Last updated: 26th October 2018

 

The 8th has been repealed! Presumably ASN can close now?

Alas, no. While we are, of course, ABSOLUTELY THRILLED that the Irish voters voted to repeal the eighth amendment, all the referendum did was remove the bit of the Irish constitution that makes abortion legislation impossible. On September 18th President Higgins signed the 36th amendment, removing the 8th amendment, into law.

As of right now abortion in Ireland is still illegal in almost all circumstances and the current legislation, the Protection of Life During Pregnancy Act 2013 will continue to operate until a new law for the regulation of abortion is introduced. People who need support are still contacting us every day. And as always, we are helping them.

 

What happens next? 

There is now scope for Ireland to legislate for safe, legal abortion in more liberal circumstances.

On 4 October, Health Minister Simon Harris presented the Regulation of the Termination of Pregnancy Bill 2018. Rather than give our own list of issues with the proposed legislation, we will summarise the brilliant analysis compiled by Lawyers for Choice in Ireland.  

Issues with the law (or as ASN’s crack twitter team says, “19 reasons why we’re not shutting any time soon”): 

1) It never uses the word ‘abortion’. 

2) It applies to ‘women’, when intersex, non-binary and trans people will also need abortions. 

3) It does not full decriminalise abortion. It starts by listing offences (and creates a new offence in s. 5(a) of helping another person to have an illegal abortion – which has been prosecuted in NI – see the recent judicial review). 

4) It retains a 14 year prison sentence for performing an abortion, so that doctors may still worry about prosecution, and interpret the legislation conservatively. Implementation guidelines should clarify how references to ‘good faith’ and ‘reasonableness’ generate defences. 

5) It contains no guarantees of access to care, and prescribes no remedies where care is wrongfully delayed or denied. 

6) There is no provision for nurses and midwives to certify/provide abortion care in early pregnancy, even though this would help access and they are perfectly capable of performing these functions, with training. 

7) At no point does the legislation require doctors to take account of the pregnant person’s own assessment of risks to her life/health. (Maybe this will be covered in implementation guidelines). 

8) s. 10 – what does ‘serious harm to health’ mean? Presumably this will be fleshed out in implementation guidelines. 

9) s. 12 – ‘condition likely to lead to the death of the foetus’…within 28 days. 28 days was not part of the draft legislation put to the people in March-May. Implementation guidelines need to ensure that uncertainty about how long dying baby might live does not prevent access. 

10) s. 13 – up to 12 weeks. Delay is the big issue here. Will this provision be genuinely accessible to everyone who needs it? @disabled_choice and @RCNIreland already raising questions. 

10 a) @Startdoctors have outlined a likely path to care. Pre-9 wks – Appointment 1 with GP + Appointment 2 (pill 1) + 24-48 hours (pill 2, preferably at home) + Appointment 3 (aftercare) 

10 b) But Appointment 1 can be delayed if your GP has a conscientious objection, referring you for a new Appointment 1. Or it can be delayed if your GP sends you for a scan to date the pregnancy (he can’t certify you until he can say in good faith that the pregnancy < 12wks 

10 c) Or if the GP who saw you at Appointment 1 gets sick or is bereaved or goes on holidays, the legislation suggests that you need to start the process again (because the same dr must certify and arrange treatment) 

10 d) Or @SimonHarrisTD has suggested that after 9 wks, you would be referred to hospital, to be placed under the care of a consultant obstetrician. Take home point on 10) = DELAY. 

11) – s. 13 also contains a 72 hour waiting period. Depending on when the clock starts (from Appointment 1, or from first contact with the health service e.g. by ringing the designated helpline) this could be a further source of delay. 

12) Even assuming everything goes well, 12 weeks (9 weeks in practice) won’t be enough time for lots of people. Is this time limit workable? Will we see continued travel or continued (still criminalised) reliance on pills? 

13) The Bill maintains the same review process as under the PLDPA. We don’t know an awful lot about how that operates or about what is done in practice to ensure the pregnant person has a voice in the process (especially important for vulnerable people). 

13 contd) Reviews under the PLDPA are very rare, but we know that most have been carried out under the ‘suicide’ ground. 

14) s. 21 – as @IrishFPA point out, the notification/reporting provisions here are very slender. We need proper public health data collection, so that we know the system is working. And we need to review the operation of the law after 3 years. 

15) s. 22 – consent. How will this law interact with the law on capacity to consent (vulnerable people), the law on children’s consent to medical treatment? And can we assume repeal of the 8th means pregnant people will now have the ordinary right to refuse medical treatment? 

16) s. 23 – CO – this cannot be weakened. Think especially of teenagers, or adults with intellectual disabilities living in congregated settings or in the care of family members. Lots of people don’t have a meaningful choice of GP. The first dr they approach must help. 

17) s. 24 – the only purpose of this section is to stigmatise providers and it should be removed. 

18) s. 62A – does this mean that women travelling from NI to access services must pay for them? (They don’t have to pay anymore if they access in Britain on the NHS). 

19) No provision has yet been made for exclusion zones outside hospitals/places where abortion care is provided. We know that current legislation cannot adequately regulate the kinds of protest/imagery seen during the referendum. 

 (NB: Not all of these points require amendments to the Bill to resolve. Some can be dealt with by clear implementation guidance). 

Lawyers for Choice published a briefing for amendments to the bill on 23rd October.

Of course if you’d like to read the entire legislation, you can find it here: https://data.oireachtas.ie/ie/oireachtas/bill/2018/105/eng/initiated/b10518d.pdf

In addition to legislation, there are other pieces that need to be put into place. Healthcare practitioners will need to agree to provide abortions. Training may need to be provided. Agreement will need to be reached as to where abortions will take place. And in Ireland, where there is no national health service, costs will need to be determined.

 

Who will still need ASN?

In the short term, the same people who have always needed us. Because in the short term, nothing has changed. Not for people in the Republic of Ireland, not for those in Northern Ireland who fall through the cracks of NHS funded abortions in England, and not for those in the Isle of Man, where they are also on the eve of legislating for safe legal abortion.

In the medium term, people who fall outside whatever abortion legislation passes in Ireland – because the first rule of abortion legislation is that it only ever restricts the poor, the vulnerable, the marginalised – in short, ASN’s clients.

And even when there is legal abortion available IN Ireland, there will still be women and pregnant people who need abortion beyond 12 weeks, who fall through the cracks of legal provision or, for whatever reason, need to travel to England for abortion. About the 8th sets out clearly what kind of abortion travel is likely to still happen.

 

Does this mean ASN will need less money as you’ll be helping fewer people?

Once the Irish legislation and provision are in place, it does seem likely we will be helping fewer people. But there’s a lot more we’re interested in doing, so we’re not stopping fundraising!

Once laws are passed and we see what reality looks like for the people who need safe abortions in our current countries, we have plans to expand our services to additional places, jurisdictions or to additional groups, to help more people in need.

We’re at the initial phase and once we have specifics we’ll be sharing them with our supporters and friends to see what you think.

One thing is for certain, ASN will be here, helping pregnant people from Ireland, Northern Ireland and the Isle of Man (and maybe some other places in future!) for as long as it takes for them to be able to access legal abortion closer to home.

If you’d like to donate to help us keep doing our vital work, please do!