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|From: Irish Political Review: Editorials|
|Date: December, 2012|
|The death of Mrs. Savita Halappanavar as a result of medical shortcomings in connection with complications in a miscarriage is likely to bring about a much-needed reform of arrangements in such situations.
The only statute law governing abortion is the 19th century British-made Offences Against The Person Act. That is modified by the clause in the Irish Constitution that there is an equal right to life between an unborn and its mother, enacted by referendum. This provision came about as a result of a legal case, brought by an underage statutory rape victim. Her family was appealing an injunction brought by Attorney General Harold Whelehan to prevent the girl from leaving the country to obtain an abortion. Whelehan was over-ruled by the Supreme Court and the person concerned travelled to England for an abortion. Subsequently, referendums confirmed the Right to Information about Abortion to be made available in Ireland and the Right to Travel for Abortion.
The X-Case ruling was not overturned by referendum. It established that, where a conflict of interest existed between the two, the life of the mother was to take priority over that of the unborn. However, no legislation has been passed, to give effect to and elaborate this judge-made law. This has meant that individual doctors have been unsure of how to proceed in difficult cases. It has been left to the Medical Council to draw up regulations to govern medical practice. Irish Political Review has been given to understand that these are drawn up sufficiently loosely to allow medical practitioners considerable leeway. The effect of that has been that there is considerable variation in the approach to problem pregnancies around the country. In a small number of hospitals there has been a very restrictive approach to medical intervention indeed, as was the case at Galway University Hospital. Judging by press reports of the Halappanavar Case, the doctors in question denied the mother her rights to a legal termination under X-Case judge-made law. In the Dublin area, on the other hand, we understand that doctors routinely intervene to save the life of the mother where this is required. It is a pity that the variable medical practice in such situations has not come to light before this case, as such knowledge could have been of assistance to women with problem pregnancies. What the Halappanavar Case has made abundantly clear is that it can no longer be left to Medical Council guidelines and medical discretion to ensure a proper outcome in difficult pregnancies.
Politicians have shied away from giving statutory effect to judicial rulings in the X Case. Undoubtedly the fear has been that any liberalisation would bring about a liberal abortion regime, such as exists in Great Britain (but not in Northern Ireland). That fear is misplaced. Attitudes towards abortion are socially determined to a considerable extent. All around Europe restrictive abortion regimes are in place. Terminations are provided for on a limited basis. There is little controversy or attempt to widen the criteria under which they are permitted Where women feel the need to go beyond what is allowed for in their own jurisdiction, they travel to obtain a termination and it is often to London that they go. It might be said that Britain has become the abortion centre for Europe.
The only way that Ireland could bounce from a total ban to total liberalisation is if no proper provisions for therapeutic abortions are now set in place expeditiously.
Strictly speaking, a statute law should not be required to allow therapeutic abortions where there is a real and substantial risk to the life of the mother as legal authority for this already exists as a result of the X Case. In fact, if and when legislation is passed on the matter, it could still fall to the courts to flesh it out by interpretation.
As there is already legal authority for abortion in these circumstances, the only reason for introducing a statute law on the matter is that doctors are at present not fulfilling their obligations under the law, either because of pusillanimity or on misguided ethical grounds. It appears that, in such situations, the State may have to order medical interventions.
Praveen Halappanavar, the bereaved husband, has demanded a sworn, public enquiry into the death of his wife. There are two enquiries pending, both private and unsworn. These have been rejected by Mr. Halappanavar, who is seeking ownership of his wife's medical records in an effort to thwart them.
Michael Farrell has written that,
"Irrespective of the views, opinion or wishes of the Minister for Health, the HSE [Health Services Executive], its chief executive or members, very shortly there will be an inquiry into the circumstances surrounding the death of the late Savita Halappanavar which will be open to the public, sworn, independent, with leave to appeal and which will neither seek to blame nor seek to exonerate and which will be presided over by a member of one of the most caring and sympathetic groups in Irish society—it's called an inquest" (Letter, Irish Times 24.11.12).
These observations seem very much to the point. For whatever reason, the Government—and the media—appear to have neglected this most basic of democratic institutions—the Coroner's Court.
There may be a problem with any inquiry that is held: Mrs. Halappanavar's body has been cremated. An autopsy was carried out two days after she died and it must be assumed that there are relevant medical samples stored to enable forensic evidence to be presented.
The European Court of Human Rights recently ruled, in a case brought by a woman with a problem pregnancy, that the State was remiss in not providing procedures to establish a woman's entitlement in such situations. The Government set up an expert group, chaired by Justice Sean Ryan, after that ruling. The Sunday Independent reports that the findings of this group favour the establishment of "effective and accessible" procedures to enable women to have an abortion in Ireland where there is a "legitimate entitlement" (See State Is Told: 'Select Sites For Abortion', 25.11.12).
There can be little doubt that there is over-whelming public support for legislation providing for a generous approach to medical intervention where the life of the mother is at risk. Such legislation is in keeping with the judicial ruling in the X-Case and is long over-due.
Children's Rights: A Political Agenda?
It is a fact that Mrs. Halappanavar died on 28th October, seventeen days before the fact was publicised in a front-page lead story by the Irish Times on Wednesday, 14th November.
It is also a fact that voters went to the polls in the Children's Rights Referendum on Saturday, 10th November, two weeks after she died.
The effect of the Constitutional amendment was to enshrine "the natural and impresriptible rights of all children". It might be asked, what is wrong with that? But the Constitution already lays down that the Family is "the natural and fundamental unit group of Society", with "inalienable and imprescriptible rights".
Regrettably, one right can only be established at the expense of another. Up to the present, children formed part of the Family and were protected as part of it. However, under the old provisions, the Constitution laid down that State was permitted to intervene only when the Family was failing to vindicate the rights of its child-members Now Children are protected in their own right. This can only diminish the Family as the basic building block of social life. It will fall to the Supreme Court eventually to decide how much the Family is to be undermined by the new provision.
Every political party, the Irish Hierarchy, and the media supported these proposals.
The basic issues were not made clear to the electorate, which was very uncertain as how to vote. And the Supreme Court ruling, made public a couple of days before the voting, that the Government had acted improperly in using public money to put a one-sided case to the public about its proposed Constitutional amendments added to public uncertainty as how to vote. The ruling undoubtedly reduced support for the proposed change.
In these circumstances, did the Irish Times and others decide to hold back the Halappanavar story until after the referendum which they were so anxious to pass and which it was clear the public was uncertain about?
There are indications that this happened. It has been reported that pro-Choice groups were aware that a story about a maternal death was about to break several days before it did. The Sunday Independent reported that "Members of the Indian community got in touch with pro-choice groups following Savita's death" (Pro-Choice Activists Got Tip-Off On Tragic Death, 18.11.12). We do not know exactly when this was, but the paper went on to suggest that some groups knew of the case "at least" three days before the story broke. The same issue of the paper stated, "The Irish Times had been working on the story for several days before it finally hit the front page on Wednesday morning" (From Pure Joy To Absolute Tragedy…).
In the event there was a low turn-out for the vote, and a less than expected majority for the Constitutional amendment.
A legal challenge to the Referendum result has been brought to the Courts by Joanna Jordan and Nancy Kennelly, with the assistance of journalist and campaigner John Waters. One of the grounds for the challenge is that those who cast postal votes did so before the result became known of the Supreme Court decision, censuring the Government for putting out one-sided information about the issues involved.
The Supreme Court has continually enlarged its political prerogatives since the 1960s. Up to now, legal power has been increased at the expense of that of the elected Legislature and Executive. Will the Supreme Court now over-rule the Democracy too? Certainly the way that the Irish Establishment has acted has given it grounds to do so.