The report of the Independent Review of Ireland’s abortion legislation was published this week. Abortion legislation was passed in 2019 following a referendum removing the 8th Amendment (a foetal life provision) from the constitution. Under the Amendment, only some life-saving abortions were legal. Today, abortion is available on request up to 12 weeks LMP and thereafter on limited grounds (risk to life, risk of serious harm to health, and diagnosis of some ‘fatal fetal anomalies’). The Review documents the important changes enabled by this reform. It also confirms difficulties in providing abortion care within the spirit of the Act, and obstacles to care baked into the legislation.
Although the Irish media have presented the Review as recommending dramatic legislative changes, the reality is more modest. Most recommendations require ‘operational’ modifications to abortion services, within the existing law. The government will reportedly accept all of these. Some of the Review’s proposed legislative amendments also address operational concerns. For instance, GPs can provide abortion care in early pregnancy, but in some counties, few do. The Review accordingly suggests permitting other willing and qualified healthcare professionals to provide abortion care. It also offers new statutory tools to tackle documented misuse of conscientious objections. Proposed ‘safe access zones’ to manage protest outside healthcare facilities are already government policy. (Implementation is another matter).
The Act is framed around grounds and time limits, which shape defences where a doctor providing care may otherwise be committing a crime. The evidence underpinning the Review affirms established critiques of this model, but none of the recommended amendments would substantively change the Act’s grounds or time limits.
The Review does not propose extending the 12-week time limit for accessing abortion on request. It advises reframing the associated 3-day mandatory waiting period as a statutory entitlement, which the woman could exercise or not. This would assist women who can only seek care late within the 12-week window. The Review also proposes that the 12-week time limit could be extended in a few exceptional circumstances, where a woman has sought care in time but, through no fault of her own, has ‘timed out’ before care was provided or completed. This would cover failed treatment, delays caused by the 3-day wait if retained, or delays within the healthcare system but not, as drafted, obstacles to accessing timely care associated with social marginalisation.
As far as the law goes, the Review asks that guidance supporting clinicians’ interpretation of the legislation be provided, modified or supplemented, suggesting legislative amendments where this is insufficient. For instance, a proposal to spare doctors criminalisation under the Act is one of several measures intended to discourage unduly conservative interpretation of the legislation. A proposed amendment to the little-used ‘risk of serious harm to health’ ground is designed to reassure doctors assessing fluctuating health conditions. The Review does not, however, suggest removing the demanding requirement that the abortion would ‘avert’ (rather than ‘mitigate’) the health risk.
Will these limited amendments be adopted? The Taoiseach is ‘reluctant’ to change the law. Some in cabinet argue that the referendum was effectively a vote on adopting the legislation itself, as published in draft, in March 2018. Government used this reasoning during the 2018 Oireachtas debates on the legislation to resist calls for many of the same kinds of amendments the Review now recommends. (None of the Review’s criticisms of the legislation will surprise those lawyers, NGOs, activists and opposition politicians, who identified its defects at the time.)
The 2018 referendum did not replace the old fetal life provision with any text expressly protecting reproductive rights. The government has never indicated that women have rights that might trump its policy agenda. The Review report assumes that there are human rights issues in play but stops short of offering a sustained analysis of delayed and denied care, or compelled abortion travel, as human rights issues. Aside from its discussion of ‘safe access zones’ it offers no real analysis of constitutional rights (to privacy, bodily integrity, equality and so on) as they might apply to abortion (on which, see here and here). We may soon find out how much this reluctance to defend a right to abortion access matters for women’s health.