Since January 1, 2019, the Health (Regulation of Termination of Pregnancy) Act 2018 permits abortions up to week 12 for women in Ireland. If the pregnant woman’s life or health is at risk later on in the pregnancy, or a fatal fetal abnormality is found, the pregnancy can be lawfully terminated after the 12th week. For fetal abnormalities to be considered fatal enough, two medical doctors must agree that there is medical indication that the fetus will die in the womb or within 28 days of birth. Whereas abortions are decriminalized for pregnant women, doctors who provide abortions outside of the perimeters of the law face legislative action.
There is a mandatory waiting period of three days between the first consultation and when the abortion can be carried out. The obligatory waiting period stands, even if it means the 12-week mark is exceeded during these three days. Women who do not live in immediate closeness to abortion services must travel long distances to access them, effectively delaying access to care. Women can lawfully seek abortion care in other countries with more liberal practices, such as England or the Netherlands, if they have the money to cover travel expenses and the procedure. Considering that abortion was illegal in most cases up to 2019, many women over the centuries have ventured, and continue to venture, to abortion safe havens. In fact, between 1980 and 2017, at least 171,795 Irish women and girls traveled to England to terminate a pregnancy.
The history of the Irish abortion law is long, starting in 1861 and ending with decriminalization and legalization of abortion services in 2018. Until 2018, Ireland had one of Europe’s strictest abortion laws in place.
In 1861, The Offences Against the Person Act was passed. Both women “who procure a miscarriage” and her helpers would be punished with life imprisonment, with abortion criminalized under all circumstances.
Over 120 years later, in 1983, a referendum on abortion rights was held. After Western countries had legalized abortion in the two previous decades, conservative Catholic anti-abortionists feared that the Act of 1861 would be deemed unconstitutional on grounds of rights to privacy. The referendum on the Eight Amendment to the Constitution was passed with 2/3 of the electorate in favor, effectively placing a woman’s and a fetus’ rights on equal footing. The Eight Amendment (Article 40.3.3. of the Constitution) reads: “The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.” In 1992, threats of suicide became recognized as risk to life. Risk to mental health was to be considered grounds for abortion, as the Eight Amendment upholds “the equal right to life of the mother”. However, interpretation of the law continued to be difficult to maneuver for abortion providers. There are reported cases where pregnant women who were receiving cancer treatments found themselves in need of terminating a pregnancy but were not allowed to because their lives were not considered to be in immediate danger.
In October 2012, the case of Savita Halappanavar, 17 weeks pregnant, reached national and international attention. She sought medical treatment after complaining about back pain. Upon further examination, the gestational sac was found to be protruding from her body and an inevitable miscarriage was bound to occur. However, as a fetal heartbeat was detected, the medical team refused to carry out the abortion. Consequently, Savita Halappanavar contracted sepsis and died a few days later. As the news gathered media attention and reports ensued, the Irish abortion law was criticized for overlooking maternal care in critical cases. As a result, there were increased calls to repeal the Eight Amendment. In July 2013, the Offences Against the Person Act 1861 was repealed, replaced by the Protection of Life During Pregnancy Act. From 2013, abortion was illegal unless to save the life of a pregnant woman and in 2014 only 26 abortions were lawfully carried out. Abortions in all other circumstances continued to be illegal.
Based on the experiences from 2013 onwards, a task force was formed to put forward their suggestions for the future of Irish abortion legislation. After months of deliberation, they returned with a proposal to legalize abortion up to 12 weeks, as well as in few cases based on medical indication after the first 12 weeks of pregnancy. Consequently, a referendum was held in May 2018 about overturning the current abortion law of Article 40.3.3 and allow for the legislative body to propose a new law regulating abortion. The referendum was approved with over two thirds of the electorate voting in its favor. In December 2018, The Health (Regulation of Termination of Pregnancy) Act 2018 was signed into law, effective from January 1 2019, allowing for abortions up to week 12, and after week 12 on medical indication in very few cases, as long as a 3-day waiting period is observed.
As part of the Health Act of 2018, the Minister of Health is supposed to review the legislation after three years, examining how women experience the abortion service and propose amended legislation. The appointed committee to examine this are receiving less funding than what they have been promised. They have also received calls from politicians to scrap the three-day waiting period in their proposition.
Organizations with an activist focus on increased abortion rights, such as the Irish Family Planning Association (IFPA) maintain that not everyone’s guaranteed abortion access since 2019. They fear that the stigma of abortions is not over, even though abortion is legalized. Moreover, they highlight the lack of abortion access for women in rural areas and women who find themselves in a position where they want to have an abortion after week 12. The current legislation excludes access for those who may need it, but where doctors feel they have little leeway. As a result, women and girls still travel to England to terminate pregnancies, and in 2020 alone, in the midst of a pandemic, the number was over 190. It is a complicated matter as only half of the hospitals that are supposed to offer abortion care do so. Whereas abortions prior to week 10 are monitored by general practitioners, those over week 10 must take place in hospitals with maternity wards.
Written by: Tilla Solli for The Women's Museum of Norway
Information collected by Grainne Blair M.A.
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