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Real and substantial

Michael McDowell, a former Irish Attorney-General and Minister for Justice, applies some actual legal expertise (sorry, Brendan) to the question of risk to the mother’s life and Irish abortion law.

The phrase “established as a matter of probability that there was a real and substantial risk to the life of the mother” is not without difficulty, as the evidence at the Galway inquest is demonstrating.

In my view, the phrase “real and substantial risk” does not mean that the mother is more likely than not to die.

It’s pretty staggering that lots of people in Ireland apparently think it does mean that and that that’s the standard and that if the risk is 50% then it’s just tough shit for the woman.

If, as may be unlikely, it could be established that a pregnant mother found herself in a condition that, say, three women out of 10 women in the same condition lost their lives, no one could doubt but that there was a real and substantial risk to her life, even if the statistical odds favoured her survival.

In my view, the requirement that the “real and substantial risk” must be established as a matter of probability simply means that there is no legal requirement to establish “beyond reasonable doubt” that the risk exists – not that the risk itself is quantified at more than 50 per cent.

In other words, in my view, what is legally required is that the doctors making a lawful decision to terminate a pregnancy in a manner that will end the life of the unborn must establish two things:

(a) as a matter of probability there is a risk to the life of the mother if the pregnancy is not terminated; and

(b) that the identified risk is a real and substantial risk, as distinct from a very small risk, that the mother will die.

Note that even on that interpretation the Irish Supreme Court ruled that women should be forced to take that very small risk.

 

Comments

  1. says

    I guess we should stop treating women with breastcancer as seriously ill. Because with current treatment the risk of death is about 15%. That’s not a substantial risk, is it?
    Oh, wait, what do you mean? 15% mean that you don’t die just 15%, but that 15 out of 100 women die? Doesn’t sound that good then, does it?

    Note that even on that interpretation the Irish Supreme Court ruled that women should be forced to take that very small risk.

    Everything besides full autonomy and abortion access forces women take that risk. Once you’re pregnant you are at a higher risk of death than you were before, and that’s with qualified 1st world medicine, the question is how big a risk do you, personally, accept for yourself?

  2. says

    “It’s pretty staggering that lots of people in Ireland apparently think [the phrase “real and substantial risk” means that the mother is more likely than not to die] and that that’s the standard and that if the risk is 50% then it’s just tough shit for the woman.”

    It wouldn’t bother me if lots of people thought that, as long as they had nothing to do with maternity hospitals. Taxi drivers can hold any daft notions they like. The really terrifying thing is that that seems to be exactly how Dr Katherine Astbury understands the law. At the inquest, she explicitly referred to a 51% risk. That shocked me, but I thought, well she’s in a difficult position. Her patient died and she has to explain why she didn’t take a different course of action. Blame the law.

    But then Dr Susan Knowles testified. She wasn’t involved in Savita’s case; she was called as an expert witness. Yet she, too, seems to think that a termination only became legally possible on Wednesday, when the risk was getting to be very serious indeed. So I have to ask, is that the conventional wisdom? Christ on a bicycle.

    I think Michael McDowell must have had the same reaction as me. In general I’m not a fan of his, but I’m deeply grateful that he has made the effort to introduce at least a little sanity into this discussion.

    Hell, I might even vote for him if he goes back into politics.

  3. alai says

    This is in reference to this piece in today’s “Indo”, I gather.

    I feel to compelled to start off by stating my overall assessment of Michael McDowell. He’s a spectacularly failed politician; one of the most prominent ideologues from the Fianna Fail/Progressive Democrats coalition that did the heavy lifting in causing Ireland’s economy to massively tank in the manner it’s doing at present; and a generally terrible person. (Note to US readers: if the party name “Progressive Democrats” conjures up a certain image… it’s almost certainly exactly the wrong one. Think more “Hibernian Libertarian Party”, with the proviso that they never seemed to actually ever to get round to ever doing anything “socially liberal” (as often seems to be the case with loudly-professing “libertarians”, come to that.)

    Nor does this piece impress me with its “expertise”. It’s essentially just a long-winded and portentous exercise in dictionary-defining “‘significant’ means ‘not very small’”, without any actual legal insight added to that whatsoever. Well, whoda thunk it. It’s not like “very small” is exactly a model of precision in itself. (10%? 0.1%? 0.001%? …)

    Having said which… I agree with him. That’s the natural, rational, and generally sane interpretation of “significant”, and I don’t see how it’d be possible to go further than that without primary legislation. And it wouldn’t be possible to eliminate the “not real-and-significant” residual risk that Ophelia Benson refers to without a constitutional referendum, either entirely reversing the eight amendment, or heavily qualifying its effect.

    Giliell, that’s pretty much the line of argument used by opponents of abortion here. If you allow for abortion on “risk of death”, “risk to health”, or on (as they would put it) “threat of suicide”, that’s immediately equated with “abortion on demand”. That’s “the way Britain does it”, which is veritable touchstone for “all things wrong” for Irish conservative Catholic opinion. (And much Irish opinion in general, on a whole range of issues.)

  4. Jeremy Shaffer says

    I wonder what the people that say a 3 in 10 risk to the mother’s health is not substantial enough would say about the risk from a woman whose pregnancy had a 3 in 10 chance of miscarrying because either she refused to take certain treatments or the doctors withheld them?

  5. alai says

    As to whether lots of people in Ireland in Ireland think this: I really am left wondering. I haven’t heard lots of people saying so… but equally, I haven’t heard lots of people saying otherwise, either. So kudos to MMcD for breaking the stunned silence, the veil of creative (or rather, ultimately destructive) ambiguity, or whatever exactly it is we have have going on at present.

    I forgot to add that MMcD is not a direction one should be looking to for health care access, for abortion or otherwise. His party are the doyens of “tiered healthcare”, with his former party leader presiding over a shambolic series of “arm’s length” and “public-private partnership” initiatives designed to ensure lack of political accountability, feather-bedding the private operators, and prioritising those with the ability to pay. (Though relative to the US model, perhaps still relatively “socialised”.) I don’t think I’d be voting for him if he were running for dog catcher. But that’s more than enough about him.

    Incidentally, the piece seems to be going out of its way not to be seen to be offering an opinion that an earlier termination should have been performed. He still isn’t quantifying “not very small”, and the doctors aren’t quantifying the risk as they assessed it, beyond implying that it went from “little to none” to “huge” in the space of about two hours. Of course, it’s also correct to point out the difficulties of determining the risks in an uncertain, time-critical clinical situation.

  6. says

    alai

    Giliell, that’s pretty much the line of argument used by opponents of abortion here. If you allow for abortion on “risk of death”, “risk to health”, or on (as they would put it) “threat of suicide”, that’s immediately equated with “abortion on demand”. That’s “the way Britain does it”, which is veritable touchstone for “all things wrong” for Irish conservative Catholic opinion. (And much Irish opinion in general, on a whole range of issues.

    Good!
    Let them own up to it. Drive them to the light and make them say aloud that they are totally OK with the death of Savita Halapavannar because they would rather have women dying than allowing them to have abortions. Force them to show the world their ugly face.
    I was a young naive kid when I lived in Ireland.
    Sure I knew I’d have to get home in case I needed an abortion because being pregnant really wasn’t something I wanted back then. Home where I can hardly get a legal abortion but at least one that isn’t prosecuted during the first 12 weeks.
    But I never realized that I was at risk of bleeding to death from an ectopic pregnancy or something like that.
    And here’s the thing about “real and substantial risks”: That risk is so real and substantial to me that I will not return to Ireland until they legislate for X or I get infertile, no matter how much I miss the country I called home for a while.

  7. karmacat says

    It is appalling that these people have reduced a woman with hopes, dreams, intelligence to statistics. The fetus has become more real than the mother. A heartbeat to these people is more important than the woman with a fully developed brain, personality, emotions….

  8. iknklast says

    Real and substantial can be so hard to define. My students are stunned to find out that the EPA considers 1 in one million a substantial risk – until I explain to them what that means for a society of 300 million people, and that at some point, that 1 could be them. Personally, I like that 1 in 1 million standard much better than that 3 in 10 standard. It isn’t always achievable, but it at least looks for maximum safety.

    But I think this point should be irrelevant, because I don’t think a woman’s right to terminate a pregnancy should hinge on whether her life is threatened by that pregnancy. It should be her choice and hers alone, even in a low-risk (since there are no no-risk) pregnancy arising from fully consensual sex that the woman enjoyed with every fiber of her being. That’s the only standard that fits with true human rights and dignity for women.

  9. notsont says

    One in a million on an event that happens once is a far different risk than one in a million that happens millions of times a day. I disagree that “substantial risk” is hard to quantify, average people do it every single day. Every time I buckle my seat belt I am trying to mitigate a very tiny risk, why? Because when there is ZERO reason to take a risk, even the smallest risk becomes unacceptable when the potential loss is very high.

  10. says

    More to the point, though, is actually driving with caution. Driving is the one area which makes most of our other thinking about risk look particularly absurd. We take a fairly large risk of injuring or killing other people every time we get behind the wheel of a car, and people mostly don’t keep that in mind very much. If there’s asbestos, push the panic button, but speeding and tailgating and changing lanes without looking, oh well that’s just normal.

  11. alai says

    I must apologise for transposing “significant” for “substantial” in my comment, several times. I’m not sure if either term has an effective legal definition for these purposes, but I did see a comment elsewhere contrasting the two, which is when I realized my error. (In US law, in some contexts, seemingly a “substantial” risk is held to be higher than a “significant” risk.)

    Giliell and iknklast, I broadly agree. However, I have my own “51% rule”: given an even very modestly progressive measure that will command majority popular support, I’ll take it, rather than holding out for a maximalist endpoint. Polling actually indicates very healthy levels of support for various measures beyond “X”, so I don’t think the current legislative process will be the end of the matter, but it seems likely to be a fraught process even accomplishing that much, and anything much beyond it will require a constitutional referendum, for which there’s currently no political will whatsoever. It won’t be quick.

    Just one further point about Michael McDowell: towards the end of his tenure as attorney general in 2002, and shortly before his becoming minister for justice later that year, Ireland held yet another constitutional referendum on abortion. This would have put some terminations on a statutory basis, but would haveremoved any right to an abortion in cases of suicidal intention, which was the impetus of the whole process. As MoJ he introduced no measure to give effect to give effect to the X Case ruling.

  12. says

    alai

    Giliell and iknklast, I broadly agree. However, I have my own “51% rule”: given an even very modestly progressive measure that will command majority popular support, I’ll take it, rather than holding out for a maximalist endpoint.

    You need both.
    I am not a fan of “saying all or nothing and then going for nothing”, especially if that means that other people have to take risks. But I am also very aware that I need to fight for the “all” option nevertheless. Even if you’ll only ever get 90% of what you aim for, 90% of the 100% you fought for are still way more than 90% of the 90% you fought for as “realistic”.

  13. alai says

    I make that 81%? I’d take that for starters, if it were in prospect. If only…

    I’m not for a moment saying Ireland (or indeed, the rest of the world, yelling at Ireland with just in cause) achieve limited gains, and then “settle”. But there are things that can be done now, and should be done, without best being the enemy of better, and without handing the bishops on the picket lines “liberal abortion regime!” talking points.

    If we wait for the eight amendment to be reversed, after an initial period of the “watchful waiting” being somewhat more watchful, at least, I fear more Savitas.

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