X case is irrelevant to Savita’s death. The problem is the eighth amendment

I KNOW the judges have a beef with Justice Minister Alan Shatter, but my problem is fudge.

Last Monday, on RTÉ’s Morning Ireland, Shatter advocated legislating for X in the context of Savita Halapanavar’s death: “We’ve seen the kind of difficulties that can arise when there is legal confusion.”

Legislating for the X case has nothing to do with the death of Savita Halapanavar. A law allowing abortion when there is a threat to the life of the mother would not have saved her. A doctor performing an abortion under those circumstances already had the protection of the Constitution.

A law allowing abortion when the threat to the life of the woman is that of suicide — as we will have if we legislate for the X case — could scarcely be more irrelevant to the life and death of Savita.

Dr Katherine Astbury did not perceive a serious risk to Savita’s life, until it was too late to save her. Dr Astbury might have perceived a risk, had she had the results of her initial blood test, which showed a raised white blood cell count, a sign of infection. But the blood test was not followed up.

As we know from the results of this week’s inquest, Savita’s vital signs were not checked regularly, and when there were abnormalities, senior hospital staff were not aware of them. Whether nursing staff attempted to alert them is in dispute and, even after the inquest concludes tomorrow, we may not know the answer.

On that crucial Wednesday morning, as the infection got its teeth into its precious victim, Dr Astbury was not made aware of the “foul-smelling” vaginal discharge that would have caused her to terminate Savita’s pregnancy immediately.

By the time staff at Galway University Hospital realised there was a threat to Savita’s life, it was too late to save her. Septicaemia sometimes kills people, even if their care is optimal, but Savita’s infection succumbed to antibiotics before she died and this must leave us with the suspicion that she could have been saved.

Tell me how legislation for X would have helped? It will not allow for abortion when there is a threat to the health of the woman — as opposed to a threat to her life — and Galway University Hospital only perceived that Savita’s life was under threat four days into her hospital stay.

Nor will legislation for X allow for abortion if the woman wants one, as Savita did once she knew her longed-for baby would not live. Tragically, she had the correct instinct as to what would have been best for her own health.

Pro-choice groups have made enough fudge to cover up the fact that legislation for X would not have helped this beautiful young woman, because they see it as their best chance of legalising abortion in Ireland.

The Government is playing along because the European Court of Human Rights has ruled that Irish women need clarity on Irish abortion law. The Supreme Court judgement in the X case, allowing abortion on the grounds of a threat to the woman’s life by suicide, has not been legislated for, which leaves us in limbo. The reason why successive governments have failed to legislate is, no doubt, because of the difficulties inherent in allowing the risk of suicide as grounds for abortion.

The Labour Party put legislating for X into the Programme for Government, and achieving it is vital to their survival in government. This matters more to them now, with the dust flying after the collapse of Croke Park II.

Our profound emotion about this death is being exploited to push through legislation for the X case, to which it has no relevance. This reminds me of George W Bush’s rush to invade Iraq, when he was attacked by Al-Qaida, which was headed by a Saudi who was headquartered in Afghanistan.

The problem is not that there is no legislation for X. Instead, it is the constitutional provision that led to X. Garret FitzGerald, then taoiseach and leader of Fine Gael, was persuaded by so-called pro-life groups to hold a referendum to protect the life of the unborn child in the Constitution in 1983. He later said that this was one of the biggest mistakes of his political career.

The eighth amendment protects the life of the foetus in the womb as equally as it does the mother’s life. As we have seen in Galway, this can lead to dangerous calculations as to who is in most danger.

John Rogers, SC, said in defence of X, in 1992: “If women die needlessly because their lives are only ‘saved’ when there is an imminent risk of death, this is going too far and would be contrary to the common good.” It was certainly contrary to the good of Savita.

The amendment, which aims to protect the unborn child as if that child were walking down Grafton St and not, as Rogers says, “contingent” on the life of the mother, is the problem. It has been adduced in a case taken by Waterford Regional Hospital in March which aimed to compel a woman to undergo a Caesarian section against her will. New HSE guidelines will, it is rumoured, explicitly alter their procedure on patient consent when pregnant women are the patients, due to the separate constitutional right to life of the unborn child.

But we are not prepared to give the eighth amendment the force of law. We are not prepared to lock women up and force them to have babies they don’t want. Justice Hederman, the only judge to dissent from the Supreme Court judgement granting Ms X the right to seek an abortion, said, at the time, that “suicide threats can be contained”, particularly within the context of a time-limited pregnancy.

But even then, we were not prepared to lock Ms X up and keep her under surveillance for the duration of her pregnancy. As we proved by referendum in that same year, we were not even prepared to stop a woman travelling to the UK for an abortion.

The Supreme Court judgement, which allowed for Ms X to have an abortion in the UK to protect her life because she was suicidal, was a Houdini-like attempt to get us out of the straitjacket of the eighth amendment. It has left us tied up in knots. We have stressful, expensive access to the relativelyunregulated abortion economy of the UK, which allows the savagery of elective abortion at 24 weeks. If we legislate for X, we will have abortion in Ireland for women who are at death’s door or can prove they would rather die than have a baby.

We need to repeal the eighth amendment. Only then can we have a sensible conversation about changing our abortion laws. And only then can we say we have learned anything from the death of Savita Halapanavar.