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To them, we are nothing but vessels

A young non-Irish woman with limited English and precarious residency status, discovered she was eight weeks pregnant as a result of what the Sunday Times have reported as a “traumatic rape.” Due to her legal status in Ireland she could not freely travel abroad in order to access an abortion so immediately applied to have a termination in Ireland under the new legislation, stating that she was suicidal at the prospect of carrying the foetus to term. Like Savita Halappanavar and Bimbo Onanuga, she is another woman from outside of Ireland who has been completely failed by the Irish medical system.

Three doctors declared that the woman was suicidal under the panel formed under the Protection of Life During Pregnancy Act in January. The legislation states that medical practitioners may authorise an abortion where “there is a real and substantial risk of loss of the pregnant woman’s life from a physical illness or by way of suicide” but they must have “regard to the need to preserve unborn human life as far as practicable.” The Act does not set out timelines during which decisions should be made by these panels, or when abortions should be performed if granted under this law. To insert a timeline in that law, giving the applicant some clarity, would have been too generous a gift for the women of Ireland by the Irish government. The panel of three doctors said that despite the fact she was suicidal, it would be better to wait until the foetus was viable for delivery instead of performing an abortion. She went on hunger and liquid strike in response. People do not enter in to hunger strike lightly; It is a last resort attempt by people seeking redress when the politics of despair have left them with nothing else to fight with but their own bodies.

The HSE in turn, sought an emergency order at the High Court on the 2nd of August which would allow it to forcibly hydrate the woman on the grounds that they wanted to protect her life and the life of the foetus which she did not wish to carry. It further sought orders that would allow them to carry out other procedures related to her pregnancy. The woman was represented by her lawyers, and the foetus was also represented by its own legal team. The Irish courts have already stated that it is a medical practitioner who is entitled to make decisions concerning the pregnancy, and not the woman herself. The law goes far beyond preventing a pregnant woman from having an abortion in circumstances where her life is not at risk. The Irish law is designed so that a person who is pregnant no longer has any say over what happens their body whether it concerns continuing the pregnancy itself, the location in which you wish to give birth or whether you will hydrate yourself or not.

Last month in Geneva, the chair of the UN Human Rights Committee said that Irish law on abortion treats women as a “vessel and nothing more.” Once you are pregnant in Ireland, you become property of the state and your own wishes are irrelevant.

On the 3rd of August, this young, suicidal rape victim, having gone through two court hearings seeking an abortion and an unknown number of medical interrogations by a panel of three doctors, underwent a caesarean section in an Irish hospital at approximately 24-26 weeks gestation. Preserving human life as far as practicable in their eyes required performing a c-section on a woman while she was around six months pregnant, despite the fact that she had been raped, was suicidal, had gone on hunger and thirst strike and had asked for an abortion repeatedly from eight weeks on.

The implications of this are horrifying. It has sent a clear message to women in Ireland that if you are suicidal and seek an abortion which you are constitutionally entitled to, you run the risk of medical practitioners compelling you to wait until the foetus is viable and then having a c-section forcibly performed on you. This woman was in a very vulnerable position given the multiple traumas she had endured. It is the stuff of nightmares. There are other women who are suicidal as a result of pregnancy and access abortion services because they have the means and support to travel. Some contact Women on Web and some contract the Abortion Support Network. Some will borrow money from friends. Those who don’t have internet or phone access to make appointments or ability to leave the country, or money to pay, and will take other steps. Some will borrow from money-lenders, others might throw themselves down stairs. But those who are pregnant and suicidal will not go to these panels, the risk is too great.

We do not know the full facts of this particular case because the media are restricted from reporting in full. However, we do know that the Protection of Life During Pregnancy Act has not resolved the issue of not being able to access an abortion even if you are suicidal in Ireland. Three doctors said this woman was suicidal, but apparently this was not the right kind of suicidal for the purposes of the Act, and because a c-section was available then she could have that instead of a lawful termination.

It begs the question of what type of ‘suicidal’ will allow you to have a legal abortion in this jurisdiction and as long as the Eighth Amendment remains in the Constitution, there will be women travelling, dying and undergoing forced c-sections for want of an abortion within Ireland. There is no clarity as to what the scope of “practicable” actions are in order to prevent a woman from having an abortion under the cloak of “protecting the life of the unborn.”

Years ago, I had a conversation on facebook with someone who was anti-choice and was quite forthright in his views that women should be prevented from having abortions at all costs, even if they were suicidal and it required locking them up in specially designed pregnancy gulags under 24 hour suicide watch. It is a frightening vista but not totally unrealistic. Those on the anti-choice side will of course say the term “gulag” is hysterical, but if you were a pregnant suicidal rape victim, who wanted an abortion, and was in hospital on a court-ordered drip having an effectively forced c-section under threat of a court order, faced with the prospect of a 14 year jail sentence if you induce your own miscarriage, it just might feel pretty gulag-esque. You just might even etch “Nolite te bastardes carborundorum” on a wall.

To them, we are nothing but vessels.

Repeal the 8th.

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Savita, abortion and the right to health in international law

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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.

Abortion, X and the Eighth Amendment: why legislation isn’t enough.

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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.

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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.