Another abortion case and a Commentary

The Irish Times
WITHIN DAYS of the European Court of Human Rights’ (ECHR) ruling against Ireland in the A, B, C case it has emerged that another woman, Michelle Harte, has faced, like C, a cancer-complicated crisis pregnancy also resulting in a British abortion. Time and again, in the history of our abortion debate, life throws up profoundly painful cases that test the limits, ambiguities and inadequacies of our law and of the politics of denial that underpin it. Ms Harte’s pregnancy and cancer have done so again, to her cost and our shame. As she faces into an uncertain, curtailed future she has shown a real courage, like Susie Long did, in speaking out about her treatment to ensure that others do not have to go through the same hell.

There are important differences between her experience and the A, B, C case, specifically in respect of Ms Harte’s ability to find Irish doctors willing to say she needed an abortion, and a hospital ethics body to consider her case, although it would “offer guidance” against her. In the C case the ECHR found that neither medical nor litigation options available to her in Ireland constituted “effective or accessible procedures” to vindicate her rights. It ruled that it could therefore hear her case because she had “exhausted domestic remedies”, and that, on the substantive issue, Ireland had failed to provide her with means to access her right to an abortion.

Yet it is clear that Ms Harte’s right, established by the Supreme Court in the X case, was also not vindicated by the ethics forum at Cork University Hospital. It is understood to have ruled against her on the basis that the threat to her life was not “immediate”, instead of applying the more permissive X case standard. Did the decision not to allow her a legal abortion, and the ensuing delay, cause her immediate death? Clearly not. Has it shortened her life? Almost certainly.

Yet, central to the Government’s case to the ECHR, but not accepted by the court, was not only that C could have accessed a legal abortion in Ireland had she pursued the issue here, but specifically that she did not have to establish an “inevitable or immediate” threat to her life to do so. All she had to do, the Government’s pleadings insisted, was to establish, in line with the X case, “as a matter of probability, that there was a real and substantial risk to [her] life, as distinct from [her] health … and that this risk could only be averted by the termination of her pregnancy.” It would not be unreasonable for Ms Harte to ask whether the ethics forum in her case was aware of, or ever willing to, work to that standard.

To date, because records are either not kept or not made public, there is no evidence that any hospital ethics committee has been willing to sanction an abortion even though the Government acknowledged to the ECHR that some 700 ectopic pregnancies arise every year. A proportion of those will certainly have resulted in sanctioned abortions, though not acknowledged as such. It is an obfuscation that may well have contributed to the ECHR’s view that Ireland is not anxious to vindicate women’s rights in this regard.

Commentary.

1. It is noteworthy that Ms Harte found Irish doctors willing to say that the best course of action for her was an abortion. The question of the Cork University Hospital’s decision that the threat to her life was not immediate comes down to definitions. If immediate means in the next few hours, days or weeks – less than one month, then the Ethics Committee was correct in its statement. That there was a real threat to her life was probable assuming the competence of the doctors giving her advise.

2. I know of no Irish hospital where an ethics committee has sanctioned an abortion. I do not know if there are contingency decisions made on the subject in any hospital offering acute obstetrical or surgical care. But if there has been no such discussion or decisions, the establishment – medical and adminiostrative – has been negligent in my view.

3. With regard to ectopic pregnancies, these are treated with appropriate medical or surgical interventions and should not go to an ethics committee.

4. On 17 December on this site I dealt with the inconsistency in the Medical Council’s Ethical Guide. Number 4 in the Ethics Guide needs to be altered. “It is not lawful to encourage or advocate an abortion in individual cases.” If the patient’s life is endangered, how can that stricture be applied?

5. Could anyone tell the country where is a legal abortion available in the Republic of Ireland?