Savita Halappanavar: Ireland, Abortion and the Politics of Death and Grief

This morning (14 November 2012) the Guardian re­ports on the case of Savita Halappanavar, who died last month at University College Galway, Ireland. It was, we are told, a case of “sudden ma­ternal death”. The Irish Times sets out the facts of the case as follows:

Savita Halappanavar (31), a dentist, presented with back pain at the hos­pital on October 21st, was found to be mis­car­rying, and died of sep­ticaemia a week later.

Her hus­band… says she asked sev­eral times over a three-​day period that the preg­nancy be ter­min­ated. He says that, having been told she was mis­car­rying, and after one day in severe pain, Ms Halappanavar asked for a med­ical termination.

This was re­fused, he says, be­cause the foetal heart­beat was still present and they were told, “this is a Catholic country”.

She spent a fur­ther 2½ days “in agony” until the foetal heart­beat stopped.

The dead foetus was re­moved and Savita was taken to the high de­pend­ency unit and then the in­tensive care unit, where she died of sep­ticaemia on the 28th.

You can also listen to Kitty Holland’s re­port of her in­ter­view with Savita’s wid­ower, Praveen, on Wednesday’s Morning Ireland here. The same edi­tion of the pro­gramme de­scribes the hos­pital and Health Service Executive in­vest­ig­a­tions into her death. These are ongoing.

The Irish re­sponse to this de­bate will turn on the X case. Briefly, this is the 20 year old judg­ment in which the Supreme Court con­firmed that abor­tion is con­sti­tu­tion­ally permissible

… 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, which can only be avoided by the ter­min­a­tion of her pregnancy.

No Irish gov­ern­ment has been willing to le­gis­late for the X case. In con­sequence, women’s ac­cess to abor­tion — even in cases in which the foetus cannot sur­vive for very long and the woman’s life is clearly in jeop­ardy — is a matter of med­ical judg­ment and we don’t know how that judg­ment should be ex­er­cised.

Women can travel abroad for abor­tions, if their cir­cum­stances permit. Applications to permit ter­min­a­tion (“C” in 1998 and “D” in 2007) have been brought to the High Court. But this po­s­i­tion — whereby this con­sti­tu­tional right can only be vin­dic­ated through this plenary pro­cess and the law of med­ical neg­li­gence — is clearly in­ad­equate. Two years ago, in A, B & C v. Ireland, the European Court of Human Rights found that the state’s failure to le­gis­late for con­sti­tu­tion­ally per­mitted abor­tions breaches the right to private and family life:

… that the un­cer­tainty gen­er­ated by the lack of le­gis­lative im­ple­ment­a­tion of Article 40.3.3, and more par­tic­u­larly by the lack of ef­fective and ac­cess­ible pro­ced­ures to es­tab­lish a right to an abor­tion under that pro­vi­sion, has res­ulted in a striking dis­cord­ance between the the­or­et­ical right to a lawful abor­tion in Ireland on grounds of a rel­evant risk to a woman’s life and the reality of its prac­tical implementation.

In re­sponse to the European Court of Human Rights’ judgment, the Government has set up an ex­pert working group. They de­livered their re­port to the Government last night. Troublingly, those who would seek to amend the Constitution to re­move even the ex­isting lim­ited right to abor­tion, have been ar­guing that re­fusal of a med­ical ter­min­a­tion never poses a risk to a mother’s life. The Government is under sig­ni­ficant polit­ical pres­sure to main­tain the con­sti­tu­tional status quo, or even to row it back.

Here is the point. Irish women’s re­pro­ductive autonomy has been sub­ject to the con­trol of minority pro­fes­sion­al­ised re­li­gious (in the sense of con­nec­tion to re­li­gious in­sti­tu­tions) in­terests for gen­er­a­tions. The Irish Times de­scribes the ex­change between Savita, her hus­band, and a hos­pital consultant:

The con­sultant said, ‘As long as there is a foetal heart­beat we can’t do anything’… The con­sultant said it was the law, that this is a Catholic country. Savita said: ‘I am neither Irish nor Catholic’ but they said there was nothing they could do.

Irish people will hear echoes of Brendan Hodgers’ testi­mony on the death of his wife Sheila. They will think of Olivia Kearney, her hus­band and others af­fected by the pe­cu­li­arly Irish prac­tice of sym­physiotomy. The no­tion of the “right to choose” in this con­text shocks and jars.

This right, such as it is, only ap­plies where death is on the ho­rizon. It is re­fused, denied, with­held even at the cost of women’s lives; think of Sheila Hodgers, Michelle HarteAnne Lovett. Think of the women whose cases are not re­ported; who having trav­elled abroad for abor­tion, or having im­ported some abor­ti­fa­cient, place their health at risk be­cause they cannot re­ceive ap­pro­priate aftercare.

The European Court of Human Rights stressed that re­pro­ductive rights must be bal­anced against public mor­ality. But what a bloodthirsty thing this mor­ality is. As Patrick Hanafin has written, Irish law has, for a long time, sac­ri­ficed living cit­izens to pro­tect ‘vir­tual’ ones. Even if this case is the tip­ping point, lib­er­al­isa­tion of the Irish law on re­pro­duc­tion will main­tain an old, deep and abiding con­nec­tion to the politics of death.

I was re­minded this morning of some­thing said re­cently by Donal Barrington, who was the bar­rister for Mary McGee in her Supreme Court case which es­tab­lished the right to mar­ital pri­vacy — in es­sence the right of mar­ried couples to use con­tra­cep­tion. Mary McGee ar­gued that a fur­ther preg­nancy would threaten her life. Barrington re­mem­bers that, on the wit­ness stand, her hus­band was asked whether he was happy to think of his wife using con­tra­cep­tion. He said that he would rather have her use it than “put flowers on her grave”. Irish law must move beyond this old in­sist­ence on taking host­ages, mar­tyrs for rights.

Mairead Enright is Lecturer in Law at the University of Kent

  1 comment for “Savita Halappanavar: Ireland, Abortion and the Politics of Death and Grief

  1. RMB
    15 November 2012 at 6:55 pm

    shame shame shame

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