Since the start of January lawful abortion has been available in Ireland. The passage of the Health (Regulation of Termination of Pregnancy) Act 2018 has fundamentally changed the landscape of reproductive healthcare provision in Ireland, but much has stayed the same. In particular, the paradigm through which abortion is regulated is still primarily the criminal law; a continuity in approach that greatly restricts the impact of this new law.
Importantly, it is no longer a crime for a pregnant person to have an abortion, even if she does so outside of the provisions of the Act. This means that self-managed abortion is no longer an offence, releasing women seeking to end pregnancies in Ireland from the criminal law to a far greater extent than is true in the UK and Northern Ireland, for example.
However, while the woman is decriminalized, assistance is not. Anyone who ‘aids, abets, counsels or procures’ a woman to have an abortion outside the provisions of the Act commits an offence, even if they do so with her consent. This criminalization of assistance goes well beyond the mischief the law sought to address (coerced or non-consensual abortion), and undermines long-standing practices of feminist solidarity, such as provision of abortion medication, that have enabled women in Ireland and elsewhere to navigate some of the sharpest edges of abortion restrictions. In the new landscape of Irish abortion law that criminalization seems meant in earnest and it has already had an impact: Need Abortion Ireland has announced the cessation of its services, largely motivated by concerns about prosecution.
Doctors are also criminalized. Providing abortion outside the Act is a serious offence, and while practitioners can defend themselves by establishing they acted in good faith (i.e. believed the ‘case’ fell inside the exemptions provided by the Act), we have already seen that this criminalization is leading to hyper-cautious interpretation and implementation of the law. This is not aided by the Department of Health, which has articulated and insisted on limiting interpretations. So, for example, abortion is lawful up to 12 weeks without restriction as to reason, but this has been interpreted to mean that the termination must be completed within 12 weeks. It must, then, be started a few days beforehand to minimize any risk of incompleteness, and as abortions after 9 weeks are to be provided in hospitals only this raises serious questions about how and whether resources can be managed and applied in a way that makes this provision workable for women throughout the 12-week period. This is just one way in which fears of criminal liability seem to be working to push the 12-week limit back, exacerbated by the statutory 3-day mandatory waiting period. After 12 weeks abortion is available only in very limited circumstances (risk to life, serious risk to health, and diagnosis of a fatal anomaly in the foetus) and only until foetal viability (which, as defined in the statute, is never reached in cases of fatal anomaly); all else is a serious crime.
A further complication for medical practitioners relates to pregnant people from Northern Ireland seeking abortion in Ireland. If a doctor gives such a patient the second dose of abortion medication to take at home (which is the standard treatment protocol for abortion under 9 weeks) might they open themselves up to criminal liability if the woman then takes the pill in Northern Ireland, given that by doing so she is committing an offence? That, of course, is a problem created by the ongoing and rights-infringing failure of governments in both Stormont and Westminster to give effect to basic rights for women in Northern Ireland. But it does nothing to lift the chill of continuing and seemingly-earnestly-meant criminalization in Ireland.
It would be unfair only to criticize the 2018 Act without recognizing that it makes abortion safe, free, and legal for a large number of women in Ireland. But even in its very early rollout it is affirming what we already knew: criminalization is incompatible with the design and provision of an agency-maximizing law on abortion. Abortion is a medical treatment. Professional regulation, existing criminal law (including assault and coercion offences), and the law of tort are all sufficient to regulate abortion.
Certainly, the new law is an improvement, but better is not enough. Full decriminalization of abortion in Ireland remains the aim for many activists who recognize that this is the only way to clear the ‘weeds’ (Fletcher, 2018) of the 8th Amendment and make a truly clean break with our history of denying women their reproductive rights.