Bad laws kill.
Bad laws are dangerous. They have serious consequences for innocent people.
A case in point is the Irish law concerning abortion and the death of Savita Halappanavar.
I haven’t written anything about this tragedy because I couldn’t make sense of the press reports. I still can’t figure them out. There is mention of a septic e-coli infection, which so far as my limited medical knowledge goes, would probably be treated by antibiotics and fluids. Everyone seems to agree that Ms Halappanavar requested an abortion and was refused one by what sounds like medical personnel with the statement that “this is a Catholic country.” The other indisputable fact is that Ms Halappanavar died after what could only have been an agonizing period of suffering and lack of good medical care.
I don’t understand how an abortion might have helped her survive an e coli infection. I also don’t understand how she got an e coli infection or why it wasn’t treated appropriately. I’m not, mind you, making judgements here. These are questions for which I do not have answers.
The statement by the medical person that “this is a Catholic country” pulled the Catholic Church into the subsequent public debate about what happened to Ms Halappanavar. A lot of people who sincerely think that the Church hates women were quick to jump in and say “Told ya so!” Others spent a good bit of time trying to defend the Church with explanations that Catholic teaching does not forbid that women be given medical care, including treatment that can end a pregnancy, if the reason for doing so is to not for the direct purpose of killing the baby.
Theologians traded brickbats with outraged humanitarians and nobody understood anybody else. They weren’t speaking the same language and they have such a low opinion of one another that it precludes them trying to speak the same language.
Meanwhile, I kept circling back to the one thing I thought I understood about this tragedy: Somebody wrote a law that caused it.
Irish law isn’t like American law, so it’s hard for me to understand it or to know if I’ve gotten the right facts. I’ve spent some time reading the Irish Constitution, perusing Irish court cases, and checking statutes concerning abortion from centuries past. I still don’t really know for sure what it means, and I think that is the problem. I don’t think anyone knows what Irish law concerning abortion means.
The Irish Constitution makes a statement concerning abortion which reads more like a hatched up attempt to be theological than an honest try at creating a law that would lead to functional civil governance. It is more a statement of intent than anything else. I’ve been writing laws for 17 years, and I can tell you I don’t know how this thing is enforced or even what, exactly, it means.
The only part of it that actually is clear is the part that grants women the right to travel overseas to obtain an abortion and the right to give information about an abortion. Subsequent court cases have gone back and forth with these items until they’ve become convoluted in practice.
Here’s what the Irish Constitution says. I didn’t believe that this was all of Irish law on this matter at first, which is why I did the research. I’m going to set the worst part of it in bold face. Remember that the emphases are mine.
Ireland’s restriction on abortion is found in Article 40.3.3 of their Constitution. The latest amended version states:
The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.
This subsection shall not limit freedom to travel between the State and another state.
This subsection shall not limit freedom to obtain or make available, in the State, subject to such conditions as may be laid down by law, information relating to services lawfully available in another state. Ir. Const., 1937, art 40.3.3
I don’t know if what I’m going to say will make sense to the people reading this, but that is not a law. It doesn’t say anything. Since it is in the Irish Constitution, I had assumed that there were further statutes that made sense of it. But I couldn’t find them and neither could the people who helped me research this. Read that paragraph I put in bold carefully. Does it tell anyone in the medical profession what they may or may not do?
There may be (hopefully there are) legal definitions of the terms this statement uses in other places in Irish law. There may be (hopefully there are) codifications and further statutes making sense of this. All I know is that when I researched Irish abortion law and case law about giving information about abortion and going to other states to obtain an abortion, this is what I was given.
How, based on this, is a doctor supposed to know what they may or may not do under Irish law to save a pregnant woman’s life? For that matter, how will they know what they may do to save the baby’s life? It ties their hands with confusion in either instance.
How are doctors supposed to “respect” the “equal right to life” of both the baby and the mother? What, in legal terms and in medical terms does “respect” mean? For that matter, what do “right to life” and “vindicate” mean?
I’m not nit-picking. Laws are built with words and words have meanings. For laws to be enforceable, the definitions of their words must be public and agreed upon.
Unless there are further codifications I don’t know about, or these things are legal terms of art in Ireland, this law is meaningless. It’s a statement. It’s a little speech. It gives some sort of vague intent. But it has no meaning.
That makes it a set-up for selective prosecution. By that I mean that if this truly is all there is to it, this law puts the entire decision as to what is or is not acceptable medical practice in dire situations concerning a pregnant woman in the hands of the prosecutor. Since this law means pretty much what anybody reading it wants it to mean, prosecutors can use it to punish doctors or let them off, depending on whatever motivation the prosecutor might have.
I have no idea what, specifically, the medical person meant with the comment, “this is a Catholic country.” For all I know, it may be have been some sort of personal religious statement. Or, it may have meant something else.
But the law reads like Irish politicians bent too far in trying to put theology into statute. Theology is, by its nature, vague and hypothetical. Law must be, by it’s nature, definite and immediately applicable to real-world situations.
I have looked at the Catholic Church’s teachings on this and come to the conclusion that I can not write a law that incorporates Catholic teaching directly into the statute. A law which allows abortion to save the life of the mother has to say just that. I am perfectly willing to stand on that opinion in the face of what comes.
If someone wants to argue with me about it, my answer has been and will continue to be the same. Give me the language. If you can come up with the language, I’ll support it. But I can’t figure out how to write a law any other way than with direct and clear language that has universally understood meaning.
I am a determined advocate for the Church’s right to be the Church without government interference. But I also believe that laws are not theology and, while theology can and should inform good law, the two do not mix in a direct way.
What I mean by that is that I don’t plan to copy the Catechism directly into the statutes and I will not vote for bills that attempt to do so. A law that says “Thou shalt not kill” is a vague, unenforceable statute. Murder is a legal term with definitions, penalties and clear-cut understanding both by the courts and by law enforcement. My opinion that murder should be a crime punishable by law is clearly informed by “Thou shalt not kill,” but you won’t see me putting those words into statute.
We can not write statutes concerning abortion any less carefully than we write any other statute. There is no place in law for statements of intent that are not followed by clear-cut statutory language afterwards. I thought at first that since this is the Irish Constitution there might be statutory language out there amplifying it. There may be such language, but I couldn’t find it. All I found was case law.
I’m going to close down this little discussion of the legal situation that I think led to the tragic death of Savita Halappanavar with a strong caveat. I went through what was available to me concerning Irish law on abortion. I also had expert help in my search. But Ireland is another country and I am not familiar with how they do things. What I’m trying to say is, I may be wrong. There may be better laws out there in Ireland that I didn’t find. If I am wrong, just tell me, and I’ll re-write this.
However, I do feel that this tragic death is a problem with Irish law in some way. Bad laws kill people. Writing a good law can take courage. I am overstepping and I know it when I say this, but I think Irish politicians need to re-think their laws concerning abortion. I am not advocating that they legalize abortion. Rather, I think they should write their laws in such a way that it’s possible for people to understand and follow them.
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