Ronan O’ Callaghan: The New Death Penalty

On the 28th of October a young woman, Savita Halappanavar, died in Ireland at University Hospital Galway from septicaemia. What is exceptional about Halappanavar’s death is that it is a direct result of Irish law; Savita Halappanavar died by the law and under the law. The law in question is Ireland’s ban on abortion. A pregnant Halappanavar entered hospital on the 21st of October, after examination doctors informed her that she was miscarrying and her child would not survive. While this news was traumatic in itself, ultimately, a farcical legal bind resulted in a clearly avoidable death. After enduring twenty-four hours of intense pain, both emotional and physical, Savita Halappanavar asked for a termination. Her request was denied because under Irish law a pregnancy cannot be terminated while a foetal heartbeat remains. As such, even though the medical professionals involved knew with certainty that the foetus could not survive, they legally could do nothing to protect their patient. Even when Halappanavar became increasingly sick, vomiting, shaking, shivering, pumped with antibiotics to stop the pain, and her husband pleaded for help, the termination was repeatedly refused. As one consultant told her, Ireland is a Catholic country and abortion is against the law. Despite being neither Irish nor Catholic, Halappanavar was forced to endure three full days of sickness, pain and agony until the foetal heartbeat had stopped. By this point she had already developed what proved to be a fatal illness, and was moved to the intensive care unit where she died as a law abiding citizen in a foreign land.

 

There is a big part of me that doesn’t want to get embroiled in this topic. It is difficult to solicit any form of productive discussion between the poles involved in the abortion debate, and practically impossible to do so in the Irish context. Yet, the death of Savita Halappanavar stands as a warning sign that we have been brushing a major ethical problem under the societal rug for far too long. The debate surrounding abortion has been submerged in a moral-scientific nexus in which both poles aim to resolve the question by trying to fix the moment of becoming-human to a specific point of the pregnancy. The core claim, from both sides, is that we need to protect human rights; the rights of the mother versus the rights of the unborn child. However, what is lost in this moral-scientism is a grasp of the ethical and political. When we try to resolve the problem in the context of human rights, in terms of the point when a collection of cells becomes the bearer of rights, we start from the assumption that there is a singular right answer to this problem. We start from a position where we think that this is a problem that can be definitively solved once and for all. Ultimately, this is a debate that almost certainly lacks an Archimedean point, and definitely lacks an Archimedean point that will be unanimously accepted. We become locked in a circular back-and-forth that never goes anywhere, and even Kafka is bored out of his fucking mind. While all this pedantry is going on, the ethical and political dimensions of the question drive the debate toward decision; primarily, in this context, the decision of who gets to decide if termination is legally acceptable. In this sense, it is perhaps more productive to frame the debate in terms of the ethical implications of who gets to decide if terminating a pregnancy is possible.

 

The legal ban on abortion places the decision in the hands of a governing body. It legislates for a generality, and as a generality it must start from the position that all pregnancies are the same; equality under the law begins with the rejection of individual circumstance. This is not to say that the generality cannot be amended to exclude certain exceptions. In fact, since 1983 Irish abortion law affords equal rights to the life of the child and mother, creating a vague legal exception that a termination can be preformed if life of the mother is at risk due to pregnancy. However, in 2010 the European Court of Human Rights criticised Ireland for not enabling women to terminate in cases where their life was at risk, and in practice these exceptions have been irresponsive, resolved in prolonged court battles that would have been completely pointless in the case of Savita Halappanavar. More worryingly deciding abortion in terms of a general law is ethically irresponsible. The decision becomes administrative: it is no longer a question of doctors’ ethical responsibility to a woman suffering in agony while her foetus slowly dies, it becomes a question of acting in accordance with the law. The relation between doctor and patient mutates into a relation between a doctor and a subject of the law; it becomes a technical relation with the law rather than an ethical relation with a person. When care professionals are pushed to detach themselves from the human aspect of their duties in this way we have cause for disgust and outrage. Invariably, the problem with the general law banning abortion is that it denies that this is still an ethical and political question. The ethics and politics have been decided in advance, we the Irish people reject abortion on moral grounds, and if a problem arises, as in this case, the blame gets shifted to the administration of the law. The question becomes why didn’t the hospital interpret the law differently rather than a questioning of the law itself.

 

On the other hand, removing the legal ban on abortion at least begins to acknowledge that we are dealing with unresolved ethical and political questions. It places the decision in the hands of the people directly affected by the pregnancy, and allows us to conceive every pregnancy as a new and unique set of ethico-political questions. Above all, removing the ban on abortion means that, as a society, we can no longer ignore the issue of abortion in Ireland. We can no longer rest on the moral satisfaction that the issue has been resolved by a singular, clearly inadequate, law. Savita Halappanavar provides an especially public and tragic example of the inadequacy of Ireland’s abortion legislation, but she represents just one aspect of a much larger problem. From 1980 – 2011 at least 150,000 Irish women, for a myriad of reasons, have travelled to the UK to terminate pregnancies. Regardless of the law Irish people are making their own decisions on abortion. In this sense, Irish abortion legislation is primarily focused upon morally stigmatising the decision of these women rather than directly preventing terminations. In fact, if the law does prevent Irish abortion, it primarily does so in cases where the women involved cannot afford to travel for a termination, making a farce out of the concept of equality under the law. Irish abortion legislation sweeps an important ethical question under the carpet by claiming that this question is already resolved and those who think otherwise are morally reprehensible. What Savita Halappanavar’s death shows us is this question hasn’t been resolved and our unwillingness to engage with the topic on any meaningful level has potentially lethal consequences. The last case of capital punishment in Ireland was the execution of Michael Manning for rape and murder in 1954. In a baffling system, capital punishment remained on the statute books until 1990, but those sentenced to death had their sentence automatically commuted by the President. In truth, capital punishment is still alive and kicking beneath the gallows of absurd legislation. Savita Halappanavar was killed under Irish law, not as punishment for a crime, but as a legal obligation resultant from a society that for far too long has refused to take responsibility for its unresolved ethical, political and theological baggage.

 

Ronan O’ Callaghan 14/11/12

2 Comments on “Ronan O’ Callaghan: The New Death Penalty

  1. Very interesting Ronan. For me, the most powerful (and depressing) point is that access to abortion is based on wealth. I can’t see any coherent argument from any of the sides of the debate against addressing this.

    After reading this article by Eilís Mulroy (http://www.independent.ie/opinion/analysis/eils-mulroy-prochoice-side-must-not-hijack-this-terrible-event-3294723.html), I see that your point that debate on ethics is worryingly absent is an important one.

    • I agree David, the economic aspect is routinely ignored because it brings to light the fact that Irish abortion legislation doesn’t actually prevent abortion. People seem happier to believe that the law upholds their moral opposition to abortion rather than acknowledge that the law specifically targets a section of Irish society from whom travelling to the UK for a termination is financially impossible.

      The Mulroy article is exactly the type of response I anticipated: the problem is that doctors didn’t interpret the law correctly, rather than the law itself being inadequate. I find it frightening that a group of health care professionals are so afraid that they will be labelled murderers that they can watch a women’s health rapidly decline before their eyes without intervening. When a law prevents a doctor from treating their patient as a person, then we have reached a point when it is literally blocking the possibility of any meaningful ethical relationship.

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