The Death of Savita Halappanavar and the Right to Life
By Claire Gardner, LLB Candidate, UWE
Following the death of Ms Halappanavar after a miscarriage in an Irish hospital on 28 October 2012 the family of the deceased lodged a claim before the European Court of Human Rights. The family argues that had she been allowed an abortion, she would still be alive today. The case is significant because in some circumstances the refusal to conduct an abortion may constitute a breach of human rights (notably Article 2 of the European Convention on Human Rights).
Ms Halappanavar, a 31 year old dentist,experienced a happy pregnancy until she went to hospital suffering from back pain. Ms Halappanavar asked a consultant to be induced but was refused because Ireland, as a Catholic country, prohibits abortion. It did not make any difference that she was Hindu and not Christian; she was told that as the foetus had a heartbeat, she could not have an abortion.
In Ireland abortion is prohibited under criminal law by virtue of Section 58 of the Offences Against the Person Act 1861. However, this does not necessarily mean that abortion is criminalised in all circumstances. The Act needs to be read in light of the Irish Constitution. Article 40.3.3 states that the foetus has ‘equal right to the mother’ and extends the right to life to an unborn foetus. However the scope of Article 40.3.3 is not certain and consequently reference must be made to case law when determining whether Ms Halappanavar’s rights have been violated.
In 1992, the Irish Supreme Court found in X’s Case that there is a constitutional right to abortion where there is a substantial risk to the life of the mother, including the risk of suicide, up to birth. Yet in Ms Halappanavar’s case although there was substantial risk to the life of the mother she was not allowed an abortion. Therefore, it is likely that refusing an abortion constituted a denial of Ms Halappanavar’s constitutional rights.
The Halappanavar case followed the European Court of Human Rights’ earlier 2010 ruling on abortion in A, B and C v Ireland. In the latter case three women argued that in practice doctors could face prosecution in cases where a woman’s life was not truly at risk, thus making abortions almost impossible to obtain. In A, B, C the third applicant was successful as she feared that the pregnancy constituted a risk to her life. The Court held that the denial of an abortion was in the circumstances an infringement of Article 8 (right to respect for family and private life.)
The European Court in A, B and C v Ireland considered that the criminal provisions of the Offences Against the Person Act 1861 would exercise a significant chilling effect for both women and doctors during the medical consultation process. Both the third applicant and her doctor ran a risk of a serious criminal conviction and imprisonment in the event that a decision taken in medical consultation, that the woman was entitled to an abortion in Ireland given the risk to her life, was later found not to comply with Article 40.3.3 of the Constitution. Any doctor advising patients in such cases also, of course, risked professional disciplinary proceedings and serious sanctions. The doctors understandably did not want to subject themselves to these risks and were therefore refusing to conduct abortions, even if the mother feared that her life was at risk.
Parallels can be drawn between A, B and C v Ireland and Ms Halappanavar’s case. Ms Halappanavar was also in fear of her life and was refused an abortion. It seems likely that there has also been a breach of Article 8 ECHR in the case. However, the doctrine of the margin of appreciation is often used by the ECtHR in cases relating to abortion as it avoids the Court having to determine the status of a foetus. Therefore, as there is a wide margin of appreciation due to moral views in Ireland it would prove difficult to enforce reform on the currents laws of abortion in Ireland.
That being said, on 15 January 2013 the Irish government declared that it planned to publish a Bill which will legalise abortion in restricted circumstances. Although the Bill only provides a legal framework to underpin the Supreme Court’s 1992 decision, this move has increased tensions between Ireland and the Catholic Church. Moreover, this Bill, if accepted, might stir a debate about the abortion laws applicable in Northern Ireland. Indeed, the 1861 legislation in place in Northern Ireland (the same as in Ireland) only allows abortion if a woman’s life is at risk. No doubt all these issues will be discussed in the inquiry into Ms Halappanavar’s death which will start in April 2013.