By Anna Carnegie, Rachel Roth, Aideen O’Shaughnessy and Lorraine Grimes 

On April 1st, the review into the operation of the Health (Termination of Pregnancy) Act 2018 closed for public submissions. One of the first questions the online consultation asked its respondents to consider was, “to what extent do you agree that the Act has achieved what it set out to do?” As activists who have been working in the abortion rights space for years – including through the passage of the legislation in 2018 – this question gave us much pause for thought.

We believe that the question of what exactly the Health Act sets out to do merits further consideration. Taken at face value, the premise of the Act is to expand access to abortion. This is certainly the rhetoric we heard from Government actors when the law was drafted. The proposed legislation would make a reality what the people voted for when we overwhelmingly repealed the 8th amendment on May 25th, 2018.

On further examination, however, the legislation seems intent on limiting provision at every turn. This is evident in the strict 12-week time-limit, measured by the person’s last menstrual period – which in actuality is less than 10 weeks of pregnancy. Juxtaposed with this is the inclusion of a mandatory 72 hour waiting period, which is against medical best practice and operates from the patronising assumption that people seeking abortion are not competent decision-makers. These clauses, when taken together, present an interesting conundrum: the State wants people to get an abortion within the earliest window possible but yet is intent on making them wait? 

The limiting provisions of the Act extend to the criminalisation of medical practitioners who tread outside the narrow confines of this highly restrictive law. This creates a chilling effect, where potential providers interpret the law with overt caution for fear of prosecution. This is coupled with vague eligibility clauses for accessing abortion after 12 weeks. For example, where there is a risk to the health of the pregnant person or in cases of foetal anomaly. In other words, the very cases which compelled many to vote for repeal. The abstract, punitive framing of the law leaves many abortion-seekers abandoned once again. Moreover, the Act permits medics to refuse care and does not set limits on timeframes for referral onto another provider. This creates opportunities for bad actors to operate within the system and deliberately delay access to care. 

The intention of the Act – and the clinical guidelines which accompany it – seems to be to provide abortion only in a very limited and sanitised set of circumstances and to ignore or discriminate against those whose experiences fall outside of some predetermined yet unspoken definition of ‘good’ abortion. Reading between the lines, the Health Act only provides for ‘good’ abortions – where the person realises they are pregnant almost immediately and seeks care well before the 12-week cut-off point. It provides abortion outside this very contracted timeline only for those whose story is deemed sufficiently ‘tragic’, for those who have suffered ‘enough’ to be deemed worthy of care. 

Writing a law framed around ‘good’ abortion ignores the complexities and complications inherent in the bodies and lives of those who the legislation was supposed to serve. 

Take the person whose medical abortion fails, who misses the window for accessing abortion within the confines of the law and now must make the trip to England. Take the person whose pregnancy is diagnosed with a complex and perhaps fatal foetal anomaly but one where two doctors cannot confirm that the foetus will die before being born or within 28 days of birth – and not one day more. Which, as most medics will tell you, is almost impossible to quantify. 

These aren’t fictional cases. They are borne of the realities of those who have tried to navigate abortion in Ireland since 2019. Research from the Abortion Rights Campaign and data from the Abortion Support Network found that, almost four years after the Irish public voted definitively to provide healthcare at home, hundreds of Irish residents continue to travel overseas to access abortion services because of precisely these situations. Is the continued exile and exportation of Irish abortion-seekers to England and elsewhere really what we voted for in 2018?

Sadly these cases don’t come as a surprise for the many activists, academics and others who advocated against the imposition of the problematic clauses outlined above in 2018. Who implored the government to examine the wealth of evidence which argued strongly against criminalisation, waiting periods and strict time limits. Instead, we were fed vague platitudes about how exceptions would be made in certain cases. For example, then Minister for Health Simon Harris said during debate in the Oireachtas that a doctor could use ‘clinical discretion’ to waive the mandatory wait in the case of an individual experiencing coercive control or interpersonal violence. However, nothing in the law or clinical guidance mentions this scenario or gives any reassurance to doctors that they may use their judgment. Such vague promises do not align with a law intent on creating a culture of caution and fear among providers. We were told that certain provisions had to be retained on the advice of the Attorney General. According to Harris, it was “important that the termination of pregnancy remains illegal outside the circumstances in which it is legal.” Neither we nor the Irish public at large were privy to said advice and, as such, were denied the opportunity to challenge or question it. 

Not only is the Act incompatible with international standards of patient care, it directly contradicts the will of the people in 2018. When asked the reason they voted yes, it wasn’t because they were deeply tied to the provisions of the Draft Heads of Bill (a rationale quoted frequently for why provisions such as the mandatory waiting period needed to be included in the final Act). No, for most, the rationale for voting yes was much more fundamental than that. It was to put the choice where it belonged: in the hands of the pregnant person. 

If the intention of the Act was to align with this – with what the people actually voted for – it would look very different. In fact, it probably wouldn’t exist at all. Instead, the State would recognise that abortion should be provided, not as a matter of law, much less a matter of criminal law, but as a healthcare service like any other.