RH Reality Check: Silence and Denial Don't Work: Ireland, Malta, the European Union and the Lessons of Savita's Death
by Johanna Westeson, Regional Director for Europe at the Center for Reproductive Rights
11.20.12 - Much has been said about the tragic death of Savita Halappanavar in Galway, Ireland last month. Even before seeing the outcome of the official investigation we can conclude that her death was the result of a combination of factors: inhumane laws, lack of guidelines on how to apply the laws that do exist, fear of prosecution on behalf of doctors, medical incompetence, influences of the most conservative wing of the Catholic Church over hospitals, and—as pointed out recently by Jodi Jacobson—a general climate of misogyny, poisoning both the medical establishment and society at large.
Twenty years ago, the Irish Supreme Court established that abortion is legal when a pregnant woman's life is in danger. More specifically, it ruled that
termination of pregnancy is lawful "if it is established as a matter of probability that there is a real and substantial risk to the life, as distinct from
the health, of the mother, which can only be avoided by a termination of the pregnancy." Please note how restrictive these words are: "real and substantial
risk" and "life, as distinct from the health." With due respect for a court that took a courageous step forward in a country where the issue of abortion is
and was taboo under any circumstance, it is remarkable how the ruling goes out of its way to make this exception to the abortion ban as narrow as possible.
Anyhow, these are the parameters. It is the law of the land.
But nobody knows how this rule should be understood because there is no further guidance. No written law, no guidelines, no official interpretation. So doctors in Ireland, whether pro- or anti-choice, whether in Catholic hospitals or elsewhere, must navigate around this. It may be that in Savita Halappanavar's case, the situation was crystal clear: her life was in danger, the situation was acute, an abortion would probably have saved her, and doctors refused her care because they favored the life of her unviable fetus over hers. It is even likely that this was the case. But in most situations, threats to the life and health of the pregnant woman cannot be so clearly distinguished. Usually, a threat to life is preceded by a threat to health. So is a doctor to wait until a critical health situation turns into a life-threatening situation? It appears that way. How does this correspond with medical ethics? It doesn't. I do not envy ob/gyns in Ireland. I cannot imagine the agony that they, or many of them, must experience when a woman shows up with pregnancy-related complications. This is not to take away any of the responsibility from those doctors or the hospital that treated, or mistreated, Savita Halappanavar. It is only to shed light on the context in which they are operating.
The Irish government thus refuses to make life a tad easier for doctors and thereby out of sheer cowardliness refuses to prioritize women's right to life. Related is its general "no-see, no-hear" approach to the issue of abortion. As described brilliantly in a recent piece in the Irish Times, the government wishes that abortion didn't exist so pretends that it doesn't exist. There is no data on abortion in Ireland. Abortion under certain circumstances is supposed to be legal, but the government gathers no statistics on its occurrence. When asked a few years ago by the European Court of Human Rights how often the constitutional right to terminate a life-threatening pregnancy is practiced in Ireland, the government answered that it does not know. Because it is struggling to find out, but hospitals and doctors conceal this critical information? Of course not. It is because the government wants to uphold the myth that yes, theoretically such terminations are legal—this is convenient to report to human rights bodies and the UN, for example—but really, pregnancies don't tend to threaten anybody's life and so this theory does not have to be turned into practice. Shouldn't pregnancy be a happy occasion, after all? Let's pretend it always is.
In Malta, another island-nation on the outskirts of Europe, abortion is banned altogether. Not only in practice but also on paper; under no circumstances is the termination of pregnancy allowed. Malta is heavily influenced by Catholic Church policies and there tend to be strong links between the Vatican and the Maltese political class. No official statistics on abortions exist in Malta either, but it is well-known that a number of Maltese women travel to the UK and to Italy for terminations every year. In contrast to Ireland, very little opposition to the harsh law is aired. Not because nobody thinks the law is unjust, but because, as one Maltese anthropologist recently pointed out, in Malta the issue tends to be discussed in terms of life or death for babies, and "who wants to kill little babies?"
What do Malta and Ireland have in common, that is in addition to being under strong Catholic Church influence and that the women living there are taking the toll (as always)? They are also both members of the European Union (EU). And being part of the EU means that they both nominate members to the European Commission, the Union's powerful executive body. The European Commission members, or commissioners, are supposed to serve not as representatives of their home countries but as officials of the Union, as experts who will pursue the interests of the EU as a whole. Now, Malta is one of the smallest member states. And health is an issue on the outskirts of the EU's mandate. In health matters the EU cannot issue binding legislation but only conduct research, publish recommendations and guidelines, disseminate best practices, and so on. Thus, the responsibility for health matters has been given to the small and somewhat insignificant member state Malta.
The former Health Commissioner, John Dalli, was recently forced to step down following accusations of corruption and now his replacement has been announced, Malta's current foreign minister, Tonio Borg. True to his government's official stance, Borg is a long-standing opponent to reproductive and sexual health and rights. He voted against the legalization of divorce in Malta in 2011. He is staunchly opposed to rights of same-sex couples. And, proudly involved with an outspoken anti-abortion group, he has advocated for introducing the ban on abortion into the country's constitution so that it cannot be repealed by parliament or annulled in a court. This man has been nominated to be the primary spokesperson of the EU on issues related to health. The vote on his nomination will take place on Wednesday, November 21.
Before adopting the EU Treaty in 1992, Ireland received a guarantee that the Union would not touch its abortion legislation. During its accession negotiations in the early 2000s, Malta obtained the same assurances. And more generally, due to its narrow mandate on health, the EU cannot legislate on issues related to abortion or other reproductive health matters. In the hearing before the European Parliament last week, Tonio Borg eloquently assured concerned parliamentarians that he will abide by EU policies and that his personal views on abortion will not cause any problems as these issues fall outside of the EU's mandate.
However, contacts in Brussels have testified that when former Maltese Commissioner Dalli assumed his position, most Commission initiatives—whether research, exchange of best practices, or recommendations—even remotely linked to sexuality or reproduction were stopped. And yet Dalli's official profile was nowhere near as anti-women and anti-choice as Borg's. The point is not whether the EU can legislate on abortion or not. The more important point is that the Union, and all its representatives, should stand for and defend the fundamental human rights that are enshrined in the EU Charter on Fundamental Rights and in other international treaties. Borg's position appears to be that as long as he ignores the relationship between these values, which he as an official of the Union is supposed to embody, and women's access to fundamental reproductive health care, including abortion, then he can do his job just fine. He seems to think, similar to the Irish government, that as long as he is silent about women's need to terminate their pregnancies, and the rights violations that occur when abortions are denied to them, then maybe these ugly issues will simply disappear.
The Irish government has tried silence and denial for twenty years. Clearly, it doesn't work.