Commentary Abortion

Silence and Denial Don’t Work: Ireland, Malta, the European Union and the Lessons of Savita’s Death

Johanna Westeson

What do Malta and Ireland have in common, that is in addition to being under strong Catholic Church influence and that the women living there are taking the toll (as always)? They are also both members of the EU. 

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

Much has been said about the tragic death of Savita Halappanavar in Galway, Ireland last month. Even before seeing the outcome of the official investigation we can conclude that her death was the result of a combination of factors: inhumane laws, lack of guidelines on how to apply the laws that do exist, fear of prosecution on behalf of doctors, medical incompetence, influences of the most conservative wing of the Catholic Church over hospitals, and—as pointed out recently by Jodi Jacobson—a general climate of misogyny, poisoning both the medical establishment and society at large.

Twenty years ago, the Irish Supreme Court established that abortion is legal when a pregnant woman’s life is in danger. More specifically, it ruled that termination of pregnancy is lawful “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 a termination of the pregnancy.” Please note how restrictive these words are: “real and substantial risk” and “life, as distinct from the health.” With due respect for a court that took a courageous step forward in a country where the issue of abortion is and was taboo under any circumstance, it is remarkable how the ruling goes out of its way to make this exception to the abortion ban as narrow as possible. Anyhow, these are the parameters. It is the law of the land.

But nobody knows how this rule should be understood because there is no further guidance. No written law, no guidelines, no official interpretation. So doctors in Ireland, whether pro- or anti-choice, whether in Catholic hospitals or elsewhere, must navigate around this. It may be that in Savita Halappanavar’s case, the situation was crystal clear: her life was in danger, the situation was acute, an abortion would probably have saved her, and doctors refused her care because they favored the life of her unviable fetus over hers. It is even likely that this was the case. But in most situations, threats to the life and health of the pregnant woman cannot be so clearly distinguished. Usually, a threat to life is preceded by a threat to health. So is a doctor to wait until a critical health situation turns into a life-threatening situation? It appears that way. How does this correspond with medical ethics? It doesn’t. I do not envy ob/gyns in Ireland. I cannot imagine the agony that they, or many of them, must experience when a woman shows up with pregnancy-related complications. This is not to take away any of the responsibility from those doctors or the hospital that treated, or mistreated, Savita Halappanavar. It is only to shed light on the context in which they are operating.

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The Irish government thus refuses to make life a tad easier for doctors and thereby out of sheer cowardliness refuses to prioritize women’s right to life. Related is its general “no-see, no-hear” approach to the issue of abortion. As described brilliantly in a recent piece in the Irish Times, the government wishes that abortion didn’t exist so pretends that it doesn’t exist. There is no data on abortion in Ireland. Abortion under certain circumstances is supposed to be legal, but the government gathers no statistics on its occurrence. When asked a few years ago by the European Court of Human Rights how often the constitutional right to terminate a life-threatening pregnancy is practiced in Ireland, the government answered that it does not know. Because it is struggling to find out, but hospitals and doctors conceal this critical information? Of course not. It is because the government wants to uphold the myth that yes, theoretically such terminations are legal—this is convenient to report to human rights bodies and the UN, for example—but really, pregnancies don’t tend to threaten anybody’s life and so this  theory does not have to be turned into practice. Shouldn’t pregnancy be a happy occasion, after all? Let’s pretend it always is.

In Malta, another island-nation on the outskirts of Europe, abortion is banned altogether. Not only in practice but also on paper; under no circumstances is the termination of pregnancy allowed. Malta is heavily influenced by Catholic Church policies and there tend to be strong links between the Vatican and the Maltese political class. No official statistics on abortions exist in Malta either, but it is well-known that a number of Maltese women travel to the UK and to Italy for terminations every year. In contrast to Ireland, very little opposition to the harsh law is aired. Not because nobody thinks the law is unjust, but because, as one Maltese anthropologist recently pointed out, in Malta the issue tends to be discussed in terms of life or death for babies, and “who wants to kill little babies?”

What do Malta and Ireland have in common, that is in addition to being under strong Catholic Church influence and that the women living there are taking the toll (as always)? They are also both members of the European Union (EU). And being part of the EU means that they both nominate members to the European Commission, the Union’s powerful executive body. The European Commission members, or commissioners, are supposed to serve not as representatives of their home countries but as officials of the Union, as experts who will pursue the interests of the EU as a whole. Now, Malta is one of the smallest member states. And health is an issue on the outskirts of the EU’s mandate. In health matters the EU cannot issue binding legislation but only conduct research, publish recommendations and guidelines, disseminate best practices, and so on. Thus, the responsibility for health matters has been given to the small and somewhat insignificant member state Malta.

The former Health Commissioner, John Dalli, was recently forced to step down following accusations of corruption and now his replacement has been announced, Malta’s current foreign minister, Tonio Borg. True to his government’s official stance, Borg is a long-standing opponent to reproductive and sexual health and rights. He voted against the legalization of divorce in Malta in 2011. He is staunchly opposed to rights of same-sex couples. And, proudly involved with an outspoken anti-abortion group, he has advocated for introducing the ban on abortion into the country’s constitution so that it cannot be repealed by parliament or annulled in a court. This man has been nominated to be the primary spokesperson of the EU on issues related to health. The vote on his nomination will take place on Wednesday, November 21.

Before adopting the EU Treaty in 1992, Ireland received a guarantee that the Union would not touch its abortion legislation. During its accession negotiations in the early 2000s, Malta obtained the same assurances. And more generally, due to its narrow mandate on health, the EU cannot legislate on issues related to abortion or other reproductive health matters. In the hearing before the European Parliament last week, Tonio Borg eloquently assured concerned parliamentarians that he will abide by EU policies and that his personal views on abortion will not cause any problems as these issues fall outside of the EU’s mandate.

However, contacts in Brussels have testified that when former Maltese Commissioner Dalli assumed his position, most Commission initiatives—whether research, exchange of best practices, or recommendations—even remotely linked to sexuality or reproduction were stopped. And yet Dalli’s official profile was nowhere near as anti-women and anti-choice as Borg’s. The point is not whether the EU can legislate on abortion or not. The more important point is that the Union, and all its representatives, should stand for and defend the fundamental human rights that are enshrined in the EU Charter on Fundamental Rights and in other international treaties. Borg’s position appears to be that as long as he ignores the relationship between these values, which he as an official of the Union is supposed to embody, and women’s access to fundamental reproductive health care, including abortion, then he can do his job just fine. He seems to think, similar to the Irish government, that as long as he is silent about women’s need to terminate their pregnancies, and the rights violations that occur when abortions are denied to them, then maybe these ugly issues will simply disappear.

The Irish government has tried silence and denial for twenty years. Clearly, it doesn’t work.

Follow the Center for Reproductive Rights on Twitter, @ReproRights

Analysis Abortion

Ireland’s Protection of Life During Pregnancy Bill: 21 Years After X, Business as Usual?

Lisa Hallgarten

In the wake of the tragic and preventable death of Savita Halappanavar, Irish politicians promised that this government would "not become the seventh to 'neglect and ignore' the issue of the Supreme Court ruling abortion on the X Case." Six months later, the cabinet has proposed a bill it says will not "change the law" on abortion.

In the wake of the tragic and preventable death of Savita Halappanavar, Irish politicians promised that the government would “not become the seventh to ‘neglect and ignore’ the issue of the Supreme Court ruling abortion on the X Case.”

Six months later, the cabinet has proposed a bill it says will not “change the law” on abortion. That is certainly clear. The bill does not change anything for the women who make the heartbreaking trip across the Irish Sea to Liverpool to end much wanted pregnancies following a diagnosis of catastrophic fetal anomaly. The bill does not address the thousands that fly into London, Liverpool, and Manchester to access abortion when they simply cannot contemplate having a baby (or another baby) at this time. The bill does not offer any comfort to those who are pregnant due to rape or abuse. The bill will not change the law. The question is will the bill provide the clarity that women and doctors so desperately need to prevent another tragic and unnecessary death?

Did anyone notice how seamlessly the name of this bill was changed from the “protection of maternal life” to the “protection of life during pregnancy”? Significant? The bill states more than once that its intention is not to ask doctors to weigh the life of the fetus against the life of the woman. However, when it demands that a doctor provides a reasonable opinion, its definition of “reasonable opinion” is “an opinion formed in good faith which has regard to the need to preserve unborn human life as far as practicable.” So fetal life remains a consideration.

Similarly the bill quotes the 1992 Supreme Court judgment on the X case, that “it is not necessary for medical practitioners to be of the opinion that the risk to the woman’s life is inevitable or immediate, as this approach insufficiently vindicates the pregnant woman’s right to life.” At the same time it emphasizes that there must be a “real and substantial risk to the woman’s life.” This is typical of the confusing, equivocal, and obfuscating tone of the whole bill. We want to save women’s lives, but…

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The regulations state two grounds for allowing an abortion: the serious risk of death for the woman from “physical illness” and the risk of death from “self-destruction” (suicide). In the meantime the bill offers no clarity about where on the trajectory between diagnosis of a pregnancy complication or expression of suicidal ideation, and death a doctor can legitimately provide abortion? This is exactly the conundrum that faced the doctors in the Halappanavar case.

When clinicians in the United Kingdom (excluding Northern Ireland) tell you that they would rather err on the side of caution, it means proceeding with abortion before a woman is at death’s door. In legally restricted jurisdictions such as Ireland, the side of caution means ensuring you and your patient are not risking 14 years in prison by acting too soon. It is not clear that the process set out in the bill will solve this problem because it is notoriously difficult to assess or even get agreement from colleagues about the level of risk a woman faces until often it’s too late.

As Obstetrician/Gynecologist Christian Fiala explains, “All laws which allow abortion only to ‘save the life of the woman’ are inherently unworkable. For a simple reason: you only know after the woman died that her life really was in danger. It is impossible to exactly predict when a patient will die. And as long as she is still alive there is always someone in the medical team who will raise his voice and ask to wait for another day and another day … until it is too late. The same applies to the current initiatives to verify whether or not a woman is really suicidal. This is impossible to reliably predict beforehand. If you really want to know, you have to see and wait … until it is too late.”

Given that the bill calls for two doctors to make the decision in the case of “physical illness” (except in an emergency situation) and three in the case of “self-destruction” there is generous scope for disagreement and procrastination.

So what does the bill improve? For those doctors who felt too vulnerable to act, even to save a woman’s life, regulation may be welcome. It provides a clear process for them, if an uncertain outcome for the woman. The process may rule out the possibility of abortion, but the doctor will have done the “right thing” by trying. The process is convoluted and possibly unworkable, especially in the case of suicidal ideation, but for the first time at least it’s in writing—it’s official.

It may appease Ireland’s friends and neighbors who looked on appalled as the Halappanavar case played out; and, in a dim light, it appears to meet the demand for legislation on this issue. As RHM Editor Marge Berer says, “It is a gift to the politicians who must have felt (no matter what their personal views) that their political lives were not worth having this fight. They can now say, ‘We did exactly what we were told to do by the European Court’ and no more. It will be impossible to oppose it—in those terms—from any point of view. The person/people who drafted it deserve a gold star for compliance with the political necessity involved.”

However, for those doctors who previously relied on their clinical judgment and did provide life-saving abortions, they may now find themselves tied up in red tape and delays, jumping through hoops that weren’t there yesterday. The powerful need to deny the very notion of life-saving abortion has meant that, to date, abortion has sometimes taken place, but quietly without fuss or comment, without anyone even naming it let alone publishing statistics on prevalence. According to one commentator, “The bizarre official position is: abortions happen in Ireland, but we don’t count them.” The nation, it seems, turned a blind eye. Now there are no blind eyes. All eyes are on the doctors.

Moreover, the details of the bill give a very clear message. The need for a specific combination of different clinicians who must practice in specific institutions, who will need to be certified and registered as suitable by professional associations to follow professional guidance that is yet to be written, and who will all need to be available in the right place at the right time, and if they can’t agree it will have to go to appeal, which could take up to seven days, and it is not entirely clear whether that appeal process might also be open to those hoping to block the abortion, and all this must happen in what may be a short window of opportunity to save a woman’s life—the message is that it may be easier to travel, or to die. So, business as usual then.

News Abortion

Inquest Confirms Savita Halappanavar’s Life Was Subordinated to Non-Viable Fetus

Jodi Jacobson

This is the inevitable outcome of abortion bans. Women die.

Last year, Rewire reported on the tragic and wholly preventable death of Savita Halappanavar at Galway University Hospital. Halappanavar, a dentist who was pregnant with her first child, was admitted to the hospital with severe back pain. She was in the midst of miscarrying a non-viable fetus in a much-wanted pregnancy.

Over the course of three days, Halappanavar experienced an incomplete miscarriage that resulted in a life-threatening infection and unbearable pain. Halappanavar and her husband begged doctors to terminate the pregnancy. The doctors refused because, as she was told by the hospital’s midwife manager, Anna Maria Burke, “Ireland is a Catholic country.”

And in that Catholic country, where a woman’s life is secondary to a non-viable fetus, the woman died.

Now, a report by the Health Service Executive has concluded, according to the Irish Times, that there was “an overemphasis by hospital staff on the welfare of Ms Halappanavar’s unviable foetus and an underemphasis on her deteriorating health.”

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As reported by the Times, the report says, “The investigating team considers there was an apparent overemphasis on the need not to intervene until the foetal heart stopped, together with an underemphasis on the need to focus an appropriate attention on monitoring for and managing the risk of infection and sepsis in the mother.”

The final draft of the report did not mention the widely quoted comment by Burke about Ireland being a “Catholic country” where doctors would not end a miscarriage, but Burke admitted to saying this during testimony.

Reading reports of testimony provided during the inquest left me feeling the panicked helplessness I can only imagine that Praveen Halappanavar felt as his wife lay dying from a preventable and treatable condition that was treated as subordinate to a pregnancy that could not succeed. Reading the details of their ordeal is difficult even for a complete outsider.

According to both the timeline of Halappanavar’s “care” and reports by clinicians who evaluated the records, it is clear that infection had already set in when Savita was admitted to the hospital, but tests revealing elevated white blood counts were “not immediately relayed” to her doctors.

According to experts interviewed by the Times, the key issues arising from the report revealed that “on admission to the Galway University Hospital on Sunday, October 21st, Ms Halappanavar’s white blood-cell count was elevated, which indicated her body was fighting an infection.”

It finds her vital signs were inadequately monitored; that she was seriously ill by the evening of Tuesday 23rd, but that this was not acted on; that her team saw her on the morning of Wednesday 24th and she had further deteriorated, and still this was not acted on adequately; that further blood samples were not taken until later that day and that the High Dependency Unit did not get involved until the Wednesday evening, after the foetal heartbeat had stopped.

In a subsequent article, the Times reports that Dr. Susan Knowles, a consultant microbiologist at the National Maternity Hospital who testified at the inquest, “was also critical of poor documentation at a critical time in Ms Halappanavar’s care on Wednesday, October 24th last.”

Moreover, the report notes that “the possibility of performing an abortion was discussed by the medical team on the Wednesday. Mr Halappanavar was unaware this had been discussed. The couple’s request for a termination on the Tuesday is acknowledged in the report, but not in Ms Halappanavar’s medical notes.”

So doctors and nurses knew they had a non-viable fetus, they knew they had a woman at high risk of death, and they must have known that time was of the essence.

And yet they did not act.

This is the inevitable outcome of abortion bans. Women die.