Lest death do us part

The death of Savita Halappanavar in a hospital in Galway, Ireland was untimely and tragic. While septicaemia has been identified as the official cause of death, the entire set of circumstances that led to it can only be confirmed subsequent to a probe by the Irish authorities. Irrespective of the results that the probe throws up, the conclusion that Savita was failed by Ireland’s legal regime governing abortion is inescapable. A legal regime that requires medical practitioners to engage in constitutional interpretation in order to treat their patients, that is pervaded by religious dogma disrespectful to non-believers, and that proclaims to protect the family while demonstrating wanton disregard for the life of the mother, is a regime that is confused, intolerant and hypocritical and must be reformed.

Prohibited, but not quite

Article 40.3.3 was introduced through the Eighth Amendment to the Irish Constitution in 1983. It says:

“The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.”

The Eighth Amendment was brought in to expressly provide a right to life of the unborn, implicitly restricting abortion to only those limited circumstances when “the equal right to life of the mother” was at stake. Once such a constitutional right to life of the unborn was created, balancing such a right with the right to life of the mother was an onerous task. This question confronted the Irish Supreme Court in Attorney General v. X ([1992] 1 IR 1]. In construing whether a girl who was pregnant as a result of rape could travel to the United Kingdom to get an abortion — the failure to get which had made her suicidal (a fact that a psychologist had certified) — the Court held that Article 40.3.3 permitted abortion when “there is a real and substantial risk to the life, as distinct from the health, of the mother” which included a risk of suicide. Subsequent to this case, a reactionary constitutional amendment which prohibited suicide from being considered a factor causing risk to the life of the mother was rejected by referendum, whereas two other amendments allowing women to travel to other countries for abortions and having information of the availability of such services were passed.

But the larger question of what constitutes “substantial risk to the life of the mother” has till today remained unclear. What are the factors that cause such risk? Is such a risk to be determined against an objective checklist or will the subjective satisfaction of the attending doctor be sufficient? If death does not have to be immediate or imminent (in X the Court rejected such a test) then is there a time limit within which it is expected to occur, to prevent which abortion is permissible?

In the absence of appropriately clarificatory legislation by the Dáil, Ireland’s Parliament, medical practitioners are faced with such harrowing questions in each and every case when the right to life of the mother conflicts with that of the unborn. Caught between the Scylla of a charge of medical negligence if the failure to terminate leads to the death of the mother, and the Charybdis of an abortion that is retrospectively deemed unlawful by the court for violating the right to life of the unborn, it is unsurprising that they have made questionable decisions that have led to death, such as in Savita’s case, of both mother and child. While the results of the probe are necessary to determine whether indeed the decisions made by the doctors in this case amounted to medical negligence, it is certain that the nebulous legal regime that puts them in the position where they have to interpret the Constitution before deciding whether and when to save a life, itself requires an urgent rethink.

Moving away from dogma

While the Dáil’s failure to legislate and clarify the meaning of “substantial risk to the life of the mother” is unfortunate, concentrating on this alone would be missing the wood for the trees. The nub of the issue is the overriding influence of religious dogma in the formulation of the Eighth Amendment and its popular interpretation. Both the genesis of the Amendment, subsequent to a political campaign to prevent a judicial decision permitting abortion in certain circumstances in Ireland as happened in the United States with Roe v. Wade, (410 U.S. 113 [1973]) and the alleged statement of a hospital official in response to the Halappanavars’ request to abort the child, that Ireland is a Catholic country, demonstrate the pervasiveness of religious belief in the Constitution and its interpretation. For the Irish Constitution to foist the burden of a provision that is seemingly derived from religious dogma on a person who does not share the same belief, and many more like her, demonstrates a fundamental lack of respect for alternative religious beliefs. It also fundamentally defeats the purpose of a constitutional document as a counter-majoritarian check and balance on the predilections of the popular majority. When the Constitution itself fails to distinguish itself from ordinary parliamentary legislation in this regard, is based on religious belief that is discriminatory, not universally accepted and leaves no room for rational argument, it requires urgent reform. If this were not reason enough, the provision seems oddly anachronistic in a country, where according to a study commissioned in 2004 by the Crisis Pregnancy Agency, a governmental body, 90 per cent of women support some degree of choice in the question of abortion and a majority of women have found supporting family and friends when they have decided to abort.

Needless to say, Savita’s poignant response to being told that Ireland is a Catholic country thereby denying her request of aborting the child, that she is “neither Irish, nor Catholic” has stoked passions in India of a fellow citizen having been maltreated in an alien state. Beneath the rhetoric that accompanies such passions lies a real point: religious dogma passing for constitutional law governing non co-religionists is perceived to be disrespectful. This is not to suggest that laws deriving ostensibly from religion are either a phenomenon unique to Catholicism, or limited to abortion, but that any such law in any country irrespective of how well-founded in religion it may be, is anathema in vibrant democratic states based on equal respect for all.

A final problem of legal provisions derived from religious viewpoints is the problem of reconciliation with other similar legal provisions. In the Irish Constitution, by Article 41, the State recognises the “Family” as “a moral institution possessing inalienable and imprescriptible rights” which the State guarantees to protect. Central to the Family, by the Constitution’s own admission is the woman. How is the state’s guarantee of protection of the Family as a fundamental unit of society, a view unambiguously based on natural law, to be reconciled with recognising the right to life of an unborn whom the woman does not choose to have? This is a fundamental conflict that is internal to religion and resolved by an appropriate religious diktat. But by placing such provisions in the Constitution, such conflicts are left to judges to resolve, resulting in the usage of legal techniques of reconciliation, which are fundamentally unsuited for the purpose. It also means that they apply, quite counter-intuitively to situations such as Savita’s, a woman who was delighted at the prospect of starting a Family, rather than attempting to terminate a genuinely unwanted pregnancy.

Justice and reform

In death, Savita Halappanavar deserves justice. Specifically, the probe into her death by the Irish authorities must be fair and independent, and must make its findings publicly available. Based on the findings, legal action against the relevant doctors for medical negligence either for failing to detect a substantial risk to Savita’s life necessitating abortion, or for negligently allowing septicaemia to develop, may be considered. At the same time, a concerted movement to reform Irish abortion law, making the choice of the woman the default position in abortion decisions or at the very least considering the health of the mother as the most relevant factor in deciding whether to abort, must be launched. The Irish people have twice showed their determination in this regard in the past, refusing to rollback the hard won fruits of the decision of the Supreme Court in the X case. It is time for a third such movement, in Savita’s name, lest death do us and Savita part. The Irish people, and all of us, owe her at least this much.

(Arghya Sengupta is a stipendiary lecturer in administrative law at Pembroke College, University of Oxford.)

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Printable version | Sep 16, 2021 10:11:32 AM | https://www.thehindu.com/opinion/lead/lest-death-do-us-part/article4108879.ece

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