Time for Government to stop talking and legislate


OPINION:The news of Savita Halappanavar’s death in appalling circumstances is a wake-up call for legislators

No more inaction. For 20 years now the lives of Irish women have been put at risk by the failure of successive governments to legislate for the X case.

The news this week of Savita Halappanavar’s death in appalling circumstances at University Hospital Galway is a wake-up call for legislators. The heartbreaking account of her final days, as expressed in the dignified words of her husband, has generated immense grief and outrage nationally. It has also generated a strong sense of shame. It is utterly shameful that our State could have failed a young woman and her family so tragically.

The saddest and most shameful thing of all is that deaths of pregnant women in circumstances such as these were predictable once the 1983 amendment to the Constitution was passed, equating the right to life of the “unborn” with that of the pregnant woman.

That year, Sheila Hodgers died in Drogheda having been refused necessary medical treatment because of her pregnancy. But it took the X case, 20 years ago, to make people see the real implications of the 1983 amendment – that it could mean the refusal of life-saving medical treatment to pregnant women or girls in order to preserve the life of the foetus. The Supreme Court ruled then that because X was suicidal the pregnancy threatened her life, and her right to life should prevail.

The test means abortion is lawful where a woman faces a “real and substantial risk to her life” which can be avoided only by termination of her pregnancy – but no guidance is given to doctors on how to assess “real and substantial risk”.

In his X case judgment, the late Mr Justice Niall McCarthy asked a series of questions that have particularly poignant resonance this week.

Pointing out that the people, in passing the referendum in 1983, were entitled to believe legislation would be introduced to regulate how the right to life of the unborn and that of the pregnant woman could be reconciled, he said: “The failure by the legislature to enact the appropriate legislation is no longer just unfortunate; it is inexcusable. What are pregnant women to do? . . . What are the medical profession to do? They have no guidelines save what may be gleaned from the judgments in this case . . . The amendment . . . remains bare of legislative direction.”

Twenty years on, the amendment remains bare of legislative direction. For those 20 years the debate has been dominated by a group of highly vocal lobbyists, backed by the Catholic Church – the so-called pro-life campaign.

Their intimidatory tactics – currently targeted at Fine Gael deputies and Senators – have scared politicians away from legislating. Over the past few days I have listened in disbelief to their smooth spokespeople arguing that what we really need is yet another referendum to overturn the X case. They also insist abortion is never necessary to save women’s lives – and when it is, they don’t call it abortion.

It is time to confront these discredited arguments. Time to face up to the bullying tactics of those who would seek to return us to a time when Catholic doctrine was enshrined in our law; and to acknowledge the disgraceful failure of our political system to acknowledge the pressing reproductive health needs of women – pregnant women with cancer, such as Michelle Harte; and women who have bravely gone public about their experience of fatal foetal abnormality.

The “pro-life” campaign must not be allowed hijack this debate again. They did so after the X case, and pressed the government into holding a referendum in November 1992 to rule out suicide risk as a ground for abortion. It was defeated. In March 2002, following more anti-choice pressure, a referendum to overturn the X case test was again put to the people. Again the people voted to keep the test. Yet still no legislation.

Mr Justice McCarthy’s words were echoed by the European Court of Human Rights in the ABC case in December 2010. It found the State had breached the human rights of a young woman whose pregnancy posed a risk to her life but who had been forced to travel to England. The court stated the need for a “legislative or regulatory regime providing an accessible and effective procedure by which [she] could have established whether she qualified for a lawful abortion in Ireland”.

The report of the Government’s expert group on how to implement the judgment of the European court has coincidentally been delivered to Minister for Health James Reilly this week. It was originally expected to be ready by the end of June; that was the understanding of the Labour TDs who voted against Clare Daly’s Bill in the Dáil in April. I was heartened then by the words of the Minister, affirming that this would not be the seventh government to fail to legislate since the X case.

This week we have learned a stark lesson about the urgency of legislation. The report must be acted upon swiftly. It should be given to Cabinet next week. The Government has a deadline of November 30th to report to the Council of Europe on the implementation of the ABC judgment. A firm proposal for Government legislation needs to be made by that date.

Such legislation must be supported by all Government TDs and Senators – and should also be supported by the Opposition. It must clarify the principles outlined by the Supreme Court in 1992, affirmed by referendums and given expression in current Medical Council guidelines.

Legislation is necessary to fulfil our international responsibilities, to provide clarity in our law and most importantly to prevent any further uncertainty for doctors. We need to give doctors clear instructions as to when the performance of necessary procedures, including abortion, may be carried out to save the lives of pregnant women.

The courts have spoken. The people have spoken. A young woman has died tragically. It’s time for us to stop talking and legislate.

IVANA BACIKis a Labour Party Senator

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