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.