FactCheck: Is Ireland's proposed abortion legislation more extreme than British law?

IF A YES vote is returned in the referendum on the Eighth Amendment this weekend, the Irish Government will be allowed to legislate for termination in this country.

It intends on replacing the existing Protection of Life During Pregnancy Act with new legislation allowing terminations in broader circumstances. To give us a sense of what this legislation will look like, the Department of Health has published a General Scheme of a Bill to regulate termination of pregnancy.

It has been claimed that this general scheme – which sets out the proposed laws around abortion – is “more extreme” than the British laws on abortion. This claim was most recently made by Councillor Keith Redmond in a video for the LoveBoth campaign, which is against the repeal of the Eighth Amendment.

Is the proposed Irish legislation more extreme than the existing British legislation? We take a look.

The claim

https://www.facebook.com/lovebothproject/videos/1868852500074365/

In the above video (click here if you can’t view it), Cllr Redmond says the following (we’ve bolded up the part of his claim that we’re FactChecking):

I’m actually in favour of abortion in certain circumstances, but I’m voting NO on the upcoming referendum.

Why?

The current proposal from the government is just too extreme. It would allow abortions for any reason up to three months and then for vague mental health reasons for up to six months. This proposal is even more extreme than Britain, where one in five pregnancies end in abortion. I believe we need to look at the 8th, but this isn’t the way to do it.

What is the British law?

UK Government UK Government

Abortion in Britain is covered by the Abortion Act 1967 (which you can read in full here).

(This law does not cover Northern Ireland).

It says that:

A pregnancy can be terminated by a registered medical practitioner if two registered medical practitioners are of the opinion, formed in good faith -

(a) that the pregnancy has not exceeded its twenty-fourth week and that the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman or any existing children of her family; or

(b) that the termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman; or

(c) that the continuance of the pregnancy would involve risk to the life of the pregnant woman, greater than if the pregnancy were terminated; or

(d) that there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped.

It goes on:

In determining whether the continuance of a pregnancy would involve such risk of injury to health as is mentioned in paragraph (a) above, “account may be taken of the pregnant woman’s actual or reasonably foreseeable environment”.

While two registered medical practitioners are referred to above, the law also states that this doesn’t apply if a medical practitioner believes a termination is immediately necessary to save the life or to prevent grave permanent injury to the physical or mental health of the pregnant woman.

UK Government UK Government

What is the proposed Irish law?

As we said above, we just have a General Scheme of the proposed bill – this is a framework. If the Eighth Amendment is repealed, this will be turned into a Heads of Bill, which will then have to pass through the Seanad and the Dáil and could be amended in some ways.

But for the purposes of this FactCheck, we’re not looking at any potential changes – we’re looking at what’s proposed in the General Scheme.

The scheme is made up of a number of ‘heads’ which set out different aspects of the proposed law.

Head 4 sets out termination in the case of risk to life or health.

It says it will be lawful to carry out a termination of pregnancy where two medical practitioners certify that, in their reasonable opinion formed in good faith:

(a) there is a risk to the life of, or of serious harm to the health of, the pregnant woman,
(b) the foetus has not reached viability, and
(c) it is appropriate to carry out the termination of pregnancy in order to avert that risk.

Of the two medical practitioners, one has to be an obstetrician, and the other an appropriate medical practitioner.

In Head 6, ‘condition likely to lead to death of foetus‘, it says:

“It shall be lawful to carry out a termination of pregnancy in accordance with this Head where 2 medical practitioners certify that, in their reasonable opinion, there is present a condition affecting the foetus that is likely to lead to the death of the foetus either before birth or shortly after birth.” One of the medical practitioners must be an obstetrician.

Head 7 covers early pregnancy, or termination up to 12 weeks.

It says:

It shall be lawful to carry out a termination of pregnancy in accordance with this Head where a medical practitioner certifies, that in his or her reasonable opinion formed in good faith, the pregnancy concerned has not exceeded 12 weeks of pregnancy.

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It shall be necessary for 72 hours to elapse between the practitioner certifying the above, and the termination being carried out. The 12 weeks is dated from the first day of a woman’s last menstrual period.

(Both the British and proposed Irish legislation also set out grounds for termination of pregnancy in the case of a risk to life or health of the pregnant person in emergency.)

Main differences

As you can see, there are a number of differences between the British law and the proposed Irish law.

The main differences are:

• 72-hour waiting period: Under the proposed Irish law, a pregnant person would have to wait 72 hours after their doctor certifies that they may have a termination, if they want a termination during the 12-week window. There is no waiting period at all under British law.
• Injury to the physical or mental health of existing children: Under British law, a person can get a termination if the continuing of the pregnancy would involve injury to the physical or mental health of the pregnant woman or any existing children of her family, greater than if the pregnancy were terminated. This does not exist in the Irish proposed law.
• Disabilities: Under the British law, termination is allowed if there is a substantial risk that if the child were born it would suffer from “such physical or mental abnormalities as to be seriously handicapped“. The Irish law does not mention disability as a grounds for termination. It says termination can take place if two medical practitioners certify that the foetus has a condition that is likely to lead to its death before or shortly after birth.
• 12 weeks and viability: In Ireland, terminations could take place under the proposed law up to 12 weeks for any reason. After 12 weeks, the general scheme says there must be a “risk to the life of, or of serious harm to the health of, the pregnant woman”, a termination could avert this risk (health means physical or mental health), and the foetus has not reached viability (usually around 23/24 weeks or six months of pregnancy). There is no 12 weeks provision in the British law – it says the pregnancy must not have exceeded 24 weeks.
• Injury vs serious harm: The British law says that terminations can be carried out if the pregnancy would involve risk to the life of the pregnant woman or of injury to the physical or mental health of the woman or any of existing children. The proposed Irish law allows for termination if there is a risk to the life of, or of serious harm to the health of, the pregnant woman. (Health is defined in the bill as physical or mental health). Ireland sets a higher bar here with ‘serious harm’ compared to ‘injury’.

Conclusion

Cllr Redmond is correct when he says that the proposed Irish law “would allow abortions for any reason up to three months”. Under British law terminations can take place up to 24 weeks, but there must be a risk of injury to the physical or mental health of the pregnant woman or any existing children.

However, Redmond also says that the proposed Irish law would allow for terminations “for vague mental health reasons for up to six months”.

In fact, the proposed Irish law allows for termination up to the point of viability (usually six months/24 weeks) if there is “a risk to the life of, or of serious harm to the health of, the pregnant woman” and a termination could avert this risk (health means physical or mental health).

In addition, while in Britain the pregnancy must involve risk of “injury to the physical or mental health of the pregnant woman or any existing children”, in Ireland it must involve risk of “serious harm to the health [physical or mental health]” of the woman.

Redmond says that: “This proposal is even more extreme than Britain.”

An analysis of both laws shows that compared to the proposed Irish law, the British law does not have a 72-hour waiting period; allows termination on grounds of serious disability; and allows termination if there is risk not to the mother but to her existing children.

Considering all of this, we can see that the only part of the Irish law that might be considered “more extreme” than the British law is the 12-week period where terminations are allowed in any circumstance.

However, the Irish proposed law also has a 72-hour waiting period for terminations up to 12 weeks, no grounds for termination based on serious disability to the child if it were born, and no grounds for a termination to be allowed if there is a risk to the mother’s existing children.

Therefore, we rate this claim as FALSE.

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