Julie F. Kay’s piece in Slate, “What the Irish Abortion Tragedy Means for the United States,” is the latest attempt to cast the death of a pregnant woman, Savita Halappanavar, in a Galway hospital as a cautionary tale for America. This is what would happen, the story goes, if Republicans succeeded in making abortion illegal except in cases where the mother’s life is threatened, as is the case in Ireland. Kay writes:
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.
First of all, it has yet to be established that Halappanavar died because she was refused an abortion. The Irish government health service and an independent watchdog group are currently investigating what occurred. But let’s assume that it happened as Kay describes. It would appear, then, that the doctors involved failed to adhere to the Irish Medical Council’s guidance which stipulates that:
In current obstetrical practice, rare complications can arise where therapeutic intervention (including termination of a pregnancy) is required at a stage when, due to extreme immaturity of the baby, there may be little or no hope of the baby surviving. In these exceptional circumstances, it may be necessary to intervene to terminate the pregnancy to protect the life of the mother, while making every effort to preserve the life of the baby.’
Now, critics of Ireland’s law maintain that, in practice, there is no established framework for adjudicating what cases meet the threshold described in the guidelines as “a real and substantial risk to the life (as distinct from the health) of the mother,” and that doctors’ judgment may be influenced by fear of criminal prosecution. The European Court of Human Rights ruled in 2010 that Ireland was obligated to clarify the issue through legislation or regulation, and, as Kay notes, a committee of experts has just released a report with proposals for how it might do so.
Kay avers, however, that the problem lies with any attempt to make “a bogus distinction between preserving a woman’s life or her health more generally.” But this distinction is a crucial one for any law that actually seeks to protect the life of the unborn child. A law that privileges the “health” of the mother over the unborn life — a law that could, for example, enable the taking of that life to avoid mental distress on her part — obviously fails to accord equal status to both lives. That legal equality is, of course, precisely what proponents of abortion oppose.
Ta-Nahesi Coates is groping toward a recognition of this disagreement when he writes at The Atlantic:
There is a chilling intellectual consistency in the behavior of Halappanavar’s doctors, and pro-life activists who we dismiss as “extremists.” Either abortion is murder, or it isn’t. If you believe the former then Halappanavar’s doctors were quite correct — they refused to murder a baby to save its mother.
He is mistaken that a consistent pro-life position requires that abortions be viewed as “murders.” The law recognizes multiple types of homicide for a reason, and in the circumstances Coates is discussing there is clearly no malicious intent.
It should also be noted that Republicans do not gain anything by denying, as recently defeated congressman Joe Walsh did, that it is medically possible for such hard cases to exist. As with rape, pointing out their rarity does not address the question of what should be done when they do occur.
So, what does Savita Halappanavar’s tragic death mean for the United States? Not very much. Ireland has an 1861 criminal law prohibiting abortion, a right to life enshrined in a constitutional amendment, some additional amendments to that amendment, and a handful of court cases interpreting all these. This is very different from the legal landscape in the U.S.: We have Roe v. Wade. If it were overturned and the right to legislate on abortion returned to the legislatures (and state courts), it is unlikely that Congress or most states would pass laws prohibiting abortion in all circumstances save a threat to the life of the mother. Those legislatures that did would have an opportunity to craft laws that could be clearly implemented.
Savita’s death may have been medical malpractice, and the doctors treating her may have acted contrary to Irish law. That isn’t clear yet. What does seem clear is that her sad case provides little evidence that the United States’ adopting protections for unborn life would result in similar tragedies.