THE FACTS SURROUNDING the Savita Halappanavar case as reported in the Irish Times today are stark as they are upsetting: a woman presented at a hospital and was told that she was having a miscarriage. Three days after, the foetal heartbeat stopped. Four days after that, she died.
The position taken by the hospital for the first three days of her ordeal seems to have been that, as there was a foetal heartbeat, the pregnancy could not be terminated. References have also been made to the fact that a termination was refused on the basis that Ireland is ‘a Catholic country’.
There are two key questions here: where there is no prospect of life outside the womb, is it constitutionally permissible for a pregnancy to be terminated? And second, can medical treatment be refused on religious or moral grounds?
Was it unlawful to terminate the pregnancy?
Termination of pregnancies in Ireland is unlawful unless the circumstances of the case fall within the boundaries set out in the X case in 1992. In that case, the Supreme Court stated that abortion is constitutionally permissible where there is a real and substantial threat to the life of the woman.
Alongside this legal position, the medical profession has clearly established the circumstances in which ‘therapeutic intervention’ is justified which has the effect of terminating foetal life.
In essence, this means that there are certain medical conditions, the medical treatment for which has the effect of terminating a pregnancy: in these circumstances, the termination of foetal life is not considered an ‘abortion’ by the medical profession.
The Chairman of the Institute of Obstetricians and Gynaecologists in his oral comments to the All-Party Oireachtas Committee on the Constitution stated that four conditions will justify such ‘therapeutic intervention’: pre-eclampsia; cancer of the cervix; ectopic pregnancy; and where there is little or no prospect of life outside the womb which could result in the death of both the woman and the foetus.
Terminating pregnancies in these situation, is not, he stated, considered ‘abortion’ by the medical profession, but rather treatment for the underlying condition. The law recognises this through the doctrine of double effect.
This position is further clarified in the Medical Council’s Guide to Professional Conduct and Ethics for Registered Medical Practicioners . On the issue of the life of the woman, the guidelines simply restate the legal position: abortion is illegal unless ‘there is a clear and substantial risk to the life of the mother arising from a threat of suicide.’ In certain circumstances, the question of a threat to the woman’s life will be medically clear.
In other cases, it will not be so apparent whether a threat to life exists or not. This exact issue was at the core of the decision of the European Court of Human Rights in A, B and C. The failure of the legislature to clarify how this assessment is made means that it is almost impossible for any pregnant woman to ensure that her constitutional rights are being protected in these circumstances.
Regarding a threat to foetal life, the Guidelines state that termination of a pregnancy can be required when ‘due to extreme immaturity of the baby, there may be little or no hope of the baby surviving.’ In these circumstances, the guidelines say, it may be necessary to terminate the pregnancy ‘to protect the life of the mother, while making every effort to preserve the life of the baby.’
The case in question concerns both an apparent threat to the life of the woman, as well as an absence of foetal viability. Regarding the former issue, the absence of legislation to guide doctors on how to determine if there is a threat to the life of the woman is exactly why Irish law was found to be incompatible with the European Convention on Human Rights, and why legislation is so urgently required in this context.
The Medical Council Guidelines seem clear on the latter: in these circumstances, termination of pregnancy can be required to save the life of the woman. In these circumstances, which the guidelines admit are ‘rare’, there is no requirement that the life of the woman is in danger; rather it seems to be of a lower standard, where the life of the woman is in need of ‘protection’ rather than ‘saving’.
Indeed, the question might be asked if unviable life is protected by Article 40.3.3°, a question which must be addressed in legislation. Can it really be said that in these circumstances, the right to life of the unborn is ‘equal’ to the right to life of the woman?
Refusing to Treat on the Basis of Religious Beliefs?
As was stated in the X Case, ‘The issue of whether the unborn have a right to life or whether women have a right to have an abortion are moral issues on which there are profound differences and deeply held views throughout the contemporary world.’
So what if a doctor is of the firm belief that foetal life is sacred, and cannot be interfered with in any circumstances? Does she have the right to refuse treatment in these circumstances? Can the religious philosophy of a hospital or of a country determine how a doctor treats her patients?
There is no clear legal position on these issues, but again, the Medical Council Guidelines are clear. The guidelines state that doctors cannot allow their ‘personal moral standards’ to influence their treatment of patients.
Further, if the doctor does have a ‘conscientious objection’ to a particular course of treatment, they must explain this to the patient, ‘and make the names of other doctors available to them.’
What now?
‘The failure by the legislature to enact the appropriate legislation is no longer just unfortunate; it is inexcusable…’
This quote is not taken from a feminist politician, a pro-choice academic or even from the recent decision of the European Court of Human Rights involving abortion in Ireland. Rather, it is taken from a decision of the Supreme Court in the seminal X case decision in 1992. The absence of legislation is no longer inexcusable, it is intolerable.
The legislature was told in no uncertain terms by the European Court of Human Rights that legislation is required. We do not know if the Savita Halappanavar case would have ended differently if this legislation was introduced.
What we do know is that there are circumstances in which women like her have a constitutional right to terminate their pregnancies. Legislation is required urgently to ensure that these rights are protected.
Jennifer Schweppe is a lecturer in Constitutional law at the University of Limerick, editor of ‘The Unborn Child, Article 40.3.3° and Abortion in Ireland: 25 Years of Protection?’ (The Liffey Press, 2008) and author of numerous academic articles on abortion law in Ireland.
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