Savita Halappanavar: A Woman Dies During Miscarriage in Ireland

Social stigma and fear of criminal sanctions continue to restrict lawful abortions, and women pay the price. It is time to stand up to pressures from the Irish Government and demand better protection for women.

On October 28, 2012, Savita Halappanavar died during a miscarriage at a hospital in Galway after she had been denied an abortion.[1]  She was 17 weeks pregnant.[2]  The exact cause of her death was septicemia, an infection of bacteria in the blood that occurs with severe infections.[3]  Doctors refused to perform an abortion while the baby was still alive, and made Halappanavar wait four days until its heartbeat stopped.[4]  The spread of infection could have been stopped and Ms. Halappanavar could have survived had the fetus been removed earlier.[5]  The unfortunate circumstances of this terrible death have refocused international scrutiny on Ireland’s restrictive laws on abortion.

Ireland has a long history of criminalizing abortion.  In Article 40.3 the Constitution of Ireland protects “the life, person, good name and property rights of every citizen.”[6]  This article has been used by pro-life advocates to justify the stance that the Constitution mandates protection of unborn life and implicitly prohibits abortion.[7]  In 1983 the Eighth Amendment was passed by referendum.[8]   It added provision 40.3.3, which acknowledges the State’s recognition of the right to life of the unborn and “with due regard to the life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.”[9]

The Irish Constitution promises to protect life, which includes the life of the mother.  Restricting abortion to the point where it is essentially outlawed does a disservice to society as a whole.
Abortion is also prohibited under criminal law in the 1861 Offences Against the Person Act.  It makes the woman’s use of an instrument or poison to “procure her own miscarriage” a felony subject to life imprisonment.[10]  This provision is reinforced in both the 1961 Civil Liberty Act[11] and the 1979 Health (Family Planning) Act,[12] which also outlaw abortion.  In 1957 Mamie Cadden, a midwife who performed “backstreet abortions,” was sentenced to death when one of her patients died during the procedure.[13]  As a result, all of Ireland became aware of the criminalization of abortion.

In 1992 the Irish Supreme Court interpreted the Eighth Amendment and developed the test for lawful abortion in X Case.  A 14-year-old girl was raped and became pregnant, and her parents arranged for her to have an abortion in the United Kingdom.[14]  They requested that the fetus be tested in Ireland to see if they could identify the rapist with DNA.[15]  An injunction was granted ex parte that restricted X from leaving the jurisdiction to get an abortion.[16]  The Supreme Court held that a pregnancy could only be terminated when “there is a real and substantial risk to the life, as distinct from the health, of the mother, which can only be avoided by the termination of her pregnancy.”[17]  X and her family sufficiently established that the life of the mother was at risk – she was suicidal – and the Court allowed her to have the abortion.[18]  She suffered a miscarriage while awaiting the procedure.[19]

In 2010 in the A, B and C Case, three women sued Ireland in the European Court for Human Rights because they had to go abroad to get a medically necessary abortion, a procedure that was expensive, traumatic, and humiliating.[20] The court held that in the third case, where the petitioner had cancer and was denied an abortion, Article 8 of the Convention, pertaining to the right to respect for family and private life, was violated.[21]  Ireland never enacted any legislation to create a procedure for a legal abortion as set out under X Case, which made an abortion impossible to get in Ireland.[22]  The one petitioner was awarded 15,000 euros in damages.[23]

This is the history that puts Savita Halappanavar’s death in context.  People are not pleased.  As a result, 10,000 marchers have taken to the streets to hold a candlelight vigil for Halappanavar.[24]  Protestors have formed the largest crowds in Dublin and Galway, but there are protests throughout the country.  “Never Again” is emblazoned across signs clutched by marchers, and pictures of Savita Halappanavar are displayed throughout the crowd.[25]

It is unacceptable that women continue to pay the price for governmental inaction.  X Case occurred in 1992 – twenty years ago – which held that women were allowed to have an abortion when their life was in danger.  The A, B and C Case illustrates that in 2010 the Irish government still had not enacted legislation that gave doctors and medical professionals any sort of guidelines for performing an abortion.  As a result, doctors were scared of being sued or being held criminally liable, potentially for murder, for performing an abortion even when they believed the woman’s health required it.[26]  And it is women who suffer the consequences.

This time Savita Halappanavar suffered the ultimate price.   Whatever the justifications for restricting access to abortions – whether on religious, moral, or other grounds – they cannot outweigh the mother’s potential loss of life.  The Irish Constitution promises to protect life, which includes the life of the mother.  Restricting abortion to the point where it is essentially outlawed does a disservice to society as a whole.  In this case, a man went from expecting a wife and baby to becoming a widower.  Ireland lost not one life but two.  The United States should take note, as laws restricting access to abortion become more prevalent across the nation.  To lose another life to these restrictive laws would mean that Savita Halappanavar died in vain.  We need to stand up for women’s health and fight for access to abortion – especially where the health and life of the mother is at stake.

Our thoughts and prayers are with the Halappanavar family during this difficult time.

[1] Human Rights Watch, Ireland: Savita’s Death Should Spur Reform, Huffington Post (Nov. 15, 2012), http://www.huffingtonpost.com/human-rights-watch/ireland-sanitas-death-sho_b_2139512.html.

[2] Id.

[3] Septicemia, National Institutes of Health, http://www.nlm.nih.gov/medlineplus/ency/article/001355.htm (last visited Nov. 25, 2012).

[4]  Associated Press, 10,000 in Ireland protest death of dentist denied abortion, LA Times (Nov. 18, 2012), http://www.latimes.com/news/nationworld/world/la-fg-ireland-abortion-20121118,0,107065.story.

[5] Id.

[6] Ir. Const., 1937, art. 40.3.

[7] See McGee v. Attorney General, [1974] I.R. 284 (Ir.); G v. An Bord Uchatala, [1980] I.R. 32 (Ir.); and Finn v. Attorney General, [1983] I.R. 154 (Ir.).

[8] A, B and C v. Ireland, App. No. 25579/05 (2010), (http://www.echr.coe.int).

[9] Ir. Const., 1937, art. 40.3.3.

[10] Offenses Against the Person Act, 1861, 24 & 25 Vict., c. 100,§ 58 (U.K.)  available at http://www.legislation.gov.uk/ukpga/Vict/24-25/100.

[11] Civil Liability Act 1961 (Act No. 41/1961)(Ir.), available at http://www.irishstatutebook.ie/1961/en/act/pub/0041/index.html.

[12] Health (Family Planning) Act 1979 (Act No. 20/1979) available at http://www.irishstatutebook.ie/1979/en/act/pub/0020/index.html.

[13] Nicola Tallant, Backstreet abortionist was an ‘angel of hope’ for desperate women, Independent.ie, http://www.independent.ie/opinion/analysis/backstreet-abortionist-was-an-angel-of-hope-for-desperate-women-463430.html (Last visited Nov. 18, 2012).

[14] Att’y Gen. v. X, [1992] 1 I.R. 1 (Ir.).

[15] Id.

[16] Id.

[17] Id.

[18] Id.

[19] Linda Kelly, X Case and the letter of the law, IRISH EXAMINER (February 23, 2012), http://www.irishexaminer.com/features/x-case-and-the-letter-of-the-law-184761.html.

[20] A, B and C v. Ireland, supra.

[21] Id.

[22] Id.

[23] Id.

[24] Associated Press, supra note 4.

[25] Id.

[26] Id.