rights court ruling call again for action on Ireland’s abortion laws, women continue to suffer.

Why did Ms Halappanavar die while under medical care? Her husband was quoted as saying his wife’s doctors said it was because Ireland is “a Catholic country”. More than being a predominantly Catholic country, however, Ireland is the jewel in the crown of the anti-abortion movement. Anti-abortion advocates claim Ireland as their success story.

The rate of abortion among Irish women is similar to, and in some cases higher, than countries where abortion is legal. It’s just that Irish women don’t have abortions in Ireland – they travel abroad for legal abortion services.

This helps maintain the silence and stigma around abortion, as does labelling it a criminal activity. A doctor caught performing or assisting an abortion in Ireland can lose his or her medical licence and faces severe criminal penalties.

Women who seek abortions risk criminal penalties up to and including life imprisonment. Despite the lack of prosecutions, the severity of Irish law and the unrelenting stigma of abortion have coloured all medical discussions around care for women experiencing problem pregnancies. And it has seriously diminished the care Irish doctors can provide for women and girls in crisis pregnancies.

The debate about life-saving abortions has proved to be a viable strategy for abortion opponents worldwide. By exploiting the bogus distinction between preserving a woman’s life or her health, anti-abortion extremists make their views more palatable to a broader majority.

But in medicine there often are not clear, bright lines. There are, for instance, no guidelines for doctors on the distinction between a medical procedure necessary to preserve a woman’s life and a procedure to “merely” protect her health.

Should a pregnant woman sit in a doctor’s office or a hospital bed waiting for her health to decline to the point where her doctor feels an abortion is unarguably legal? While investigations are only beginning, it is already clear Ms Halappanavar’s doctors were acting under an unworkable regime of laws.

Those laws never allowed her doctors place her healthcare unequivocally first.

Two years after soundly losing the case at the ECHR, the Government is still dragging its heels. It found temporary refuge from dealing with the issue by establishing the “expert group”.

Now that the publication of that group’s report in response to the court’s ruling is – it is hoped – imminent, it would be wise for the Government to provide finally a genuine framework for women to receive abortions where medically necessary.

Legal clarity required

No grey areas can be acceptable. The political comfort zone on abortion needs to shift. The response to the expert group report must be robust legislation that provides clarity for doctors and proper services for pregnant women and girls facing risks to their health. Anything less may be open to challenge and, more importantly, would leave pregnant women at risk every day in Ireland.

Laws must not be allowed to muddle or delay the medical treatment a doctor can provide for a pregnant woman. The ECHR recognised that the “considerable anxiety and suffering” that women in Ireland face when their lives or health may be threatened by pregnancy is a violation of human rights.

Savita Halappanavar’s death tragically demonstrates what happens when we allow women’s human rights to be subsumed by religious views or put to a popular vote. Let us hope her death inspires the political and legal change needed to stop the suffering that criminalising abortion services causes for women and girls.


Julie F Kay is a human rights lawyer. She represented the three women in the ABC case at the ECHR.

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