Law is a barrier blocking abortion access says NWCI

Section 7 of the Health (Regulation of Termination of Pregnancy) Act 2018 requires the Minister for Health to carry out a review of the operation of the act "not later than three years after the commencement of this section".

In order to gauge reaction to the current legislation from both sides of the abortion divide – and to hear their perspectives regarding the three-year review that is currently taking place – the Gazette invited Orla O'Connor (Director of the National Women's Council) and Eilís Mulroy (Chief Executive Officer of the Pro Life Campaign) to submit their views.

How do they feel about the review, what legislative changes are they seeking to the current legislation, and what's working and what's not?

Orla O'Connor (Director of the National Women's Council) argues that the current review highlights barriers, such as criminalization and challenges in access to care post-12 weeks

Four years ago, Ireland voted overwhelmingly in favor of abortion access. It was a generation-defining vote and the message was clear: all women should be able to receive care in Ireland and, with the support of their doctors, make decisions regarding their health.

The resounding victory for Repeal was the culmination of years of campaigning by the National Women's Council (NWC), alongside so many others working tirelessly in the civil society space. At last, it was a clear statement that no woman should be forced abroad for basic healthcare, and that the stigma that surrounds women's reproductive and sexual health must be challenged.

However, while constitutional change has enabled some access to care in Ireland, and this is to be celebrated, there is much unfinished business. We urgently need improved geographical coverage of abortion services.

Just one in ten GPs are providing abortion care in the community and only 11 of our 19 maternity hospitals provide full services in line with the law. Outside of our cities, the picture is poor, with half of all counties having fewer than ten GPs offering the service. (Data shared with NWC by the HSE in March 2022.)

However, a thorough review of the "operation of the act" as set out in section 1.7 requires recognizing and addressing not only aspects of current provision, but also the elements of the legal framework that jeopardize the health and welfare of service users.

The National Women's Council, together with partners in our Abortion Working Group (AWG), collectively submitted to the ongoing review, because it is clear that significant legal changes and practical improvements are required if the Health (Regulation of Termination of Pregnancy) Act is to guarantee equitable, accessible, and legal abortion for all women and pregnant people who need it.

Our AWG is made up of a national network of over 20 civil society organizations and healthcare providers, including groups such as Lawyers for Choice, Amnesty International, START Doctors, Disabled Women Ireland and Termination for Medical Reasons.

Our group is hugely diverse, but we all have one thing in common, a belief that our abortion law is failing women and pregnant people, and does not honor the spirit of Repeal.

Series of obstacles

From listening to women, we can see that, instead of creating an enabling legal framework, the law acts as a barrier, creating a series of obstacles that impede access to abortion, and disproportionately affects the most marginalized.

Legal barriers include a three-day mandatory wait, which delays access to time-sensitive healthcare, and a rigid 12-week gestational limit for abortion on request.

There is narrow grounds-based access after 12 weeks; only in the cases of serious harm to maternal health or life, or fatal fetal anomalies, will abortion be provided.

Rigid legal frameworks like this do not allow for the complexity of private personal circumstances, and are in direct conflict with the World Health Organisation's Abortion Care Guideline.

These underline that "states should take positive steps to secure an enabling regulatory and policy environment that will ensure the universal availability, accessibility, acceptability and quality of abortion and post-abortion care". (Abortion Care Guideline, Box 2.1 p21. WHO (2022).)

The WHO recommends removal of mandatory waiting periods, recognizing that they "demean women as competent decision-makers". We firmly agree with this view. The WHO also recommends against laws that prohibit abortion based on gestational age limit and that restrict abortion by grounds.

Based on the clinical evidence and international human-rights standards, the WHO advocates that abortion be fully integrated into reproductive healthcare systems and should be available at the request of the woman, girl or other pregnant person. This is not the case in Ireland.

The lived reality of Ireland's failure to comply with these WHO's recommendations is clear: women continue to be forced abroad for healthcare they should receive at home. Since 2019, some 775 Irish residents have been forced to travel to the UK and endure the stress and trauma that this entails. Many others will have had no choice but to take abortion pills without clinical support or oversight.

The vast majority of travel is due to Ireland's restrictive 12-week limit, with travel due to the 28-day mortality clause for fatal fetal anomalies now accounting for half of all those seeking care in the UK.

Legal barriers

This suggests that there are significant problems with access to abortion care in Ireland post-12 weeks, and particularly on the grounds of fatal fetal anomaly, as laid out in section 11 of the Health Act. Indeed, the UN Human Rights Committee has expressed concern over the restrictive nature of this section and recently recommended that Ireland "take the necessary steps to remove existing barriers and ensure women with fetal abnormality conditions have adequate access to abortion services". (Concluding Observations on the Fifth Periodic Report of Ireland, p6. UN Human Rights Committee (2022).)

It is critical that the Government uses this ongoing Review to recognize these various legal barriers. Our law must be re-configured to ensure doctors can provide care based on their clinical judgment and professional expertise, taking account of patient preference.

In addition to addressing the medically unnecessary three-day wait, the 12-week gestational limit, and the narrow qualifying criteria for care post 12-weeks, this overarching objective will also necessitate repeal of section 23 to allow for full decriminalization of abortion.

Currently, anyone who aids or abets abortion outside the specific terms of the act is liable for criminal prosecution, with a prison sentence of up to 14 years. This means health professionals, under the threat of prosecution, are forced to police themselves, determining when and whether the statutory criteria for access to care have been met.

Criminal framework

Using a criminal framework like this is not normative health policy and sets abortion apart from all other aspects of healthcare. The WHO also strongly recommends decriminalization to remove the chilling effect on healthcare providers.

This was echoed by the European Parliament on 9 June 2022 when it adopted a new resolution urging "member states to decriminalize abortion and remove and combat obstacles to safe and legal abortion and access to sexual and reproductive healthcare and services". (European Parliament resolution of 9 June 2022 on global threats to abortion rights: the possible overturning of abortion rights in the US by the Supreme Court (2022/2665(RSP).)

The Irish public agrees – a nationally representative poll from February 2022 found that 71% supported decriminalisation, agreeing that abortion should be treated like any other medical procedure and should not be a matter for criminal law. (Opinions Market Research Omnibus February 2022, base: n=863, margin of error: +/-3.34%, see: NWC, 'Public opinion of abortion shows 80% agree no woman should have to travel abroad for abortion care' – press release, 15 March 2022.)

With this Review, we have reached a critical juncture towards realizing the reproductive rights of all: it is a unique and essential opportunity to achieve better care for women and pregnant people.

The robust evidence-gathering process undertaken in this Review is certain to highlight barriers such as criminalisation, the three day-wait, and the challenges in access to care post-12 weeks. In the coming months, we will need to see significant political leadership to enable evidence-led legislative reform.

The National Women's Council's new report  Every Woman: Towards Reproductive Health, Choice and Care for All , is available at nwci.ie.

Orla O'Connor is Director of the National Women's Council.

To read the alternative view, see:

https://www.lawsociety.ie/gazette/in-depth/abortion-changes-are-in-direct-breach-of-government-promises