*By “free” I mean “you have to give Choice Ireland a fiver first.”
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Category Archives: Abortion
Savita, abortion and the right to health in international law
Commentary around the Savita Halappanavar inquest has, understandably, focused on the Irish constitutional law context but I haven’t seen much discussion about the breach of her rights under international law.
This is perhaps unsurprising, as abortion itself has a nebulous standing in international human rights law. As its opponents never tire of pointing out, it isn’t protected per se in most of the world’s major human rights treaties. The only real exception is in the 2003 Maputo Protocol to the African Charter on Human and People’s Rights – that continent’s counterpart to the European Convention – which sets out in Article 14(2):
States Parties shall take all appropriate measures to:
…
(c) protect the reproductive rights of women by authorising medical abortion in cases of sexual assault, rape, incest, and where the continued pregnancy endangers the mental and physical health of the mother or the life of the mother or the foetus.
None of the human rights treaties to which Ireland is party even mention the word “abortion”, though that doesn’t mean they can’t protect the right in limited circumstances. The obvious example of this is the European Court of Human Rights decision in ABC v Ireland, which held the State in breach of an applicant’s right to her private life for failing to provide a clear mechanism by which she could establish and exercise her right to a legal abortion. This is similar to the way that other treaty monitoring bodies have approached the issue, such as the UN Human Rights Committee in KL v Peru and the CEDAW committee in LC v Peru. In both cases, the decision wasn’t that there was a right to abortion per se in the relevant treaty (respectively, the International Covenant on Civil and Political Rights and the Convention on the Elimination of All Forms of Discrimination Against Women), but that the particular abortion sought would have been legal under state law and thus various treaty provisions were breached by denying the petitioner access to it.
But what I want to talk about here is a more general right – namely, the right to health, and how it was breached in Savita’s case. The right to health is protected in a number of treaties that Ireland is party to, most importantly under Article 12 of the International Covenant on Economic, Social and Cultural Rights. Then there’s CEDAW, mentioned above, which has its own Article 12 protections for women’s health, while in the European Social Charter, “The right to protection of health” is set out in Article 11. It’s important to realise that these treaties are all fully binding on Ireland as a matter of international law. There’s often confusion on this point, because Ireland has a “dualist” system which means a treaty isn’t domestically enforceable unless it’s incorporated into national law by the Oireachtas (as with the European Convention on Human Rights Act 2003). You can’t go down to the High Court to sue the State for breaching your ICESCR rights – in fact, at the moment you can’t go anywhere. But it’s still legally obliged to protect them, even though there’s not much you can do if it doesn’t.
In and of itself, the fact that Savita died wholly avoidably in a public hospital proves the State’s failure to protect her right to health. If her death really had been due only to the “system failures” we keep hearing about, then perhaps we could chalk it down to a one-off, individual failure. But the more we hear from the inquest, the more apparent the truth becomes: the breach is in the law itself, not merely the way it was implemented or (mis)understood by her medical team. In fact, even if she had survived – and I know of a few women in similar circumstances who, thankfully, did – her right to health would still have been violated. Ireland’s ban on abortions in all but life-threatening cases will inevitably violate the right to health in those cases that fall short of the “real and substantial risk” threshold set by the Supreme Court. Here’s why.
The most widely-accepted definition of the right to health – the Article 12 ICESCR definition – is the “right to the highest attainable standard of physical and mental health”. The General Comment on this right by the treaty’s monitoring body, the Committee on Economic, Social and Cultural Rights, goes quite a bit further in defining that to include “the right to control one’s health and body, including sexual and reproductive freedom”. This is a fairly unambiguous, though legally non-binding, interpretation. But we don’t even have to go there, because on the plain terms of Article 12, you cannot enjoy the highest attainable standard of health if you’re denied an abortion that you need for the sake of your health. Simple as – and there’s no getting around it by hypothesising whether Physical or Mental Condition X would entitle someone to an abortion under this rule. Yes, there may be cases where it’s uncertain if abortion really is indicated for health reasons, but that’s completely beside the point: Irish law doesn’t allow for any of them if you aren’t considered likely to die otherwise. An absolute prohibition on “therapeutic” abortions for non-life threatening cases is not made compatible with the right to health just because it’s not always easy to determine who needs a therapeutic abortion.
“But rights aren’t absolute”, I hear you say. Well no, they aren’t, but when they’re guaranteed in a legally-binding treaty they can only be limited under the terms set out in that treaty. The ICESCR limitations clause, Article 4, states that the rights can be subjected
only to such limitations as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society.
Now, admittedly, this is a bit woolly, and a casual reading might well lend itself to a utilitarian interpretation, or suggest that a society which considers abortion a generally bad thing could legitimately consider an abortion ban to promote society’s general welfare. It’s not an absurd argument, on its face.
But it’s also not supported by the aids we have to interpret the meaning of the text. The Convention’s travaux préparatoires – the official records of the negotiation process (not online, but detailed in this book) – don’t exactly explain what the drafters of Article 4 had in mind. They do, however, show the rejection of various proposals to include grounds of public order, public morality and the interests of the community – all things which might suggest a person’s rights could be trumped in the interests of some aspirational “greater good”. The CESCR, for its part, states that Article 4
is primarily intended to protect the rights of individuals rather than to permit the imposition of limitations by States
which would mean that the State has a heavy burden of proof in justifying any such limitations.
In Irish law, of course, this is met by Article 40.3.3’s protection of “the right to life of the unborn”. But that won’t cut it in international law, because there is no right to life of the unborn in international law. (As with the “right to abortion”, there is one exception, but it’s in a treaty that Ireland isn’t party to – the American Convention on Human Rights). And again, in terms of the treaties we’ve ratified that protect the right to life – the International Covenant on Civil and Political Rights, the Convention on the Rights of the Child, the European Convention on Human Rights – there is either travaux or case law leaving the foetus out of this protection. (This nifty fact sheet from the Center for Reproductive Rights has lots more detail about this.) So the balancing exercise that would be required to make the denial of therapeutic abortion compatible with the ICESCR is, in international legal terms, simply a nonsense. There is no legal “individual” to balance the woman’s rights against.
There’s another way in which I think Savita’s right to health was infringed, and that’s in the discriminatory way her health needs were dealt with. Article 2 ICESCR requires that the Covenant’s rights be protected “without discrimination of any kind”. Patently, there was discrimination in her case: she was treated differently because she was pregnant. A non-pregnant person would not have had a medically-indicated course of action refused to them at a time of comparable need. There may also be an issue around the antibiotic she was given, which wasn’t strong enough but was “recommended for use in maternal cases”. I’ve found the newspaper reports on this a bit unclear, and I’m not sure whether she was purposely given a weaker antibiotic because she was pregnant, or whether the staff simply didn’t realise, when they gave her the one they always give the pregnant women, that her infection needed a stronger dose. If it’s the former, then she clearly received discriminatory treatment – especially given that it was already known her foetus wouldn’t survive and anyway, she’d already asked for an abortion. The use of less effective medication in the interests of foetal health may certainly be justified, with the woman’s consent, in a wanted and viable pregnancy. But this wasn’t one of those cases.
I said earlier that there’s no place we can go to complain about a breach of the Covenant on Economic, Social and Cultural Rights. Well, that could change in the near future. The Covenant’s Optional Protocol, which allows individuals to bring complaints to the treaty’s monitoring body, will come into force on the 5th of May. Ireland has yet to ratify the Protocol, but it did finally sign it last year and ratification is the next step. Again, since this is international law, the CESCR won’t have enforcement powers – but there’s plenty of potential to shine the world’s spotlight on Ireland, and how it fails to adhere to its international obligations. Abortion rights campaigners should call for the government to ratify the Protocol now.
The Logistics of Arranging Abortions
The thing about being a pro-choice activist is that perhaps unsurprisingly, people want to talk to me about abortion. A lot. People will tell me their own abortion stories or ones they’ve heard. I’ve had people who are just barely friends of friends tell me stories of how they’ve travelled on their own with barely enough money to have an abortion in an English clinic.
Sometimes I will be the only person that they will ever tell in their whole lives that they had an abortion.
They place their trust in me because they think I am the only person they can tell without being judged for their decision, and even then they’re never quite sure, but maybe it just felt good to tell someone. I feel sad that they couldn’t tell their Mam or their sister or husband, and sad they had to go through that. And I never tell anyone.
Sometimes though, someone will come to me in crisis and ask for advice on how to arrange their abortion because they don’t know how to navigate such things. How would they? It’s not something that people have an emergency plan for. An escape route as such. They don’t teach you that in school. There’s no organisation out there that you can ring and say, “Hey. I’m in Ireland. I’m in a crisis pregnancy situation, please make the requisite arrangements for me, you can start with getting me the days off work and booking my flights.”
“Crisis” never seems an adequate word to describe these situations that women find themselves in. Sometimes it’s utter terror and sheer undiluted panic.
There’s always a lot of talk about abortion as an abstract concept unconnected to real women but merely represented by letters of the alphabet, X, C, D, A, B, C. But fifteen women leave Ireland every day to have abortions in England. These women are your mothers, your aunts, your sisters, your daughters, your friends, your girlfriends and your wives. They have names, and feelings and the awful experience of having had to work out the logistics of travelling overseas to have an expensive medical procedure they should be able to get in their own local clinic for free.
If you are asked for advice, whether you’re an activist or their friend, you might have to ask them some questions. They are the questions that people don’t think of. They are the things that are irrelevant to those who make the decisions around the provision of women’s medical treatments in Ireland. They are the logistics of arranging abortions.
Do you have the internet? If you have, do you know how to delete your browser history so that your violent partner doesn’t know what you’re up to? Can you go to an internet café where nobody knows you? Bring tissues just in case. Do you know the number of the local women’s refuge?
Have you been to the doctor? How far along are you? Do you know the further along you are, the more expensive an abortion is? Can you get a loan from a Credit Union? Or will you go to a money lender? Do you have anything you can sell to raise the money? Can you lie to your parents or friends to borrow money? Can you max your credit card? Do you even have a credit card? Are there any bills that you can get away with not paying this month? Have you gone through all your old coats and looked down the back of the sofa? How long will it take for you to get €1,000 together? Can you get an extra €20 off the Community Welfare Officer? Can you not buy coal for the next few weeks? Are you on the dole? Can you use your savings? Can you defer your year at college and save the money for your Master’s Degree again? Is it Christmastime? Can you return any gifts for a refund or sell them for cash?
Women with money have options, women with nothing have babies.
Do you have travel documents? A passport is €80 and Ryanair will only let you travel with a passport. Can you get a Driver’s Licence? You’ve lost it? Aer Lingus will let you travel on a work ID. Your work ID doesn’t have a photo on it? You’ll need a passport then.
Are you an Asylum Seeker? Ok, then you need to get travel documents that will allow you to re-enter the state. Who is your solicitor? Is he or she pro choice? How much does he or she charge to help you with this?
How are you fixed for time? Can you only travel on a Sunday because that’s the only day you can “disappear” for where people won’t ask questions? Ok, but you know that it will be tough to get an appointment because there are less than a handful of clinics that will open on a Sunday? Most are closed Sundays. Many are closed on Saturdays. But you better have a fall-back plan because some of the clinics that open on certain days can’t do certain procedures. Do you have a fall back plan? Can you go home to Ireland and come back on Friday? Are you in the middle of your Leaving Cert.? Do you have to wait until after your exams to travel? Will that be more or less stressful?
How do you know that the clinic you’re looking at is actually a clinic and not a rogue crisis pregnancy agency?
Have you been able to figure out how to transfer money from Euros to Pounds without someone noticing on the bank statement?
Have you managed to get the day off work? Will you be calling in sick? Do you need two days off? Do you have any annual leave days left?
Do you live near the airport? Can you take a taxi to the airport? Don’t forget, the taxi driver will make idle chit-chat and ask you where you’re going once he hears ‘airport’. Don’t panic, he doesn’t know it’s for an abortion. Tell him you’re visiting an Aunt.
Or are you from down the country? Can you take a night bus and sleep in the airport to get the 7 am flight? Have you remembered your passport?
Did you manage to get someone to mind your kids? Or are you going on your own because your partner is watching them? Do you still have a partner? Is he supportive of your decision or, when you showed him the results of the pregnancy test did he walk out the door?
Or do you live in Shannon or Knock where there is only one flight out per day and due to the time of that flight, you have to stay overnight two days? Can you tell your partner you’re going to a hen weekend or something? Or a work conference? Or will you tell the truth?
How is your health in general? Have you told your GP? It’s not ectopic? Is your BMI ok? Because if it’s really high, the clinic could send you home from England without having an abortion because that procedure is only done in some places. Can you come back again next Friday? I know that means more flights, more days off work, and now you’re over 14 weeks which makes it more expensive but this is what we’re dealing with.
Do you definitely know how far along you are? Sometimes a woman can end up at a clinic and realise that she’s a little further along than she thought because she couldn’t get the money together and only a few clinics go past 18 weeks. As different doctors have different specialities, some doctors only provide treatment to 12 weeks.
Is this a pregnancy you wanted but you’ve been told that the foetus won’t survive to birth? Do you have a health condition that means you have to have an abortion? Is it something to do with blood clots because pregnancy increases the risk of blood clots so maybe you should get the ferry instead of the plane, and I know it’s a five hour train journey when you get there but there isn’t any other option I’m afraid.
Do you know how to get from the airport to the abortion clinic? Some clinics have a free taxi service but most don’t. Some provide pick up service but after the appointment you’re on your own. Have you checked the bus times?
I know you’ll be gasping for a cup of tea after sleeping in the airport but remember you can only have water just in case an anaesthetic is needed and you can’t eat. Or smoke, but what’s there to be nervous about, right? It’ll all be over soon.
Don’t worry, you’ll be ok, you shouldn’t have had to go through this but there are people working to change this awful, awful situation. I promise you.
Costa Rica – Call to action to help Aurora
There have been many Savitas in Latin America, where some of the world’s most restrictive abortion laws are found. It is rare that their individual names or circumstances are heard. Costa Rican campaigners are spreading the word about Aurora in the hope that international pressure can force their government to relent and recognise her right to terminate her pregnancy. Please, please help them accomplish this.
via http://www.colectiva-cr.com/node/180
Aurora is a 32-year old Costa Rican woman. She has a university degree, a job that she likes, a good relationship, and after months of trying, she is finally pregnant. However, at 8 weeks of pregnancy, the doctors informed her that the fetus has multiple severe malformations that would not allow it to survive outside the uterus, including severe scoliosis, decreased level of amniotic fluid, and a complete absence of abdominal wall which leaves the internal organs such as the liver and intestines outside of the body. She has had many more exams since, which have all confirmed the original diagnosis of a nonviable pregnancy.
A little after her first appointment, Aurora started experiencing strong abdominal and back pain that prevent her from working. The circumstances of the pregnancy are seriously affecting her physical and emotional health. Aurora has indicated that “in addition to the physical pain…
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Pics from the Pro-choice Demo last night at Leinster House
Related articles
- Irish Pro-Choice Protesters Cry, “Never Again!” (urbantimes.co)
- Never Again: Protesters to march and hold vigil outside Dáil in memory of Savita Halappanaver (thedailyshift.com)
- Dublin: Marching for Savita (proudtobeyou.wordpress.com)
- Thousands attend pro-choice rally in Dublin (slendermeans.wordpress.com)
- Begging for Our Lives: Savita and Ireland (persephonemagazine.com)
- Never Again: A response to the death of Savita Halappanavar (stillnotshakespeare.wordpress.com)
Abortion, X and the Eighth Amendment: why legislation isn’t enough.
Abortion, X and the Eighth Amendment: why legislation isn’t enough.
It looks like Ireland is finally going to get legislation on abortion. Following the massive outcry over the fate of Savita Halappanavar, with the publication of the expert group report this week, there’ll be a debate in the Dail tonight on what- not if- to do about legislating for abortion to save pregnant people’s lives. With any luck, we’ll finally get that 20-years-overdue legislation on the X case, guidelines for doctors that spell out their responsibilities when faced with pregnant people whose lives are at risk, and Savita’s death, while unnecessary, will not have been utterly in vain.
But it won’t be enough. Why?
Continues at Consider the Tea Cosy
My country kills women.
spent the last week of October visiting my family. Catching up with my cousin after her honeymoon. Calling over to friends from back home. Dinners with family and friends, full of that wonderful bustling laughter and warmth of sharing with the people you love.
While I was passing the potatoes and poking around the kitchen for a bottle of wine, a few hours drive away Savita Praveen Halappanavar was dying.
Savita did not need to die.
1992 – 2012 Legislating for X and Savita?
Savita Halappanavar was a 31 year old Indian dentist based in Galway, Ireland. She was married to Praveen Halappanavar who was a 34 year old engineer. Savita was pregnant. On the Sunday 21st October 2012, she presented to University Hospital Galway with back pains while in her 17th week of pregnancy.
Sadly, hospital staff told her she was miscarrying her pregnancy but there was still a foetal heartbeat present.
The doctors in the hospital told Savita and Praveen that her cervix was fully dilated and that amniotic fluid was leaking. They also told Savita that the foetus would not survive – but it would be over in a few hours.
For the following three days, Savita was upset and in “agony” but according to Praveen she had accepted that she was having a miscarriage and the doctors continued to check the foetal heartbeat. She asked the doctors on several occasions to terminate her pregnancy. They had said there was no prospect of the foetus surviving.
On Monday 22nd October, the consultant did ward rounds. Savita asked the consultant if there was no prospect of saving her pregnancy, could doctors induce to end the pregnancy instead. The consultant responded “As long as there is a foetal heatbeat, we can’t do anything.”
The same conversation took place with the consultant on the morning rounds of Tuesday 23rd October, and the consultant said that nothing could be done, as it was “against the law” and “this is a Catholic country.” Savita responded that she was a Hindu but the consultant said that there was nothing to be done. During that evening, Savita began to shake and shiver. The pregnant 31 year old began to vomit. She went to the toilet where she collapsed. Doctors took blood tests and gave her anti-biotics.
On Wednesday 24th October, Savita was still sick, and she and Praveen again pleaded with doctors to end her pregnancy and the response was unchanged from the previous days.
It is the law. It is a Catholic country. There will be no termination.
An open cervix has the same risk of infection as an open head wound.
Her cervix had been dilated since Sunday.
At around lunchtime, the foetal heart stopped and doctors brought Savita to theatre where they removed the womb contents. After the procedure she spoke to her husband Praveen, but she was very sick. This was the last time Praveen spoke to his young wife.
At 11pm that night Praveen received a call from the hospital to say she was being moved to an intensive care unit. Her heart was low. Her pulse was low too. Her temperature was high. The doctors said she was critical but stable.
By 7pm on Saturday her heart, kidneys, and liver were no longer functioning. She had contracted septicaemia and E.coli ESBL.
Savita Halappanavar, 31 year old Indian dentist, and wife of Praveen, died during the early hours of Sunday morning in this “Catholic country”. Praveen brought his wife home to be cremated in India. She was laid to rest on November 3rd.
Savita should have been celebrating Diwali this week with her husband.
Instead, the Health Service Executive have started an investigation in to her death and University College Hospital have extended their sympathy to her family and friends. External experts are being consulted and a ‘risk review’ is being carried out.
Under Irish law, the Supreme Court decision handed down in the 1992 X Case, Savita would have had a right to a legal termination of her pregnancy where there was a “real and substantial risk to her life.” There must not merely be a threat to a woman’s health. She must be at risk of death for an abortion to be performed legally in Ireland. But it is a Constitutional right in that case, according to the Supreme Court.
There is no legislation to give effect to this though.
Seven different governments have decided that women at risk of dying as a result of their pregnancies are not important enough to provide a law for. There are no legal rules to say to a doctor that yes, an open cervix for a number of days is a risk to a pregnant woman’s health, or that it may be such a risk to her health that it veers in to the category of being a risk to her life, and she is therefore constitutionally entitled to an abortion. Yes, the medical profession will know when a woman is at risk and when she isn’t, but there is no clarity as to whether there is legal cover for them to be able to act in a case such as Savita’s. They could be liable for severe penalties under the Offences Against the Person Act 1861 if they are found to not have the legal cover required.
Perhaps the doctors in this case genuinely felt that there was not such a high risk of infection and that this did not reach the very high standard of being a “real and substantial risk to her life”. However, the response the consultant gave Savita and Praveen while she was pleading in agony for a termination was that it was “against the law” in “this Catholic country” – rather than “you don’t actually need a termination.” Strange that.
The European Court of Human Rights said during the ABC v Ireland case that women should know under what circumstances they are entitled to a lawful termination in Ireland. It is a ruling based on the constitutional law of Ireland.
For many years, some prochoice activists have been of the clearly held view that, when it comes to the political establishment, someone would actually have to die before the Government would legislate for the Supreme Court decision in the X Case handed down twenty years ago. If the HSE inquiry finds that Savita died as a result of not receiving a termination, leaving her open to the massive risk of infection which eventually killed her, this Government, and the six Governments that have gone before them must realise her blood is on their hands. That is not to be melodramatic about things. A woman has died. If the HSE inquiry finds that Savita did not die from being prevented from having a termination and it was something else, her story will still send shivers down the spines of every woman in Ireland who has had a miscarriage who may well think “what if that had been me? What if the foetal heartbeat hadn’t stopped when it did?” – because under those circumstances there is still a real and substantial risk of death. The fact remains, there are some conditions that will arise in pregnancy that will make the pregnancy itself life-threatening.
At this stage, it is either wilful ignorance or complete and utter misogyny that prevents the Government in Ireland from legislating for the X case to allow women in life-threatening situations have abortions legally and safely. The ABC case judgment was delivered in 2010. The Government responded by convening an Expert Group to examine “options” rather than actually produce legislation. The time is now over for the Expert Group.
While the Expert Group are examining, there is no way of knowing whether there is a woman in a hospital somewhere in Ireland with a dilated cervix miscarrying and pleading for a termination to take place. We have no way of knowing whether there is a woman contracting the e.coli that will kill her at this very moment because doctors have refused to terminate her pregnancy.
It is time to legislate for X. Savita Halappanavar should not be dead.
This must never happen again.
Feminist Ire 