Legal abortion needs to become more accessible

The Termination of Pregnancy Act 2018 should be amended to include guiding principles derived from international human rights law.

When abortion care became available in Ireland in 2019, it revolutionised reproductive healthcare. More than three years later, the provision of abortion in practice has created a body of knowledge that was simply not available when the legal framework for termination of pregnancy was drafted. 

The review of the Termination of Pregnancy Act 2018 will illuminate the interaction of the law with the operation of abortion services. It will highlight the ways in which the law impedes access for some who need it and looms over providers in ways that set abortion care apart from all other essential healthcare services. 

Transformative

The 2018 Act has been transformative for reproductive rights in Ireland. The guarantee of public funding of abortion care conveys the unambiguous societal message that access to termination of pregnancy is now an established social good. The law provides for access to abortion on request; no-one who seeks early abortion care must explain or justify their decision about their pregnancy. We know from the clients of the Irish Family Planning Association (IFPA) how important this is to those accessing care. 

The model of care is working well for those who can access it. The availability of broadly accessible services within mainstream local healthcare, and without cost, greatly reduces the stress of unintended pregnancy and helps reduce the stigma associated with abortion. Specialist pregnancy counselling and a 24/7 medical helpline provide critical supports at no cost to women. Moreover, the integration of telemedicine into the model of care has broadened women’s choices and their access to essential, time-sensitive healthcare. 

Problematic 

But the Act is deeply problematic. It is based on an outline of legislation published in March 2018, before the extent of public support for repeal of the Eighth Amendment was clear. That outline was based on the Protection of Life During Pregnancy Act 2013, the restrictive statute that gave legislative effect to the Eighth Amendment abortion ban. Under section 23 of the 2018 Act, abortion is subject to a maximum sentence on conviction of 14 years in prison in all but defined circumstances. 

Criminalisation harms. It stigmatises and relegates abortion to the margins of healthcare. As the European Court of Human Rights recognised in A, B, and C v Ireland, criminal laws – even when they are not aggressively enforced – create a ‘chilling effect’ on healthcare professionals. While section 23 does not apply to pregnant people, the threat of criminal sanctions fosters stigma towards providers of abortion care and discourages others from its provision. 

Furthermore, while the right of healthcare practitioners to deny care on grounds of individual beliefs is recognised through a conscientious objection provision, this conveys, offensively, that only those who refuse care, and not those who provide it or access it, act with conscience.

Other aspects of the Act are restrictive and demeaning. The IFPA knows from our services that most women and girls who present for abortion care have considered their personal circumstances, assessed the supports available to them and made the decision that parenting is not the right choice for them at this time. Yet the law imposes a mandatory waiting period of three days. In fact, while the Act purports to make abortion available up to 12 weeks of pregnancy, the waiting period reduces this to only 11-and-a-half weeks in practice.

To force every person who needs an early abortion to endure this delay, for no medical reason, is insulting. It implies distrust of their capacity to make rational decisions in pregnancy. It forces doctors to impose a delay on patients that is unrelated to their health and can push them past the gestational limit for access to abortion. 

Most women and girls living in Ireland avail of abortion care well before 12 weeks of pregnancy. But crisis in pregnancy cannot be neatly confined to the first trimester. The IFPA’s experience is that the burdens of the 12-week limit disproportionately affect the young, the vulnerable, the marginalised, and disadvantaged. This is an unacceptable inequity. 

After 12 weeks, availability of abortion is restricted to two grounds: Risk to the life or of “serious harm” to the pregnant woman’s health, and fatal foetal anomaly. Only approximately 20 terminations were carried out in Ireland in each of 2019 and 2020 because of risk to life or on the grounds of health. The ground of fatal foetal anomaly forces doctors to make a complex diagnosis according to a legal definition. This callous bright line excludes many cases of serious foetal anomaly and forces women and couples whose pregnancies do not meet the eligibility threshold to travel abroad for care. We know from the IFPA’s specialist pregnancy counselling service how traumatising it is to be excluded from access to termination services in Ireland. It is unacceptable that Ireland continues to rely on the presumed safety valve of the over-burdened UK health system. 

As well as the restrictions of the Act, other barriers to abortion access must be remedied. Glaring geographical disparities in community and hospital provision exist, meaning some women are denied locally accessible care. There is low availability of surgical abortion. In addition, because of narrow grounds for hospital referral, most women are offered one method only: Home-self-management of medical abortion. 

Many pregnant women, for example those in abusive relationships, or who share living spaces with others, or live in direct provision centres or are homeless, don’t have a suitable home environment to self-manage an early medical abortion. Action is urgently needed to address these inequities. This is a matter of social justice. 

WHO and National Maternity Hospital

In March this year, the World Health Organisation published a revised abortion care guideline. The guideline calls for decriminalisation of abortion in all circumstances. It recommends that instead of mandatory waiting periods, narrow eligibility criteria, and gestational limits in laws, access to abortion should be on request. This would align service availability with the best interests of women and girls who need abortion care, rather than the restrictions imposed by law, as is currently the case. 

To force every person who needs an early abortion to endure this delay, for no medical reason, is insulting

The current legal framework has delivered the first phase of abortion care in Ireland. But its stigmatising and exclusionary scaffolding is built on the foundations of the Eighth Amendment. This skews the operation of services out of alignment with reproductive rights and unacceptably encroaches on healthcare provision. There is ample evidence for the review of the need for legislative reform to better meet the needs of women and girls. Equity and respect for reproductive rights are critical to the future of the Irish abortion service: The 2018 Act should be amended to include guiding principles derived from international human rights law. 

As legislatures across the United States prepare to eviscerate abortion services if Roe v Wade is overturned, securing abortion rights and building a sustainable national abortion service must be Government priorities following the review. At home, the location and values of the National Maternity Hospital (NMH) are once again in the spotlight. The role of the NMH as a critical pillar of abortion care must be secured in its new location. But it is one hospital: A new infrastructure for rights-based abortion care is needed. 

A faculty of reproductive health and rights, perhaps based at the NMH, could provide leadership and vision for the future of abortion care in Ireland and inspiration for reproductive healthcare globally.

Ms Maeve Taylor, Director Of Advocacy And Communications, Irish Family Planning Association.