Tuesday 12 December 2017

The tragic irony is that we don't know if latest legislation would have prevented her death

Jennifer Schweppe

Given that the death of Savita Halappanavar was one of the driving forces behind the government decision to legislate on the abortion issue, it is something of a sad irony that the report into her death was published yesterday, on the same day of the Protection of Life in Pregnancy Bill 2013. What is even more sadly ironic is that were the legislation in place at the time Ms Halappanavar was being treated, it is not in any way certain she would be treated any differently.

The bill applies to a very narrow set of circumstances, where a pregnant woman is suffering from a medical condition which poses a substantial risk to her life. What, then, of Ms Halappanavar? True, once her life was in danger, a termination was permissible. But was it constitutionally necessary for her life to be in danger before a termination was permissible? I argue not.

Ms Halappanavar's miscarriage was inevitable. There was no possibility her pregnancy could be brought to term. To require women in these circumstances to continue with their pregnancies is, to my mind, a misinterpretation of the Constitution. I believe that where a miscarriage of pregnancy is inevitable, or where the foetus is suffering from a fatal foetal abnormality, the test in the X Case no longer applies. That test presupposes the viability of the foetus, and where a pregnancy is not viable, I believe that the constitutional perspective changes. On this re-examination, I believe a termination of pregnancy is permissible, even where there is no threat to the life or health of the woman.

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