Doctors and X: legislation, guidelines, and the need for clarity

Sally Rooney
Staff Writer

Sally Rooney explores legislation, guidelines and the need for clarity for doctors in the wake of the X-case 20 years ago

Savita Halappanavar’s death in a Galway hospital has led to renewed calls for legislation on Ireland’s 20-year-old X case. The 1992 supreme court ruling held that a woman had a right to an abortion given a “real and substantial risk” to her life. Despite its constitutionality, this right was never enacted in legislation. Pro-choice activists now claim that legislation for X would have saved Halappanavar’s life; anti-abortion groups say that existing Medical Council guidelines should have been enough for doctors to intervene, and further legislation is unnecessary.

The council’s current guide to professional conduct and ethics for registered medical practitioners do include provisions for abortion. Under section B, chapter 21, headlined Abortion, the guide states that in rare and exceptional circumstances in which “there may be little or no hope of the baby surviving, it may be necessary to intervene to terminate the pregnancy to protect the life of the mother”. Doctors who fail to comply with these recommendations can be struck off the medical register by the council, following an investigation into the individual’s fitness to practice medicine.

The anti-abortion activist group Youth Defence has called the guide “very clear” and denies the need for further legislative clarity; but the master of the National Maternity Hospital, Dr Rhona Mahony, says legislation for the X case “really does need to happen,” stating that both pregnant women and their doctors are in need of increased legal protections. The barrister and former doctor Simon Mills has described the X ruling “the very barest of superstructures” and called for greater legislative clarity. Pending the results of an inquiry, neither side can say definitively whether legislating for the X ruling would have been enough to save Halappanavar’s life; but with the facts so far available, we can at least have an informed discussion about that possibility.

It is important to bear in mind firstly the distinction between Medical Council guidelines and state law. Robert Obara, a spokesperson for the Reproductive Health Interest Group of Ireland and a medical student at Trinity, points out that the law governing Ireland’s abortion practices is the Offences Against the Person Act 1861, section 58 of which makes actions with “intent to procure the miscarriage of any woman” an offence punishable by life imprisonment.

With these restrictive laws in place, doctors caring for pregnant women who at risk have to choose between the possibility of disregarding the Medical Council’s advice by failing to terminate and the potential of breaking state law by carrying out a termination before it is legally permissible. While the X ruling distinguishes between a threat to the life and health of the patient, no clear legislative parameters are provided to clarify for practicing doctors the distinction between risks to a pregnant woman’s life and risks to her health. Assessing such a distinction in emergency situations may well be difficult enough without the threat of legal or Medical Council action on either side, particularly when the law in question is one hundred and fifty years behind contemporary medical practice.

“While the X ruling distinguishes between a threat to the life and health of the patient, no clear legislative parameters are provided to clarify for practising doctors the distinction between risks to a pregnant woman’s life and risks to her health.”

Speaking to Trinity News, a practicing Irish psychiatrist emphasised the need for clearer legislation. She commented on the “lack of discussion” afforded to abortion in medical circles. A culture of silence around the practice of termination in the medical community can be dangerous for patients who are seeking or have had abortions, as she suggested women are “stigmatised” and “afraid to tell their GP” about their termination. “I know other doctors who’ve had terminations,” the psychiatrist said, “and they would never tell their GPs themselves.” Obara too emphasises the inability of doctors to care for patients properly under current legislation, citing the prohibition on referrals for abortion services abroad. When doctors are legally liable for involving themselves directly or indirectly in the provision of abortion, the resultant caution can be fatal. Meanwhile, patients wary of confiding in their doctors can compromise the quality of their own care.

By and large, anti-abortion groups and politicians here in Ireland have responded to Halappanavar’s death by re-affirming the right of a pregnant woman to an abortion if her life is in danger. This is hardly controversial. One of the reasons no real legislative clarity exists to provide for those cases is because the X ruling makes provision for another, more divisive issue: the constitutional right to abortion when the risk to the mother’s life is a risk of suicide.

In a 1992 referendum following the supreme court ruling, the Irish people voted down an amendment that would have overturned the part of the judgement providing for suicide; 10 years later, the electorate once again endorsed the right of Irish women to seek abortion when the risk is one of “self-destruction”. No legislation followed, and in 2010 the European court of human rights ruled that while there is no general European right to abortion, Ireland had violated the convention of human rights by failing to provide women with a way to establish whether or not they qualify for abortion under Irish law.

In short, then, although X legislation might provide greater clarity around how exactly to assess and deal with pregnant women whose lives are at risk from medical conditions like Halappanavar’s, it must also provide the right to abortion for women whose lives are at risk due to suicide. Despite the constitutionality of this right, following on its affirmation through two referendums, it remains hugely controversial. Two Fine Gael TDs – Cork East’s Tom Barry and Mayo’s John O’Mahony – pledged earlier this year to oppose any legislation which would facilitate the right to abortion in Ireland. Barry claimed in August that “legislation could be the introduction of abortion through the back door, using mental health as the criteria”.

The suicide clause has led to a debate in Irish public life about the toll of reproductive rights on women’s mental health. Campaigns like Women Hurt in Ireland have sought to highlight the regret women experience after their abortions; the most prominent poster campaign of the anti-abortion group Youth Defence featured a young woman’s photograph ripped in half with the text “Abortion Tears Her Life Apart”. If abortion is shown to be harmful, rather than helpful, to a woman’s mental health, then surely the provision in case of a risk of suicide ceases to be meaningful; or so the logic goes.

“Research indicates that, after an unplanned pregnancy, abortion is no more likely to cause mental health problems than any other course of action.”

The psychiatrist speaking to Trinity News was quick to point out that, while the stigma attached to abortion can naturally impact women’s mental well-being, “there is no such thing as post-abortion syndrome”. Indeed research indicates that, after an unplanned pregnancy, abortion is no more likely to cause mental health problems than any other course of action.

“On the other hand, post-natal depression,” she added, “is very well-described.” Any response to abortion on the part of the pregnant woman, whether regret or relief, must be considered valid; but these responses are neither sufficiently uniform nor detrimental to be useful in informing public policy. Nor are they constitutionally relevant.

But the refusal of successive governments to legislate for a constitutional right has raised other legal and medical concerns. An estimated 4,000 Irish women travel outside Ireland, usually to the UK, for abortions every year. These women pay for travel and medical expenses, often in secret, but do not necessarily receive a high quality of after-care, or indeed any at all. Furthermore, terminations that take place in the UK rarely appear in women’s medical histories when they return to Ireland, despite the medical significance of the procedure.

It also leaves a subset of women who are for various reasons unable to travel. Asylum seekers, for example, must apply – and pay – for emergency visas to enter the UK. Most asylum seekers receive an allowance of just €19.10 a week and are prohibited from working to supplement that income, while the cost of a visa to and from the UK is, depending on exchange rates, about €100. In this context, the fact that over 1,200 home abortion kits were intercepted by gardaí in 2009 and 2010 is an indicator that, without legal paths to termination, women will risk their health to avoid carrying their foetuses to term.

Obara is keen to discuss the particular problem current legislation poses for medical students. With no active abortion providers working in Ireland at the moment, students have little on-going exposure to or training in the process of termination and the medical care surrounding it. In the event that the governmental expert group recommends immediate legislation for the X ruling, Obara says there is a “real danger” of an educational deficit in the medical community as to how to care for women going through abortion procedures and thereafter. Organisations like the Reproductive Health Interest Group and the international organisation Medical Students for Choice focus on the danger of depriving students of experience and expertise, particularly while reproductive legislation may be changing.

The X ruling remains a restrictive one, which means that no matter how liberal the following legislation proves it will not a panacea for these concerns in the medical community. In emergencies like Halappanavar’s, the judgement only provides for termination when the life of the mother is at risk; and as Mills has pointed out, with the facts currently available, Halappanavar’s condition may not have been technically life-threatening until after the delivery of her miscarried foetus. If that was the case, then greater legislative clarity on X could still have left her medical team with the option not to terminate.

In that case, one thing remains to be noted before the results of the public inquiry: Halappanavar requested a termination herself, just one day after being admitted, before her condition was seriously health-threatening. Neither the X ruling nor the Medical Council’s advice to doctors provide the right to an abortion on request; but if they did, Halappanavar would almost certainly be alive today.