When I argued a case challenging Ireland's ban on abortion before the European Court of Human Rights in 2009, I told the story of my client, "Ms. C," who had been battling cancer when she became pregnant. Ms. C's doctors in Ireland, where abortion is illegal and lifesaving abortion is largely unavailable, refused to provide her with even basic information about the risk that continuation of pregnancy posed to her life, and so she had no option but to travel to England to obtain an abortion.
The human rights court found this to be a clear violation of my client's rights under the European Convention on Human Rights and in 2010 demanded that Ireland reform its abortion laws. The case was considered a major victory for women.
But the victory exists only on paper, as is clear from the tragic case of Savita Halappanavar. Last month Halappanavar, age 31, died from a pregnancy-related blood infection after doctors in Ireland refused to perform an abortion. According to her husband, as Halappanavar's health deteriorated, she had begged doctors for medically necessary treatment. Even after her doctors acknowledged that there was no chance her fetus would survive, they refused to terminate the pregnancy as long as they could detect even the faintest fetal heartbeat. Halappanavar slipped in to a coma from which she never recovered.
Well before Ms. C's case was heard in the European Court, Ireland's own Supreme Court had held that women and girls must be allowed access to lifesaving abortion. The infamous X case of 1992 involved a 14-year-old rape victim who became suicidal after the state had prohibited her from traveling to England for an abortion. Her case led to mass demonstrations of support for abortion reform in Ireland and the unequivocal Irish Supreme Court ruling that lifesaving abortion services are legal. In other words, the Supreme Court interpreted the Irish Constitution to require abortion when necessary to save a woman's life.
Why was Halappanavar refused a lifesaving abortion? Her husband has been widely quoted as saying his wife's doctors told him it was because Ireland is "a Catholic country." But this fails to tell the whole story.
True, Ireland is a predominantly Catholic country, but it is also "the jewel in the crown" of the anti-abortion movement, a success story. Yet the actual rate of abortion among Irish women is similar to, and suspected to be higher than, that of countries where abortion is legal. It's just that Irish women don't have abortions in Ireland - they travel abroad for legal abortion services, a so-called "Irish solution to the Irish problem."
This helps maintain the silence and stigma around abortion, as does labeling abortion a crime. Doctors caught performing or assisting in abortions in Ireland can lose their medical licenses and face stiff criminal penalties. Women who seek abortions risk legal repercussions including life imprisonment. Despite the lack of prosecutions, the severity of Irish law and the unrelenting stigma of abortion have colored all medical discussions around care for women experiencing problem pregnancies.
At the same time, the supposed allowance for lifesaving abortions has proved to be a viable strategy for abortion opponents worldwide. By exploiting the bogus distinction between preserving a woman's life or her health more generally, anti-abortion extremists make their views more palatable to a broader majority. And in Ireland, these "compassionate" exceptions are not even followed, as doctors lacking guidelines are unwilling to risk jail time for an abortion that the courts might in hindsight consider not "lifesaving." A report this week by a government-appointed expert group, in response to the ruling by the European Court of Human Rights decision in 2010, proposes several conflicting approaches but fails to provide the needed clarity.
In medicine there are rarely bright lines. There are, for instance, no guidelines for doctors on the distinction between a medical procedure necessary to preserve a woman's life versus a procedure that would merely protect her health. Should a pregnant woman sit in a doctor's office or a hospital bed waiting for her health to decline to the point where her doctor feels that an abortion is inarguably legal, at which point it may be too late?
This is coming soon to a medical theater near you. Anti-abortion zealots in the United States seek to replicate Ireland's draconian laws by enacting fetal personhood legislation and emphasizing exceptions that in practice are unworkable. In the last election, moderate Republican candidates only had to support legal abortion in cases of rape, incest and life of the woman to be considered reasonable. As we've seen from Halappanavar's story, there's nothing reasonable about that.
Julie F. Kay is a women's rights attorney who represented three women challenging Ireland's ban on abortion before the European Court of Human Rights in the landmark case ABC vs. Ireland. She wrote this for Slate.