There are about 330,000 unwanted pregnancies every day around this world of ours, about 7700 of them in the US, and that’s an awful situation. The outcomes are most awful when the public-policy solution attempted is abortion on demand, and less awful under the fraught solution of banning abortion without other structural changes in society. They will be least awful in the US when, side by side with the bans, the 7700 figure is reduced in the first place through aggressive education on sex and contraception, and the impact on pregnant women is cushioned by aggressive safety networks for pregnant women, mothers, and children. But even at best there will always be unwanted pregnancies and an awful situation.
Since the Dobbs decision, the media have carried many reports of injuries to pregnant women or other kinds of suffering occasioned pregnant women, and have even leveled accusations that some of that suffering could not have been offset by any potential saving of unborn lives, and hence was entirely inexcusable. Much of that reporting has been dishonest, but is it in fact possible to save unborn lives from abortion without some degree of physical and economic suffering for pregnant women, and perhaps even at times (as in the accusations) a collateral-damage kind of physical suffering that turns out to serve no purpose? If anti-abortion laws will cause some degree of suffering for many, many women, that is an awful situation, even if abortion on demand is a still more awful situation.
Thanks to Dobbs, many states now have strong legal protections for the unborn. But Dobbs gave the power to “the people and their elected representatives,” and it was naturally only the elected representatives, not the people acting directly, who were ready with legislation at the starting gun. What will happen in the long run when the people speak directly – will they speak forever as they did in Kansas and Michigan and California and Vermont and Kentucky and Ireland?
Savita Halappanavar was admitted to a hospital in Galway, Ireland, on a Sunday in October 2012, on the point of miscarrying a baby at seventeen weeks’ gestational age. The nature of the impending miscarriage should have been a sign to look for infection, but this was not followed up. A blood sample was taken for other reasons and an elevated white blood cell count was found, a sign of infection, but the report did not reach the doctor in charge of her case until that Wednesday. “Speaking at the inquest, Dr Astbury stated that if she had had access to the blood results earlier, she would have taken measures to terminate Savita’s pregnancy on the Monday or the Tuesday.” Ten hours after her admission, the membranes (amniotic sac) ruptured. Twenty-two hours later, she was started on oral antibiotics due to the ruptured membranes. Ten hours after that, on Tuesday, having learned that the baby was alive but could not survive, she requested an abortion but was refused since the baby’s heart was still beating. Thirty-one hours after that, by which time it was understood that some infection was present and she was on intravenous antibiotics, she miscarried. About eighty-one hours after the miscarriage she died of cardiac arrest caused by septic shock, sepsis being “a systemic illness that complicates severe infection.”
The jury at the coroner’s inquest unanimously ruled her death “medical misadventure.” I have found different Irish definitions for that term, but under none of them could it be understood that the jury assigned any blame to any Irish law then in force. Nevertheless, not everyone agreed. Halappanavar’s death became weaponized in an extremely effective way for an abortion-rights movement in that country that culminated in a referendum in 2018 repealing the 8th Amendment of the Constitution Act 1983, and opening the door to the legalization of abortion. The legalization of abortion has resulted in turn in a big jump in the percentage of pregnancies in that country that end with an aborted baby.
(Incidentally, that jump helps disprove, if it is still necessary to disprove, the long-lived pro-choice claim that laws do not prevent abortions, but only safe abortions. The anti-abortion laws in place before the repeal of the 8th were clearly keeping the abortion-to-pregnancy rate low.)
When the people spoke in Ireland, perhaps the biggest single factor that motivated them was “Savita.” But mobs can be manipulated; did their vote really assign credible blame to the 8th? It seems to be universally agreed that her death could probably have been averted after she entered University Hospital Galway on October 21, 2012, but what exactly went wrong?
Besides the coroner’s inquest, there were a number of attempts to understand what had gone wrong. The closest to being definitive was an independent investigation by Ireland’s Health Service Executive that was commissioned by the hospital where she had died. The investigation was headed by Dr. Sabaratnam Arulkumaran, and in mid-2013 the team delivered its 108-page Final Report, known as the “Arulkumaran report.”
If the medical and other data found in that report are factually correct, we can conclude:
In one sense of the word “blame”, it is not correct to say, “Irish laws may have borne a share of the blame.” But in another sense of the word “blame”, it is correct to say, “Irish laws may have borne a share of the blame.”
Halappanavar did not die because of how what any Irish law actually provided would have been applied given a normally-accurate understanding of her medical condition. But forty-two hours after her admission, she requested an abortion that might have prevented her death, and that abortion was refused due to hospital staff’s misunderstanding of the law and staff’s sub-standard assessment of her medical condition. Since an abortion might have prevented her death, she might have lived had there been abortion on demand.
Since there is no way to safeguard against occasional misunderstandings of law and occasional sub-standard diagnosis, it may be that no anti-abortion law anywhere in the world is foolproof against a charge arising, with some basis, “A woman died with this law in effect who might have lived had there been abortion on demand.” Pro-choicers will certainly level that charge, to great effect, as soon as such an incident occurs in the US.
Let’s outline the report. It mainly implicates “Inadequate assessment and monitoring” in response to signs of the infection that led to the sepsis that eventually killed Savita. Had sepsis or approaching sepsis been diagnosed promptly, that would, among other things, as Dr. Astbury indicated above, have removed the staff’s hesitation to perform an abortion.
(The Wikipedia states “Medical terminations had previously been performed at the University Hospital when complications arose in pregnancy, as it is permitted by Irish law to save the life of the woman.” Sections 58 and 59 of the Offences against the Person Act 1861 constituted very strict anti-abortion legislation, but the 1992 Supreme Court of Ireland ruling on The Attorney General v. X. and Others said –
“The Eighth Amendment does contemplate a situation arising where the protection of the mother’s right to live has to be taken into the balance between the competing rights of both lives, namely the mother’s and the unborn child’s. Abortion. . . . involves the person carrying out the procedure, the mother and the child”
– and surely over the next twenty years there must have been some further court precedents based on that ruling.)
The staff would more likely have performed the abortion, and abortion might, according to the report (though there were those who disagreed) have saved Halappanavar:
“As the infection progresses to sepsis and severe sepsis the risk to the mother increases steeply. Fetal demise is certain in an inevitable miscarriage at 17 weeks where there is spontaneous rupture of the membranes and infection in the uterus. The risks to the mother can be reduced by expediting delivery [bold added]. Continuation of the pregnancy is putting the mother at increasing risk with no potential benefit to mother or fetus.”
Though the report mainly implicates inadequate assessment and monitoring, it lists that as only the first of three key causal factors. Key Causal Factor 2 was “Failure to offer all management options [at least in part referring, of course, to ‘expediting delivery’ above] to a patient experiencing inevitable miscarriage of an early second trimester pregnancy where the risk to the mother increased with time from the time that membranes were ruptured.”
And “Key causal factors are defined . . . as issues that arise during the process of delivering and managing health services that are considered by the investigation team to have had an effect on the eventual adverse outcome.” Taken literally, this means that none of the three alone was to blame, since the others had contributed, and that each, including 2, was considered to definitely have contributed.
Thus Halappanavar might seemingly have lived if not for the failure to offer “expediting delivery”. And why was that not offered?
“. . . passive approaches and delays in aggressive treatment.
This appears to have been either due to the way the law was interpreted in dealing with the case or the lack of appreciation of the increasing risk to the mother and the earlier need for delivery of the fetus. [This could mean, for instance, that the staff believed they could not legally abort without greater certainty that abortion would help, than interpretations of the “X case” ruling actually required.]
When the patient and her husband enquired about the possibility of having a termination, this was not offered or considered possible by the clinical team until the afternoon of the 24th of October due to their assessment of the legal context. . . .
From the time of her admission, up to the morning of the 24th of October – the clinical management plan for the patient centred on the approach to “await events” and to monitor the fetal heart in case an accelerated delivery might be possible once the fetal heart stopped. . . .
Appropriate monitoring and evaluation . . . would likely have lead [sic] to reconsideration of the need to expedite delivery. . . .
Delaying adequate treatment including expediting delivery in a clinical situation where there is prolonged rupture of the membranes and increasing risk to the mother can, on occasion, be fatal. . .
We strongly recommend and advise the clinical professional community, health and social care regulators and the Oireachtas to consider the law including any necessary constitutional change . . .
The investigation team considers that the situation was complicated by the difficulty associated with the application of the law in Ireland relating to the termination of a pregnancy. The investigation team is satisfied that concern about the law, whether clear or not, impacted on the exercise of clinical professional judgement.”
So “the way the law was interpreted” and “concern about the law . . . impacted . . .” may have been a cause for “delays in aggressive treatment”. But the report goes on –
“The investigation team is aware that clinical circumstances can and have arisen in Ireland where a termination of pregnancy is an appropriate and necessary clinical step in the medical treatment and care of a patient”
– and the Wikipedia says, as mentioned above, that “Medical terminations had previously been performed at [that same] University Hospital . . .” – showing that neither the law, if it had operated under normal circumstances, nor the hospital’s traditional understanding of the law had been the problem.
Yet the fact remains – according to the report – that the law may have been a cause of Halappanavar’s death when combined with either medical misdiagnosis or misunderstanding of the law, or both.
Halappanavar died on October 28. By mid-November her husband had taken her body back to India, and he and Savita’s mother had started telling Indian and Irish media about his version of events. He related that in response to Savita’s request – more than one request, he said – for an abortion, the doctor in charge had replied, “unfortunately I cannot. This is a Catholic country, we are bound by the law. We can’t terminate because the fetus is still alive.” The remark went around the world. The doctor denied having said it, but a midwife at the hospital admitted to it. “She said that with hindsight it ‘sounded bad’ and the remark was something she regretted.” Indeed, despite any origins in Catholicism that there may have been for the 8th Amendment, the Offences against the Person Act 1861, or The Attorney General v. X. and Others, there was nothing ostensibly Catholic about them, so the remark had been at best unnecessary.
For a full list of the points made in the report most relevant to Irish law, see the Appendix.
The best article that I know of pushing back against the Arulkumaran report was authored by journalist Caroline Farrow, writing two years after the incident in the Catholic Medical Journal. She argued for the “medical misadventure” conclusion of the original inquest. She re-emphasized the “inadequate assessment and monitoring” causal factor of the report, and took issue with the idea that any understanding or misunderstanding of the law explained the medical staff’s loathness to provide an abortion. She argued that –
“The presence of an infection is a contraindication to surgical intervention. . . .
Conservative management is the preferred clinical approach in cases of spontaneous miscarriage. In the absence of obvious signs of infection, masked by her painkillers, it is not surprising that the medical staff decided that intervention was unnecessary.”
– in spite of the report’s having claimed that there were concerns by the staff about the law, and the report’s not having recorded the application by the staff of any such medical thinking about conservative management.
The Broader Picture
What pro-lifers cannot deny is that even if there had been neither any defect in the law, nor even any adverse consequences of misinterpretation of the law, in Halappanavar’s particular case:
- even the most carefully-written anti-abortion law can cause otherwise-avoidable harm if combined with medical misdiagnosis
- even the most carefully-written anti-abortion law can cause otherwise-avoidable harm if combined with misunderstanding of the law (there will inevitably be some misunderstandings that would not have occurred had there been no pro-life law to understand in the first place)
- 1 and 2 point to kinds of harm that can possibly occur when pro-life laws are in place and their existence leads to accidental effects for which they were not designed. But another kind of harm is still more important and is not only possible but is unavoidable. Some degree of harm to some pregnant women is unavoidable if the laws are to serve their purpose of protecting the life of the unborn. Anti-abortion laws cannot be written with a premise of zero tolerance for adverse consequences on pregnant women. It is just common sense that protecting significant numbers of the unborn will result in some degree of hardship or suffering for many pregnant women.
Unwanted pregnancy is a situation of opposing interests – inherently an awful situation – which means there is an inherent zero-sum element whenever there is an unwanted pregnancy. Thus even when pro-life laws work as they are designed to, when there is no medical misdiagnosis and no misunderstanding of the law, their aspiration to prevent the worst kind of outcome – mass deaths – entails their being structured, within the awful situation of widespread unwanted pregnancy, to prevent the great evil of those deaths by accepting lesser evils.
The typical US pro-life law allows abortion only to preserve the life of the woman, or to avert the “impairment of a major bodily function”. (Implicit in this there seems to be the same principle as in self-defense law: the force applied by the woman in self-defense in a worrisome pregnancy must remain proportionate to the harm she can reasonably expect, and not be disproportionate.) Personally, I would be in favor of further liberalizing these terms, considering a woman’s bodily rights that weigh in the balance against a woman’s right to life. But liberalizing them beyond a point would mean abdicating our human responsibility to save as many as possible of the smallest of our sisters and brothers.
4. Most people haven’t done, and may never do, the necessary thinking to see that an undeveloped human should have the same rights as a developed one. Their gut reactions haven’t yet changed over time under the influence of deep thought. Until they do such thinking, they will always, quite naturally, rise to the defense of one born woman over 100,000 of the unborn (the number estimated to have been saved by Ireland’s 8th Amendment).
I spent so much time on Savita Halappanavar’s case because from it we can learn all the above points.
A new study claims that “In 2 Texas hospitals, state-mandated expectant management of obstetrical complications [legally-mandated opting for delay]. . . . resulted in 57% of patients having a serious maternal morbidity compared with 33% who elected immediate pregnancy interruption under similar clinical circumstances reported in states without such legislation.” Petra Wallenmeyer has pointed out some pertinent problems with this study, but would adjusting for those problems lower the 57% all the way down to 33%? As Wallenmeyer concedes, “carrying a pregnancy as long as you can in conditions like PROM, PPROM, and preeclampsia *can* be more dangerous to the mom’s health.” Moreover, a more thorough study linked to by the new study found that, with both options elective (non-mandated), “Expectant management . . . was associated with a significantly increased risk of maternal morbidity when compared to termination of pregnancy”; we wouldn’t expect outcomes with mandated delay to be any better than in those cases of non-mandated delay.
And sooner or later now post-Dobbs (though hopefully it will be much later), it is sure that a woman will in fact die under circumstances where, as in Halappanavar’s case, she arguably would have lived in the absence of some pro-life law – or even where clearly she would have lived.
According to FiveThirtyEight, more than 10,000 lives were saved in the US in just the first two months after the Dobbs decision. The real figure is likely to be even greater. And as mentioned earlier, Irish pro-lifers estimate that before being repealed, the 8th had saved 100,000 unborn lives over the years.
It seems brutal to quantify in terms of numbers who have died, and to calculate the ratio of unborn lives saved to born sisters of ours harmed, and the degree of harm. But it is the situation that is brutal, and not the examining. Whenever there is an unwanted pregnancy, there is rarely going to be a completely happy outcome, and as mentioned at the outset, there are hundreds of thousands of unwanted pregnancies around the world every day.
(Here I’m arguing from a utilitarian ethical perspective that may be more persuasive than any other with large numbers of the public. I think an argument against legal abortion can be made all the more effectively from a deontological perspective. But in any case a perspective of “moderate deontology” does not ignore utilitarian outcomes, and I think that the argument can be won from any reasonable ethical perspective whose reasonableness includes recognizing that the unborn has interests.)
No matter how carefully written the laws are, no matter how informed by compassion, no matter how good the social safety networks or even outright financial compensation for the burden of carrying the child, no matter how much is required of the man involved, there are some interests that cannot be compensated: at least for many women, there is almost sure to be some physical discomfort and pain that they would not have undergone if they had aborted. And, very rarely, there will be a death.
But there is an assumption or a premise that a human life is very valuable and that sacrificing it without high risk or tremendous compulsion of some other kind is wrong. Can we just abandon our 60,000+ brothers and sisters expected to be saved in the US over the next year? We cannot in a completely carefree way rejoice in our newfound ability to save such lives, but we can’t go back, and shouldn’t go back.
So it seems brutal to start to quantify. But that is what we must do. Pro-life laws mean the lesser of two evils, and to present them that way within a framework of the consistent life ethic is the most rational way to defend them. It is the situation that is brutal – the situation of thousands of children making their debut every day in this country inside the bodies of women who do not want them – and not the examining.
Appendix: full list of the points in the Arulkumaran report most relevant to Irish law
- “The investigation team considers that the situation was complicated by the difficulty associated with the application of the law in Ireland relating to the termination of a pregnancy. The investigation team is satisfied that concern about the law, whether clear or not, impacted on the exercise of clinical professional judgement.”
- “There was a lack of recognition of the gravity of the situation and of the increasing risk to the mother which led to passive approaches and delays in aggressive treatment.
“This appears to have been either due to the way the law was interpreted in dealing with the case or the lack of appreciation of the increasing risk to the mother and the earlier need for delivery of the fetus.”
- “When the patient and her husband enquired about the possibility of having a termination, this was not offered or considered possible by the clinical team until the afternoon of the 24th of October due to their assessment of the legal context. . . .
- “From the time of her admission, up to the morning of the 24th of October – the clinical management plan for the patient centred on the approach to “await events” and to monitor the fetal heart in case an accelerated delivery might be possible once the fetal heart stopped. . . . Appropriate monitoring and evaluation . . . would likely have lead [sic] to reconsideration of the need to expedite delivery. . . .
“Delaying adequate treatment including expediting delivery in a clinical situation where there is prolonged rupture of the membranes and increasing risk to the mother can, on occasion, be fatal. The investigation team is aware that clinical circumstances can and have arisen in Ireland where a termination of pregnancy is an appropriate and necessary clinical step in the medical treatment and care of a patient.
“We strongly recommend and advise the clinical professional community, health and social care regulators and the Oireachtas to consider the law including any necessary constitutional change . . .”
- “There is immediate and urgent requirement for a clear statement of the legal context in which clinical professional judgement can be exercised in the best medical welfare interests of patients. There is a parallel immediate requirement for clear and precise national clinical guidelines. . . We recognise that such guidelines must be consistent with applicable law and that the guidance so urged may require legal change.”
- “O&G Consultant 1 stated that the patient and her husband were emotional and upset when told that a miscarriage was inevitable. The consultant stated that the patient and her husband enquired about the possibility of using medication to induce miscarriage as they indicated that they did not want a protracted waiting time when the outcome of miscarriage, was inevitable.
“At interview, O&G Registrar doctor 2 stated that the plan was to check the fetal heart and that the patient had asked on the 23rd of October about termination.
“O&G Consultant 1 stated that the patient and her husband were advised of Irish law in relation to this. At interview the consultant stated “Under Irish law, if there’s no evidence of risk to the life of the mother, our hands are tied so long as there’s a fetal heart”. The consultant stated that if risk to the mother was to increase a termination would have been possible, but that it would be based on actual risk and not a theoretical risk of infection ‘we can’t predict who is going to get an infection’.”
- “As the infection progresses to sepsis and severe sepsis the risk to the mother increases steeply. Fetal demise is certain in an inevitable miscarriage at 17 weeks where there is spontaneous rupture of the membranes and infection in the uterus. The risks to the mother can be reduced by expediting delivery. Continuation of the pregnancy is putting the mother at increasing risk with no potential benefit to mother or fetus.”
- “Expediting delivery (either medically or surgically as appropriate or feasible, and within the law) at the earliest signs of infection in the uterus is a critical part of management to reduce the risk of progression to sepsis, severe sepsis and septic shock and maternal morbidity and death.”
- “the management plan for the patient was to ‘await events’ and to monitor the fetal heart in case an accelerated delivery might be possible once the fetal heart stopped. The interviewees stated to the investigation team that this was because of their interpretation of the law related to pregnancy termination.”
- “At interview, the consultant indicated that the law is such that:
“‘If there is a threat to the mothers’ life you can terminate. If there is a potential major hazard to the mothers’ life the law is not clear…. There are no guidelines for inevitable miscarriages’
“There is difficulty in interpretation of law in relation to ‘what constitutes a potential major hazard or threat to mother’s life’. This needs clarification. The consultant clearly thought that the risk to the mother had not crossed the point where termination was allowable in Irish law on the morning ward round on the 24th.
“The investigation team considers that [t]here was an apparent over-emphasis on the need not to intervene until the fetal heart stopped together with an under-emphasis on the need to focus appropriate attention on monitoring for and managing the risk of infection and sepsis in the mother.”
- “The consultant stated th[at] (s)he received a call to review the patient at 13.10 hours on the 24th of October. The consultant recalled going to the gynaecology theatre en route to the gynaecology ward to collect a scanner.
- “The interpretation of the law related to lawful termination in Ireland, and particularly the lack of clear clinical guidelines and training is considered to have been a material contributory factor in this regard.”