Commentary Abortion

Irish Law, “Conscience Clauses,” and Needless Death: Three Questions About Savita Halappanavar’s Death

Jodi Jacobson

Numerous questions have arisen in the wake of Savita's case. Why did this happen? Doesn't Ireland, a country with otherwise draconian abortion laws, allow abortion to save the life of the mother? Was there any doubt an abortion was necessary to save Savita's life? Can this happen in the United States? And here are my answers.

See all our coverage of the tragic case of Savita Halappanavar here.

Last night, we reported on the unnecessary and tragic death of Savita Halappanavar, who entered an Irish hospital undergoing what turned out to be a miscarriage of a wanted pregnancy at 17 weeks, and was denied a life-saving abortion because, as she and her husband were told, Ireland is “a Catholic country.” Translation? Even a non-viable fetus, perhaps already dead but in any case absolutely certain not to survive, is more important than a woman’s life.

Numerous questions have arisen in the wake of this case.

One: Why did this happen? Doesn’t Ireland, a country with otherwise draconian abortion laws, allow abortion to save the life of the mother?

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Two: Was there any doubt an abortion was necessary to save Savita’s life?

Three: Can this happen in the United States?

I’ll take these in turn.

The reason this happened is at once very simple and highly complex. It starts with Irish abortion law, and ends with the imposition of a misogynistic ideology on a woman literally begging for mercy from pain and for her own life as she pleaded with her doctors numerous times to perform an abortion on a fetus it was clear would not live.

Current Irish law on abortion is somewhat murky. The country’s laws, like those of most others, have shifted dramatically over the past two centuries, until in the mid-fifties abortion was made illegal in virtually all circumstances. The legal landscape changed again over 20 years ago when the Irish Supreme Court decided that women had a constitutional right to an abortion where there was “real and substantial risk” to the life of the mother. The Supreme Court decision came in response to the case of “X,” who, as a February 2012 article in the New York Times pointed out, was a 14-year-old girl prevented from leaving the country to have an abortion after she became pregnant from rape. After that decision, according to a Human Rights Watch (HRW) report:

 abortion [in Ireland remained] legally restricted in almost all circumstances, with potential penalties of penal servitude for life for both patients and service providers, except where the pregnant woman’s life is in danger.

In its 1992 decision, the Irish Supreme Court also required the government to clarify the conditions under which a legal abortion might take place.

Nonetheless, as we reported in December 2011, Human Rights Watch found that 20 years later:

little legal and policy guidance [exists] on when, specifically, an abortion might be legally performed within Ireland. As a result, some doctors are reluctant even to provide pre-natal screening for severe fetal abnormalities, and very few – if any – women have access to legal abortions at home.

With no legal guidance and highly restrictive abortion laws, the government of Ireland was again taken to court in 2005, when according to AP, “the Irish Family Planning Association took Ireland’s government to court on behalf of three women who had to travel overseas that year for abortions: an Irish woman who had four previous children placed in state care, an Irish woman who didn’t want to become a single mother, and a Lithuanian woman living in Ireland who was in remission from cancer.”

In December 2011, the European Court of Human Rights ruled that Ireland’s strict law forbidding abortions even in dire circumstances violated the right to life of Mrs. C, the pregnant woman suffering from cancer. Based on arguments heard in that case, the 17 judges of the European court arrived at an 11 to 6 verdict charging that Ireland was wrong to keep the legal situation unclear and that the Irish government “had offered no credible explanation for its failure.” Pursuant to that decision, a panel was formed and was supposed to deliver recommendations this past summer to finally clarify the abortion law, but the government still had not acted. Of course, now, in the wake of the global outcry that has erupted over Savita’s death, government officials are rushing to assure that “investigations are going forward.”

This situation leads me to the following conclusions: One, the Catholic Church, long influential in Irish politics and absolutely opposed to *any* softening of, or so-called exceptions to, the longstanding total abortion ban in Ireland (or anywhere for that matter) has almost certainly been lobbying to slow down the process of releasing the new guidance needed to clarify the law and policy. As a result, there is still lack of clarity in whether to allow abortions in cases where, for example, a woman has cancer but is not “on her deathbed,” or a young girl has tried to or is contemplating suicide because she was impregnated by rape. But there is absolutely no lack of clarity in the Irish Supreme Court’s decision that if a woman’s life is indeed in imminent danger, as Savita’s life so clearly was, she has a constitutional right to said abortion.

Two, the medical staff of the hospital denied Savita an abortion even though she was constitutionally guaranteed one to save her life because this was a Catholic hospital and therefore the (to me) questionable “conscience rights” of the institutional Catholic church, the hospital, its doctors, really, whomever was involved there, superceded the right to life of a living, breathing woman. In other words, the Church and its hospitals hold themselves outside the law. [And, it should be noted, they are pushing to expand so-called conscience provisions in U.S. law all the time, so their power over your life is widening.] In my analysis, then, while the government is indeed responsible for confusion in cases where “risk of death” is not quite clear, in this case there should have been no confusion at all as to what to do. What medical professional watches his or her patient in agony for days on end and does not act? One governed by misogynistic religious ideology.

Second question: Was there any doubt Savita needed an abortion? As this case has exploded, anti-choicers are out in force suggesting that perhaps she didn’t really need an abortion and would have died anyway. This question has also been raised by others, such as Dearbhail McDonald, the Legal Editor of IrishTimes.com, who wrote:

We simply do not know, at this early stage, what caused the septicaemia (blood poisoning) that led to her death or whether her death could have been avoided even if her unviable foetus had been removed much earlier. 

Obstetrician-gynecologist and writer Dr. Jen Gunter puts such speculation to rest. She writes:

What does the standard of medical care say about this treatment? Without access to the chart, “miscarrying” at 17 weeks can only mean one of three things:

A) Ruptured membranes

B) Advanced cervical dilation

C) Labor (this is unlikely, although it is possible that she had preterm labor that arrested and left her with scenario B, advanced cervical dilation).

All three of these scenarios have a dismal prognosis, none of which should involve the death of the mother.

Gunter explains each scenario in detail (and I highly recommend you read the full piece) and then concludes:

As Ms. Halappanavar died of an infection, one that would have been brewing for several days if not longer, the fact that a termination was delayed for any reason is malpractice. Infection must always be suspected whenever, preterm labor, premature rupture of the membranes, or advanced premature cervical dilation occurs (one of the scenarios that would have brought Ms. Halappanavar to the hospital).

So no, there was no question what needed to be done. Contrast this, for example, with the case of my own father who, after a stroke of his abdominal aorta was in the hospital for nine months, during which doctors proposed surgery after surgery after procedure, none of which could guarantee a solution to the fundamental physical issues he faced,  complications from which it was clear he would ultimately die. But they insisted on doing everything possible to keep him “alive,” until it became clear to me as his guardian that it was all simply prolonging his suffering. This is how we treat other illnesses in the United States that do not involve the words “woman” or “pregnancy;” we do everything medically possible for the patient to the point of pathology. In the case of a pregnant woman, anti-choicers want to wait to see autopsy results to figure out if she could have been saved.

Finally, can this happen in the United States? To answer this question is simple. It already is happening. In Texas, a state in which the governor and state legislature have what can only be called an obsession with undermining the health and rights of women, cuts to family planning funding and diminishing access to services are pushing desperate women into Mexico to buy drugs to self-induce abortion. Low-income women in states across the country are unable to get access to abortions for any reason, much less for rape, incest, health, or life. So-called 20-week abortion bans based on medically disproven assertions that 20-week old fetuses feel pain (they do not) are working their way through the courts and would result in denial of abortion care to women who miscarried or faced risks to their health or lives, not to mention fetal anomalies or infections of the kind that killed Savita. Personhood amendments seek, quite literally, to declare fertilized eggs to be persons, and women… not to be persons. As I wrote yesterday, no legislative prospect quite excites the GOP-dominated U.S. House of Representatives more than an effort to ban abortion outright or to eliminate funding for contraception, breast and cervical cancer prevention, and other forms of sexual and reproductive health care. These are but a few examples, and others abound. We devote this website to them. Moreover, it is no secret that Catholic hospitals are gobbling up other hospitals throughout the country, leaving an increasing number of women vulnerable to ideologically-based “treatment” when their lives or health may be at risk. Taken together, these conditions are increasingly creating circumstances in which women do not have access either to the means to prevent or plan pregnancy, nor the means to end a pregnancy.

In response to Savita’s death, Sky News reported that: “Her death is expected to spark a backlash against the Irish government, criticised by left-wing members of parliament for failing to introduce new laws to permit abortion in life-threatening circumstances.”

For her, that backlash is too late. For the millions of women and girls around the world still living, it is not. Start demonstrating, start protesting, start telling your representatives that this will not stand. I do not want to lose my daughter to a medical system and government ruled by misogyny and ideology. No one should have to. We can stop this now. It is up to us.

Analysis Abortion

Legislators Have Introduced 445 Provisions to Restrict Abortion So Far This Year

Elizabeth Nash & Rachel Benson Gold

So far this year, legislators have introduced 1,256 provisions relating to sexual and reproductive health and rights. However, states have also enacted 22 measures this year designed to expand access to reproductive health services or protect reproductive rights.

So far this year, legislators have introduced 1,256 provisions relating to sexual and reproductive health and rights. Of these, 35 percent (445 provisions) sought to restrict access to abortion services. By midyear, 17 states had passed 46 new abortion restrictions.

Including these new restrictions, states have adopted 334 abortion restrictions since 2010, constituting 30 percent of all abortion restrictions enacted by states since the U.S. Supreme Court decision in Roe v. Wade in 1973. However, states have also enacted 22 measures this year designed to expand access to reproductive health services or protect reproductive rights.

Mid year state restrictions

 

Signs of Progress

The first half of the year ended on a high note, with the U.S. Supreme Court handing down the most significant abortion decision in a generation. The Court’s ruling in Whole Woman’s Health v. Hellerstedt struck down abortion restrictions in Texas requiring abortion facilities in the state to convert to the equivalent of ambulatory surgical centers and mandating that abortion providers have admitting privileges at a local hospital; these two restrictions had greatly diminished access to services throughout the state (see Lessons from Texas: Widespread Consequences of Assaults on Abortion Access). Five other states (Michigan, Missouri, Pennsylvania, Tennessee, and Virginia) have similar facility requirements, and the Texas decision makes it less likely that these laws would be able to withstand judicial scrutiny (see Targeted Regulation of Abortion Providers). Nineteen other states have abortion facility requirements that are less onerous than the ones in Texas; the fate of these laws in the wake of the Court’s decision remains unclear. 

Ten states in addition to Texas had adopted hospital admitting privileges requirements. The day after handing down the Texas decision, the Court declined to review lower court decisions that have kept such requirements in Mississippi and Wisconsin from going into effect, and Alabama Gov. Robert Bentley (R) announced that he would not enforce the state’s law. As a result of separate litigation, enforcement of admitting privileges requirements in Kansas, Louisiana, and Oklahoma is currently blocked. That leaves admitting privileges in effect in Missouri, North Dakota, Tennessee and Utah; as with facility requirements, the Texas decision will clearly make it harder for these laws to survive if challenged.

More broadly, the Court’s decision clarified the legal standard for evaluating abortion restrictions. In its 1992 decision in Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court had said that abortion restrictions could not impose an undue burden on a woman seeking to terminate her pregnancy. In Whole Woman’s Health, the Court stressed the importance of using evidence to evaluate the extent to which an abortion restriction imposes a burden on women, and made clear that a restriction’s burdens cannot outweigh its benefits, an analysis that will give the Texas decision a reach well beyond the specific restrictions at issue in the case.

As important as the Whole Woman’s Health decision is and will be going forward, it is far from the only good news so far this year. Legislators in 19 states introduced a bevy of measures aimed at expanding insurance coverage for contraceptive services. In 13 of these states, the proposed measures seek to bolster the existing federal contraceptive coverage requirement by, for example, requiring coverage of all U.S. Food and Drug Administration approved methods and banning the use of techniques such as medical management and prior authorization, through which insurers may limit coverage. But some proposals go further and plow new ground by mandating coverage of sterilization (generally for both men and women), allowing a woman to obtain an extended supply of her contraceptive method (generally up to 12 months), and/or requiring that insurance cover over-the-counter contraceptive methods. By July 1, both Maryland and Vermont had enacted comprehensive measures, and similar legislation was pending before Illinois Gov. Bruce Rauner (R). And, in early July, Hawaii Gov. David Ige (D) signed a measure into law allowing women to obtain a year’s supply of their contraceptive method.

071midyearstatecoveragetable

But the Assault Continues

Even as these positive developments unfolded, the long-standing assault on sexual and reproductive health and rights continued apace. Much of this attention focused on the release a year ago of a string of deceptively edited videos designed to discredit Planned Parenthood. The campaign these videos spawned initially focused on defunding Planned Parenthood and has grown into an effort to defund family planning providers more broadly, especially those who have any connection to abortion services. Since last July, 24 states have moved to restrict eligibility for funding in several ways:

  • Seventeen states have moved to limit family planning providers’ eligibility for reimbursement under Medicaid, the program that accounts for about three-fourths of all public dollars spent on family planning. In some cases, states have tried to exclude Planned Parenthood entirely from such funding. These attacks have come via both administrative and legislative means. For instance, the Florida legislature included a defunding provision in an omnibus abortion bill passed in March. As the controversy grew, the Centers for Medicare and Medicaid Services, the federal agency that administers Medicaid, sent a letter to state officials reiterating that federal law prohibits them from discriminating against family planning providers because they either offer abortion services or are affiliated with an abortion provider (see CMS Provides New Clarity For Family Planning Under Medicaid). Most of these state attempts have been blocked through legal challenges. However, a funding ban went into effect in Mississippi on July 1, and similar measures are awaiting implementation in three other states.
  • Fourteen states have moved to restrict family planning funds controlled by the state, with laws enacted in four states. The law in Kansas limits funding to publicly run programs, while the law in Louisiana bars funding to providers who are associated with abortion services. A law enacted in Wisconsin directs the state to apply for federal Title X funding and specifies that if this funding is obtained, it may not be distributed to family planning providers affiliated with abortion services. (In 2015, New Hampshire moved to deny Title X funds to Planned Parenthood affiliates; the state reversed the decision in 2016.) Finally, the budget adopted in Michigan reenacts a provision that bars the allocation of family planning funds to organizations associated with abortion. Notably, however, Virginia Gov. Terry McAuliffe (D) vetoed a similar measure.
  • Ten states have attempted to bar family planning providers’ eligibility for related funding, including monies for sexually transmitted infection testing and treatment, prevention of interpersonal violence, and prevention of breast and cervical cancer. In three of these states, the bans are the result of legislative action; in Utah, the ban resulted from action by the governor. Such a ban is in effect in North Carolina; the Louisiana measure is set to go into effect in August. Implementation of bans in Ohio and Utah has been blocked as a result of legal action.

071midyearstateeligibilitytable

The first half of 2016 was also noteworthy for a raft of attempts to ban some or all abortions. These measures fell into four distinct categories:

  • By the end of June, four states enacted legislation to ban the most common method used to perform abortions during the second trimester. The Mississippi and West Virginia laws are in effect; the other two have been challenged in court. (Similar provisions enacted last year in Kansas and Oklahoma are also blocked pending legal action.)
  • South Carolina and North Dakota both enacted measures banning abortion at or beyond 20 weeks post-fertilization, which is equivalent to 22 weeks after the woman’s last menstrual period. This brings to 16 the number of states with these laws in effect (see State Policies on Later Abortions).
  • Indiana and Louisiana adopted provisions banning abortions under specific circumstances. The Louisiana law banned abortions at or after 20 weeks post-fertilization in cases of diagnosed genetic anomaly; the law is slated to go into effect on August 1. Indiana adopted a groundbreaking measure to ban abortion for purposes of race or sex selection, in cases of a genetic anomaly, or because of the fetus’ “color, national origin, or ancestry”; enforcement of the measure is blocked pending the outcome of a legal challenge.
  • Oklahoma Gov. Mary Fallin (R) vetoed a sweeping measure that would have banned all abortions except those necessary to protect the woman’s life.

071midyearstateabortionstable

In addition, 14 states (Alaska, Arizona, Florida, Georgia, Idaho, Indiana, Iowa, Kentucky, Louisiana, Maryland, South Carolina, South Dakota, Tennessee and Utah) enacted other types of abortion restrictions during the first half of the year, including measures to impose or extend waiting periods, restrict access to medication abortion, and establish regulations on abortion clinics.

Zohra Ansari-Thomas, Olivia Cappello, and Lizamarie Mohammed all contributed to this analysis.

News Politics

David Daleiden Brags About Discredited Smear Campaign at GOP Convention

Amy Littlefield

Daleiden’s claims about the videos’ impact on Planned Parenthood contrast with a recent poll showing that support for Planned Parenthood has increased in the aftermath of the Center for Medical Progress' anti-choice smear videos.

David Daleiden, a year after he began releasing secretly recorded and deceptively edited videos claiming to show Planned Parenthood officials were illegally profiting from fetal tissue donation, appeared to boast about the videos’ purported impact at a luncheon during the Republican National Convention (RNC).

“I think it’s very clear that one year later, Planned Parenthood is on the brink, they’re on the precipice,” Daleiden said at the event, co-hosted by the Family Research Council Action and the Susan B. Anthony List. “Their client numbers are down by at least 10 percent, their abortion numbers are down, their revenues are down and their clinics are closing.”

The luncheon took place at the Hyde Park Prime Steakhouse, near the Quicken Loans Arena in Cleveland, Ohio, where the Republican National Convention is underway. Also in attendance at Wednesday’s luncheon were a slate of Republican anti-choice politicians, including Mississippi Gov. Phil Bryant, Kansas Gov. Sam Brownback, former Texas Gov. Rick Perry, Nebraska Sen. Deb Fischer, and North Carolina Rep. Virginia Foxx.

Daleiden—who is under felony indictment in Texas and the subject of lawsuits in California for his actions in filming the undercover videos—touted efforts to defund Planned Parenthood by state Republican legislators and governors, who used the Center for Medical Progress (CMP) smear videos as a basis for investigations. Those defunding attempts have been blocked by federal court order in several cases.

He celebrated Planned Parenthood’s announcement that it would close two and consolidate four health centers in Indiana, an effort Planned Parenthood of Indiana and Kentucky said would “allow patients to receive affordable, quality health care with extended hours at the newly consolidated locations.” Daleiden made no mention of last month’s Supreme Court decision overturning abortion restrictions in Texas, which dealt the anti-choice movement its worst legal defeat in decades.

“One year ago now, from the release of those videos, I think it’s actually safe to say that Planned Parenthood has never been more on the defensive in their entire 100 years of history, and the pro-life movement has never been stronger,” Daleiden said.

While his tone was victorious, Daleiden appeared to avoid directly claiming credit for the supposed harm done to Planned Parenthood. In a federal racketeering lawsuit brought against Daleiden and his co-defendants, Planned Parenthood has argued that Daleiden should compensate the organization for the harm that his smear campaign caused.

Republican congressional lawmakers have held at least five hearings and as many defunding votes against Planned Parenthood in the year since the videos’ release. Not a single state or federal investigation has produced evidence of wrongdoing.

Daleiden’s claims about the videos’ impact on Planned Parenthood contrast with a recent NBC/Wall Street Journal poll showing that support for Planned Parenthood has increased in the aftermath of the CMP smear videos.