Inquest finding will prove challenging for legislators

The evidence of Dr Peter Boylan, the former master of Holles Street maternity hospital, to the inquest into the death of Savita Halappanavar in Galway this week gave a very timely reminder of the immense difficulties of drawing up abortion legislation that strikes a balance between protecting the lives of women and vindicating the right to life of the unborn.

Dr Boylan told the inquest that if Ms Halappanavar had been allowed an abortion on the Monday or Tuesday, “on the balance of probabilities” she would still be alive.

He set out the difficulties in some detail. There was a legal vacuum not covered by Medical Council guidelines. Legally, an intervention could only take place if there was a real and substantial risk to the life of the mother, but the guidelines did not stipulate how those conditions would be met in such situations.

There were huge uncertainties and no real guidance in determining when that risk was high enough. The paradox was that it was not high enough on Monday or Tuesday, yet if a termination had been carried out there was a high probability her life would have been saved. When it could be said with certainty on Wednesday that the risk to her life was high enough to allow a termination, as the tragedy that quickly unfolded showed, it was too late to save her.

“That’s the current position. There are no guidelines. Doctors are working in a legal vacuum. Unless a woman looks like she is going to die. . .we are on very sticky ground,” he said.

A Government Minister who carefully followed Dr Boylan's evidence says it was “stark” in bringing home the scale of the challenge that legislators will face.

The draft of the legislation will be brought to Cabinet by Minister for Health James Reilly next Tuesday. Its details have been very closely guarded.

“None of us have seen the Heads of the Bill yet,” a Labour Minister says, but adds that “If you ask any member of my party, we certainly hope that it will cover the Savita Halappanavar case”.

The Protection of Maternal Life Bill, it is understood, will not go beyond the principles established in the X Case in 1992 that an abortion can be carried out only in circumstances where there is a real and substantial threat to the life of the mother.

The proposed legislation will place that ruling on a statutory footing by way of legislation and regulation, and will also give effect to the ruling of the European Court of Human Rights in the A, B and C cases.

The court found against Ireland in one of three cases taken in respect of abortion laws here. In the C case, it ruled the State had failed to respect the private life of a woman, C. She had cancer and unintentionally became pregnant while in remission.

Her quandary was that she was unable to obtain clear medical advice on how the pregnancy would affect her cancer, her wellbeing and her life. Neither could she get a definitive determination on whether she qualified for a lawful termination. The case is not directly comparable to the Savita Halappanavar case but is analogous in some respects.

A number of TDs and Senators to whom The Irish Times has spoken say they believe the law will fully address the lacunae identified by Dr Boylan in the course of his evidence.

Labour Party Senator and law professor Ivana Bacik highlights an aspect of the 1992 Supreme Court judgment in the X case that she believes should give significant reassurance to doctors faced with such situations when the legislative framework and its detailed guidelines become law.

She refers to the judgments of two of the five Supreme Court judges, Hugh O’Flaherty and Niall McCarthy: “If you look at the judgments, the point was emphasised that a real and substantial risk does not have to be imminent as long as it is identifiable.”

O’Flaherty’s judgment in 1992 argued that “The danger has to represent a substantial risk to her life though this does not necessarily have to be an imminent danger of instant death. The law does not require the doctor to wait until the mother is in peril of immediate death.”

A similar point was made by medico-legal expert Simon Mills, a medical doctor and barrister, in evidence to the Oireachtas health committee’s hearings in January.

The Bill is the fruit of a compromise reached between the two Government parties in 2011. For a huge majority of Labour TDs, the preferred solution would have been for laws that allowed abortion in circumstances when there were substantial risks posed to the health of the woman, not only to her life.

But that position found little acceptance within Fine Gael where the Christian Democratic wing of the party is dominant. For those TDs, such an approach would “open the floodgates” and lead to abortion on demand.

The Savita case was, however, something of a watershed for the party and led to a significant number of TDs reappraising their positions on the compromise.

The all-but unanimous view within the party is that the new law should be drafted to ensure that no woman should die as Savita Halappanavar did. In real terms, that means an acceptances of a wider definition of “real and substantial risk” to include non-imminent, and some potential, situations.

Perhaps this could also extend to accepting the risks presented by a non-viable foetus. Draft legislation written by Dr Mills, and presented to the health committee, included such provisions.

The difficulty for a minority of the party’s TDs and Senators relates to another aspect of the Supreme Court ruling in the X case, that the threat of suicide or self-destruction can be seen as representing a real and substantial risk to the life of the mother.

Some remain very opposed to such an exception because they do not accept the premise, believe such a provision will be abused, and will therefore represent a slippery slope effectively to abortion on demand. Others will look carefully at the language and the safeguards that have been included – they will expect the requirement for medical authorisation to be both robust, conservative, and completely unambiguous.

The message from Taoiseach Enda Kenny to his party has been that the legislation will be passed before the summer and a strong whip will be imposed. That means, in realpolitik , the law will successfully complete its passage but not without travelling through turbulent waters.