Savita case exposes the cruelty of Irish law

It’s time to face down the Irish Constitution and its bizarre elevation of ‘fetal rights’ over women’s rights.

Barbara Hewson

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Topics Politics

In the fight for independence, Irish nationalists entered a Faustian pact with the Catholic Church, which assumed a central role in the life of the new state in 1922. This was a decisive break with eighteenth-century nationalism, which had embraced Protestant, Catholic and dissenter.

It had a profound impact on the development of modern Irish society: the leaven of Protestant rationality and freedom of conscience was largely eradicated, in favour of a slavish Catholic ethos. In the decades that followed, the Catholic hierarchy opposed just about everything: mixed athletics; tampons; a mother and child healthcare scheme.

One thing that this Catholic ethos gave rise to – the constitutional ‘right to life’ bestowed on the ‘unborn’ in Article 40.3.3 of the Irish Constitution in 1983 – is now a shibboleth that has inflicted needless harm. It’s time we faced it down and called for the elevation of Irish women’s right to choose over the ‘rights’ of the unborn.

Law is different

During the War of Independence, the nascent Irish state operated a parallel system of Dáil courts, boycotting the British courts. After independence, however, in a retreat from revolution, it abolished its Dáil courts. Wigs and gowns prevailed. As Professor Tom Garvin explains:

‘The Irish elites…looked up, somewhat shame-facedly, to a version of English constitutionalism and law-giving, even if they could not quite admit this and, sometimes, pretended to possess an alternative loyalty to an essentially uncomprehended Gaelic past…..Catholic integralism had to fight with “Anglo-American” traditions of liberalism and pluralism, and had no total victory. In fact, in the long run the Catholic integralists were to lose. One of the reasons for this was the closed and non-arguable set of theses that the Catholics enshrined in Irish law. Once these became questionable, they were ignored or openly defied.’ (1)

The way in which the rulers of Ireland both looked up to English law but also sought to jettison its liberalism can be seen in the issue of abortion. So abortion is illegal in Ireland under Section 58 of the Offences Against the Person Act, a British statute applicable in Ireland from the days when the United Kingdom of Great Britain and Ireland was in existence; but the eighth amendment to the Irish Constitution passed in 1983 was about preventing Section 58 from receiving a liberal interpretation in Ireland.

Section 58 does not criminalise abortion, as such. It provides:

‘Every Woman, being with Child, who, with Intent to procure her own Miscarriage, shall unlawfully administer to herself any Poison or other noxious Thing, or shall unlawfully use any Instrument or other Means whatsoever with the like Intent, and whosoever, with Intent to procure the Miscarriage of any Woman, whether she be or be not with Child, shall unlawfully administer to her or cause to be taken by her any Poison or other noxious Thing, or shall unlawfully use any Instrument or other Means whatsoever with the like Intent, shall be guilty of Felony…’ [Bold emphasis added.]

In R v Bourne in 1939, the English High Court directed a jury that where a doctor performs a termination of pregnancy to prevent a woman becoming a physical or mental wreck, his actions are lawful. The case concerned a 15-year-old victim of gang rape. Later, of course, through the 1967 Abortion Act, English law on abortion was relaxed further still. To prevent such a thing happening in Ireland, Article 40.3.3 of the Irish Constitution was a last gasp of Catholic integralism. It read:

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

Be careful what you wish for

The use made of Article 40.3.3, in practice, has only succeeded in discrediting it. Pro-lifers give it an absolutist interpretation, applying remorseless logic. This is insane. Judges sometimes kowtow to the hardliners, and sometimes face them down.

The cases springing from Article 40.3.3 include:

— The Society for the Protection of Unborn Children (SPUC) (1986), (1989): this pressure group was allowed to injunct family planning groups and a students’ union from providing women with information on accessing lawful abortion overseas;

X (1992): the Irish attorney general got the High Court to order a 14-year-old, made pregnant by rape, who had left Ireland for a lawful abortion in England, not to have it. Legally, the case was nonsense, as the Irish court had no power over persons abroad. Had X declined to return until after the abortion, the Irish authorities could have done nothing about it. X said she wanted to kill herself, so the Supreme Court (by 4:1) backed down, ruling that she had a constitutional right to an abortion in Ireland, in circumstances where there was a real and substantial risk to her life;

A & B v C (1997): the parents of a 13-year-old Traveller girl, again made pregnant by rape, opposed social services’ decision to take her to England for a lawful abortion. C was suicidal, so the High Court said she could travel for an abortion.

Ms D v HSE (2007): Ms D was a pregnant 17-year-old in care. Her unborn baby was diagnosed with anencephaly. Social services refused to let her travel for an abortion. They only backed down after the High Court put them under considerable pressure to accept that a termination was in Ms D’s best interests.

— Waterford (2013): a maternity hospital sought a court order to compel an overdue woman to undergo Caesarean section. She could not get to court, and eventually capitulated.

‘It’s not a lie if you believe it’

An interesting, but little-remarked-upon case is D v Ireland (2006), a complaint by a woman diagnosed with Trisomy 18 to the European Court of Human Rights in Strasbourg, because she could not access an abortion for fatal fetal anomaly in Ireland.

This put the Irish government in a dilemma. It wanted to get D’s case thrown out, arguing that she should have complained to the Irish courts first. But to make good this objection, it had to make a concession. It had to show that D had reasonable prospects of success at home, as otherwise what would be the point of her suing there?

So the state swallowed its Catholic pride, and tendered in evidence a liberal opinion from a constitutional law expert, Dr Gerard Hogan SC (now a High Court judge), suggesting that if push came to shove, a non-viable fetus was not covered by Article 40.3.3 anyway.

He went further, arguing that the X case ‘holds out at least the possibility of the further development of the law in this area where, for example, the continuation of the pregnancy seems pointless or is not medically advised or where to do so would be oppressive and at odds with humanitarian considerations’. The European Court ruled Ms D’s case inadmissible, for failure to exhaust these potential domestic remedies.

Ireland kept Dr Hogan’s opinion quiet. As far as one can make out, it did not explain its new position to healthcare authorities and professionals domestically. This attempt at having it both ways was misleading.

And it has had deplorable consequences, as the recent case of Savita Halappanavar illustrates. Mrs Halappanavar died in a hospital in Galway after being denied a termination. Yet there was no reason to deny this woman a termination or an assisted delivery, as Dr Hogan’s hushed-up words confirm – the forced continuation of her pregnancy was certainly ‘at odds with humanitarian considerations’.

Also, giving Mrs Halappanavar an assisted delivery would not have been an offence under Section 58, because no one had the requisite criminal intent to procure a miscarriage: Mrs Halappanavar had already been diagnosed with inevitable miscarriage at 17 weeks, with no prospect of fetal survival. Even the Victorian MPs who enacted Section 58 would have been scandalised at the spectacle of her being denied help, and dying of septic shock.

Any invocation of Article 40.3.3 would have been very questionable, too, in the case of Mrs Halappanavar. And yet, tragically, the Halappanavars were fobbed off when they requested a termination. This should not have happened. It is the ultimate reductio ad absurdum generated by an unrealistic approach to law.

Barbara Hewson is a barrister at Hardwicke in London.

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