Analysis Abortion

Savita’s Case Reveals Narrowness of “Catholic” Law in an Increasingly Borderless World

Michelle Chen

The plight of the Halappanavars indirectly highlights the narrowness of a “Catholic” law in an increasingly borderless world. The question now is whether the global valence of a woman’s death can inspire a national reckoning.

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

When the young woman lay in agony in the hospital late last month, there should have been nothing standing between her and an emergency medical intervention. But instead, what stood between Savita Halappanavar, a 31 year-old, Indian-born dentist, and the Irish doctor treating her, was a dangerously wide grey area that has long hovered over Ireland’s constitution. As she suffered through complications stemming from a miscarriage, she begged for an abortion. It was denied, reportedly because the fetal heartbeat was still present. Her husband later recalled that Savita was told by a medical consultant that an abortion would be impossible because Ireland “is a Catholic Country.”

That exchange, seared in her aggrieved family’s mind, lay bare the medieval nature of one of the Western hemisphere’s harshest abortion bans. Savita, a Hindu born in India, argued that she was “neither Irish nor Catholic.” None of that mattered, because Ireland’s anti-abortion law, as it was interpreted by her medical provider, trumped questions of both bodily sovereignty and cultural difference.

Savita’s case was one of countless pregnancies across Ireland in which a woman’s fate may come down to a subjective medical assessment colored by “conscience.” To qualify under Ireland’s near-total abortion ban, Savita’s life was apparently deemed not sufficiently endangered—until the two heartbeats ended after days of crippling pain, leaving both the fetus and the mother dead, the latter of sep­ticaemia.

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Savita’s death has set off a wave of protests—not just among pro-choice activists in Ireland but also Ireland’s Indian immigrant community and in her home country. Two official investigations into the medical decisions leading up to Savita’s death are pending. Even the Indian government has gotten involved, with a meeting between the Indian ambassador to Ireland and the Irish foreign minister.

Yet Savita’s tragedy isn’t about her Indian identity per se; it points to the barriers facing all women in Ireland. The unwritten religious subtext of the policy—“cruelty disguised as piety,” in the words of one columnist—effectively places the bodies of both Catholic and non-Catholic women, citizens and migrants alike, under a sweeping, vague rule at odds with rights enshrined in international law.

The main legal guidance for the abortion ban is the case of X, involving a 14 year-old rape victim who was blocked from traveling to England for an abortion. The court set the medical threshold for abortion as “real and substantial risk to the life, as distinct from the health, of the mother.” The lack of concrete legislation on the standard has left the the one narrow avenue for legal abortion mostly in the hands of doctors. For a woman ineligible for a medically necessary abortion, virtually the only safe option is to travel to the United Kingdom or another country to terminate her pregnancy.

In light of the various legal challenges women have brought against the restrictions, the UN Human Rights Committee and the Council of Europe Human Rights Commissioner have criticized the government’s failure to comply with international human rights standards and clarify the ban through legislation. Savita’s death seems poised to intensify public pressure on Irish lawmakers.

Mairead Enright, a legal scholar at the University of Kent, said the political stagnation over the past twenty years shows that “certain kinds of public religious interests are being given a privilege which does not match the level of support or membership that they have in the actual population.”

How many women have, in the last 20 years, been denied not only basic reproductive choice, but even access to medically necessary abortion, because of a draconian legal rationale or the biased opinion of a doctor? Savita was an educated professional. Less-privileged women may have even fewer options when it comes to negotiating medical care, and virtually none if they can’t afford to travel abroad to circumvent the ban.

Savita’s case also reveals how immigrant status can underscore the policy’s social parochialism.

Commentator Gerald Howlin wrote in the Irish Examiner, “The cultural colonialism and condescension that characterised our attitudes to people of other races from the developing world has been witheringly turned back on us.”

But the cost is ultimately borne by anyone with womb. The socioeconomic divisions that strafe the prospects of a woman’s reproductive future are deepened by the restrictions established in the case of X.

According to the Irish Family Planning Association, the costs of terminating pregnancy overseas often total 1000 euros, the process of obtaining a visa adds additional burdens:

Women and girls who experience most difficulty are those who are already marginalised and disadvantaged, those with little or no income, women with care responsibilities, women with disabilities, women with mental illness, women experiencing violence, young women and women of uncertain residency status.

An immigrant woman seeking asylum may be further hindered by the hardships of wading through the asylum bureaucracy, forced to scrape by on meager state subsidies and without decent access to reproductive health care.

“Restricting this right for most people, restricting it for a right to travel–that has always raised issues of class and race and poverty,” said Enright.

The reproductive justice question resonates beyond Ireland; in the United States, immigrant women, women of color, and other marginalized groups see their reproductive health and choice constrained by both legal barriers and poverty, as well as linguistic and cultural divides. Undocumented women especially are either barred or sharply deterred from seeking family planning services.

Perhaps the one positive aspect to Savita’s tragedy is that it has further entwined Ireland’s reproductive rights movement with an international struggle for reproductive choice and health. The plight of the Halappanavars indirectly highlights the narrowness of a “Catholic” law in an increasingly borderless world. The question now is whether the global valence of a woman’s death can inspire a national reckoning. 

Roundups Law and Policy

Gavel Drop: Welcome to the New World After ‘Whole Woman’s Health’

Imani Gandy & Jessica Mason Pieklo

With the recent U.S. Supreme Court ruling, change may be afoot—even in some of the reddest red states. But anti-choice laws are still wreaking havoc around the world, like in Northern Ireland where women living under an abortion ban are turning to drones for medication abortion pills.

Welcome to Gavel Drop, our roundup of legal news, headlines, and head-shaking moments in the courts.

The New York Times published a map explaining how the U.S. Supreme Court’s ruling in Whole Woman’s Health v. Hellerstedt could affect abortion nationwide.

The Supreme Court vacated the corruption conviction of “Governor Ultrasound:” Former Virginia Gov. Bob McDonnell, who signed a 2012 bill requiring women get unnecessary transvaginal ultrasounds before abortion.

Ian Millhiser argues in ThinkProgress that Justice Sonia Sotomayor is the true heir to Thurgood Marshall’s legacy.

The legal fight over HB 2 cost Texas taxpayers $1 million. What a waste.

The Washington Post has an article from Amanda Hollis-Brusky and Rachel VanSickle-Ward detailing how Whole Woman’s Health may have altered abortion politics for good.

A federal court delayed implementation of a Florida law that would have slashed Planned Parenthood’s funding, but the law has already done a lot of damage in Palm Beach County.

After the Whole Woman’s Health Supreme Court ruling in favor of science and pregnant people, Planned Parenthood is gearing up to fight abortion restrictions in eight states. And we are here for it.

Drones aren’t just flying death machines: They’re actually helping women in Northern Ireland who need to get their hands on some medication abortion pills.

Abortion fever has gone international: In New Zealand, there are calls to re-examine decades-old abortion laws that don’t address 21st-century needs.

Had Justice Antonin Scalia been alive, explains Emma Green for the Atlantic, there would have been the necessary fourth vote for the Supreme Court to take a case about pharmacists who have religious objections to doing their job when it comes to providing emergency contraception.

News Law and Policy

Will Roberts Court Take Up Case Against Nation’s Most Radical Anti-Choice Law?

Jessica Mason Pieklo

Almost three years after the passage and implementation of HB 2 the Roberts Court could finally weigh in on its constitutionality.

A coalition of women’s health-care providers, on behalf of Texas abortion providers, are urging the U.S. Supreme Court to consider the legality of the nation’s most radical set of anti-choice policies.

“This case will determine whether Texas can force more than 75 percent of the State’s abortion clinics to close,” opens the brief filed with the Roberts Court late Tuesday night.

The brief asks the Roberts Court to review a June 2015 decision from the U.S. Court of Appeals for the Fifth Circuit, which upheld portions of HB 2 that advocates say would close more than 75 percent of abortion clinics in Texas and cut off access to safe and legal abortions for millions of Texans.

“The outcome of this case is a matter of exceptional importance because the rights, health, and dignity of thousands of women are at stake,” the filing states. Texas, the second most populous state in the nation, is home to 5.4 million women of reproductive age. More than 60,000 of those women choose to have an abortion each year.

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The filing asks the Robert Court to permanently block enforcement of two provisions of HB 2, the devastating anti-choice omnibus bill passed by Texas’ Republican-majority legislature in July 2013. The first provision requires that all abortion providers obtain local hospital admitting privileges, a mandate that has already forced the closure of more than half the clinics in the state.

The second provision requires every reproductive health-care facility offering abortion services to meet the same hospital-like building standards as an ambulatory surgical center (ASC), which can amount to millions of dollars in medically unnecessary facility upgrades.

Advocates argue in their filing that if the Roberts Court fails to step in, only ten clinics will remain open in the state, down from 41 prior to HB 2’s enactment and a net reduction of more than 75 percent of the abortion facilities in the state in a two-year period. Should this happen, advocates say, “every woman in Texas would have to live under a legal regime that fails to respect her equal citizenship status and would force her to grapple with unnecessary and substantial obstacles as a condition of exercising her protected liberty.”

“By passing HB2, lawmakers forced us to permanently close our clinics in Beaumont and Austin. While our Fort Worth and McAllen clinics are currently open, they have both had to close at various points over the last two years, leading to financial strain and overall confusion—some women even questioning if abortion is still legal in the state of Texas,” Amy Hagstrom Miller, president and CEO of Whole Woman’s Health, said in a statement.

The Supreme Court has twice stepped in to block enforcement of HB 2: once in October 2014 and then again in June 2015. The only reason the Fifth Circuit was able to conclude that the admitting privileges and ASC provisions of HB 2 did not unduly abortion rights was by determining that the undue burden standard does not require, let alone permit, courts to actually examine the extent to which an abortion restriction furthers a valid state interest. This, advocates argue in their filing, “renders the undue burden standard a toothless protection for the fundamental liberty recognized in Casey,” which has facilitated the “ability of women to participate equally in the economic and social life of the Nation for more than four decades.”

It also stands in direct conflict with decisions of the Seventh and Ninth Circuit courts and the Iowa Supreme Court, which have all held that courts are required to examine the extent to which abortion regulations further a valid state interest.

Should the Roberts Court let HB 2 take effect, one of the remaining ten clinics in the state, Whole Woman’s Health of McAllen, would be limited to employing only one physician to provide abortions, even though at least four physicians were providing abortions there prior to implementation of HB 2. That doctor is past retirement age and unable to work there full time, which means the McAllen clinic would be limited to treating patients who reside in the four counties of the Lower Rio Grande Valley.

The next closest abortion provider for patients would be in San Antonio, a drive of more than 200 miles.

Texas’ remaining abortion providers would be clustered in four metropolitan areas: Dallas-Fort Worth, Austin, San Antonio, and Houston. Texas would have no licensed abortion facilities west of San Antonio. This is a region that occupies more than a 100,000 square miles.

“It’s been a long and arduous road to get to today’s filing, but that’s nothing compared to the obstacles that Texas women seeking reproductive health services will face if the Supreme Court of the United States denies our request and allows HB2 to fully go into effect,” Hagstrom Miller said. “Our ability to get safe medical care should not depend on whether we have the resources necessary to navigate a horrific and complex obstacle course [dreamed] up by anti-choice lawmakers. This is the real world and these laws have real implications on real women’s lives.”