FIVE YEARS AGO, Ireland voted overwhelmingly to repeal the Eighth Amendment.
With over two million votes cast on 25 May 2018, the country voted by 66.4% to 33.6% to remove the amendment, which gave equal status to the life of the mother and the life of the unborn.
At 64.5%, the turnout was one of the highest ever recorded for a referendum in this country and the highest of any referendum since 1992.
The yes vote was a culmination of concerted campaigning from diverse activists who had come together to call for the amendment to be removed from the Constitution after years of women having to travel abroad for care, while others lost their lives because of it.
But problems with the current legislation have been highlighted in the years following its enactment.
An independent review of the services commissioned by the Government was published last month, highlighting problems such as the “postcode lottery” when it comes to where women can access services.
Some of those who campaigned for a yes vote have told The Journal that while the situation has vastly improved for women who seek to have an abortion, more must be done to fix the problems within the legislation.
Speaking to The Journal, Labour leader Ivana Bacik said the change in abortion services has been a “massive step forward for women”.
“Given where we’ve come from, it’s incredible to see how many doctors have signed up. It’s so welcome to see so many women who are now able to access abortion services in Ireland,” she said.
However, she said “clearly we need to do more” to improve services, citing the nine maternity hospitals that do not provide termination services and the fact that women are still travelling abroad because they can’t access abortion here.
“Having said that, there were thousands of women travelling every year until 2018. Now it’s about 200 a year, but it’s still too many and each woman deserves to get and needs to get the service here. We need to change that, but it’s still been a huge, positive step forward for women’s rights… We just need to work to make it better again.”
Looking back on the yes vote, director of the National Women’s Council Orla O’Connor told The Journal that it was a “hugely significant moment for women’s rights in Ireland”.
“It really was so important in terms of giving access to abortion, but also more than that, in terms of the huge public statements about women’s place in our society, women’s rights, moving away from an Ireland that really controlled women and sought to control the choices and the decisions they could make in relation to their healthcare,” she said.
The Eighth Amendment caused so much harm to women and the issue of abortion was one that just wasn’t spoken about. It was surrounded by shame and stigma and also led to the tragic loss of women’s lives.
O’Connor was the co-director of the Together for Yes campaign to repeal the Eighth Amendment, alongside long-time activist Ailbhe Smyth. Speaking to The Journal, she said it was amazing to see how the campaign “grew and grew” over time.
“It grew in that so many more women and couples really wanted to come forward to say what their experience had been of having to travel to Britain for an abortion. All of those stories were so important in really helping voters think about what it meant to have to travel, how really distressing an experience that was,” she said.
“Those women, in particular, talking about their experiences was a really important way of persuading the voters to see it from the point of view of women, to have that sense of empathy and compassion for women who needed an abortion.”
The campaign for changes in the law in respect of abortion was precipitated by the death of Savita Halappanavar.
In October 2012, 31-year-old Savita was 17 weeks pregnant when she was denied an abortion after suffering a miscarriage. She later died in University Hospital Galway after contracting septicemia.
“There is no doubt in my mind that when Savita lost her life, that people really rose up and said: ‘That’s enough now. We have to change the situation. We do not think that this should be happening to anybody who needs an abortion in this country’,” Smyth said.
“It was very striking that very often with our campaign, people would say ‘I don’t approve of abortion, but it really is not my decision to make. That should be up to the woman herself’. People had really understood the point about empathy, that you have to stand in her shoes and understand that my approving or disapproving is neither here nor there, that this is a decision that a woman herself should be able to make.
Looking back over the years, and thinking about all of the terrible distress, the lives that were lost, the health that was damaged for so many women because they couldn’t have abortion in Ireland, maybe couldn’t travel to Britain for all kinds of reasons, it is a deeply sad history. A deeply sad history.
“It really need not have been like that. The reality is that it was and it was really important for us to change that and we did. Repealing the Eighth Amendment, getting that huge big problem, which was a life-threatening problem for women, out of the Constitution was a really crucial first step that we had to take.”
Abortion services became legal in Ireland on 20 December 2018 when President Michael D Higgins signed the Health (Regulation of Termination of Pregnancy) Bill into law. Services commenced on 1 January 2019.
The Act allows for terminations of pregnancy up to 12 weeks. It also provides for terminations beyond this point where there is a risk to the life, or of serious harm, to the pregnant woman, or where there is a condition present that is likely to lead to the death of the foetus either before or within 28 days of birth.
Concerns have been raised about certain aspects of the legislation that has led to women and couples continuing to travel abroad for terminations.
Last month, an independent review of the current abortion legislation which had been commissioned by the Government was published.
It found that 422 GPs provide termination services across the country, while only 11 of 19 maternity units or hospitals provide full termination services. It is expected that a further four hospitals will begin providing full services this year.
The review recommended 10 changes to current legislation and 60 operational changes in relation to termination services and laws.
Dr Peter Boylan, the former master of the National Maternity Hospital, was a notable advocate of repeal during the referendum campaign, and subsequently advised the HSE on the implementation of abortion services.
“Compared to where we were before the implementation of the legislation, there’s been a huge advance in the availability of termination of pregnancy services in the country and the vast majority of women do not need to travel anymore,” Boylan told The Journal.
“However, there are clearly difficulties and problems which have been identified in the report. The three-day waiting period, the criminalisation aspect, and the fatal foetal abnormalities are causing a lot of problems. Those are the main issues that need to be addressed.”
The review recommended changes be put in place for women who need to access an abortion beyond 12 weeks in the case of fatal foetal abnormality.
The review pointed out that ‘fatal foetal anomaly’ is not a medical term and that there is “not any definitive list of conditions where death occurs in utero or within 28 days of birth”.
“Couples have contacted the National Women’s Council where the limitations in the legislation in relation to the diagnosis of fatal foetal anomaly is causing a real hardship because it is so difficult for doctors to be able to predict that 28-day period,” O’Connor said.
“We have had experiences of people who come to us – couples who come to us – who have travelled, and when they have accessed abortion care, for example, in the UK, they’ve been told: ‘You would have been eligible for this under Irish legislation’. I think that is heartbreaking, really, for people.
We know at the National Women’s Council from the work that we’ve been doing talking to members but also, just talking about abortion around the country, people are really surprised that women and couples are still having to travel. Because there is this sense of: ‘Oh, but I thought that was all solved now?’. And it isn’t.
Concerns around the criminalisation aspect of the legislation were also raised in the review.
While the woman is decriminalised under the Regulation of Termination of Pregnancy Act 2018, it criminalises anyone who assists a pregnant person to obtain an abortion outside of the provisions of the Act, with a prison sentence of up to 14 years.
Boylan said the issue of criminalisation is one that weighs heavily on doctors. He believes that it is a major part of the reason why there are not more GPs performing termination services.
“Many, many doctors I know are concerned that they won’t be protected by the law. In obstetrics in particular, there’s a huge amount of litigation that goes on, more than in any other specialty. That’s very, very stressful for people working in the service,” he said.
The World Health Organisation’s (WHO) Abortion Care Guidelines recommend full
decriminalisation of abortion law.
This is something Smyth is in favour of. “Providing or assisting a person to have an abortion within the terms of the law should never be a criminal offence,” she said.
“In any case, anything which happens outside the law is a criminal offence. Abortion doesn’t have to be singled out in this particular way, so there’s no need for abortion to be on the criminal statute, which does actually act as a kind of chilling factor for doctors and other medical professionals.”
The report also highlighted the “uneven geographical coverage” of service providers, which it said led to women having to travel for a length of time at great expense to receive care.
It states that there are an estimated 422 GPs providing termination services across the country, but that half of the counties in Ireland have fewer than 10 GPs providing termination services.
Counties Leitrim and Laois have four GP contracts, while Mayo, Sligo, Roscommon and Offaly have three GP contracts. Carlow has two such contracts, while Longford only has one such contract.
Boylan said that while this needs to be addressed urgently, it did not come as a surprise to him.
“I could see it when I travelled around the country prior to the introduction [of the legislation], just to see what the position was with regard to getting things ready,” he said.
“But it was utterly frustrating to see the lack of action by senior management in the HSE. They just didn’t seem to be bothered, really, to be honest with you. I tried to get them to a meeting and when eventually I did, they said to me: ‘What would you like us to do?’ And I said, ‘Well, a plan would be nice’. But they didn’t even have a plan.
“These are the people who are supposed to be responsible for the implementation of the health service and changes as a consequence of changing legislation and policy. But they just weren’t engaged at all.
All of these shortages and so on were eminently predictable, and here we are coming up to five years later, and they still haven’t got their act together.
The review stated that the main reason for GPs not providing termination services “may be attributed to excessive workloads”.
Boylan said the GPs who are providing the service “are doing a fantastic job”.
“They need to be heavily supported and congratulated on the job that they are doing, particularly the ones in counties where there are very few others. They need a lot of support.
“They need to be absolutely praised for what they’re doing and the efforts they’re making, and the same with the hospital doctors who are providing the service. But it is depressing to see that so many are not willing to provide the service.
“In some cases, it’s just putting their own preferences against what a woman needs and that’s not the job of a doctor. The job of a doctor is to look after a woman who presents herself to them and not to allow their individual prejudices to interfere with decisions.”
The question of the three-day waiting period has also been raised in the review, with it recommending that it should no longer be mandatory.
It states that it should be substituted with “a mandatory obligation on medical practitioners to advise the pregnant woman that she has a statutory right to a reflection period, which she may exercise, at her own discretion”.
Boylan said that he would be in favour of this change. “GPs and doctors in general are very good at detecting whether or not a woman has any doubts, and will talk to her and be very sympathetic to any concerns she may have,” he said.
“She may just want to talk it through and then maybe not come back or go away and think about it, but the vast majority of women turning up would have already decided, so the three days is just an unnecessary imposition.
“It causes difficulties for women, particularly where they have to travel from one country to another to see a GP or women who are in an abusive relationship, single mothers or others who have other children to look after. Those are situations where it does cause unnecessary hardship, and I think the suggestion that it should be an optional waiting period is a good one, and that’s really the way it should go.”
But Smyth said she believes the waiting period is “insulting” to women and should be removed entirely from the legislation.
“I think the cleanest thing to do with this is to remove it entirely. It’s good to see it being addressed by the report, but I think we need a firmer, clearer, cleaner solution, which is to say that abortion is free and should be universally available, and that means of course that any woman is entitled to go to their GP and discuss it if that’s what they want to do.”
Following the publication of the review, the Pro Life Campaign said abortion is now certain to be an election issue given what it called the “extreme nature of the recommendations” contained within it.
Pro Life Campaign spokesperson Eilís Mulroy described the report as a “travesty and betrayal of women and unborn babies”. She claimed it “undermines freedom of conscience protections for healthcare workers” and “misleadingly presents abortion as healthcare”.
“They’re saying things like, ‘Well, the numbers are much more than was expected’. Well, in my submission to the Oireachtas, I said that we anticipated around about 10,000 a year based on similar figures from Scotland and other countries. So in fact, there’s less than was the anticipated number,” Boylan said.
The review found that in the four years between 1 January 2019 and 31 December 2022, around 17,820 terminations were carried out in Ireland. Of these, 17,510 were carried out where the pregnancy did not exceed 12 weeks.
O’Connor said that what was important about the review was that it is evidence-based.
“When you look at the evidence from certain providers, and more importantly, when you look at the evidence from women, it’s on that basis that decisions need to be made,” she said.
“Of course, there are groups in Ireland maybe who don’t agree with the service, but for the purposes of making decisions in relation to this review, it has to be based on the evidence and based on international good practice. I think that’s the key thing.”
The Journal contacted the Pro Life Campaign for comment.
The recommendations made in the review in relation to legislative change have been referred to the Joint Committee on Health for its consideration.
Boylan said the Government must act quickly to ensure the recommendations are implemented.
“The glitches have been identified. Having gotten the report, they now need to move forward and fix the deficiencies. There’s no point in doing a report and then not implementing the recommendations. If you don’t want to implement recommendations of the report, don’t get a report.”
Asked how hopeful he was that the changes would be implemented quickly, he said: “Time will tell. You have to hope that they will respond to the needs of women.”
O’Connor said the National Women’s Council will be campaigning “to make sure those recommendations are brought forward”.
“I think that the Oireachtas Health Committee needs to give this report full consideration and in our view, as well as meeting with Marie O’Shea, who produced the report, they should also listen to the World Health Organisation,” she said.
I would really hope that they would have presentations from the WHO on the international best practice, because I think it’s really important that they take that into consideration, as well as the recommendations from the review.
Smyth said she would like the Oireachtas Health Committee to make its own recommendations after considering the review, but stressed that the recommendations should be implemented ahead of the Dáil’s summer recess.
“There is no reason to rerun all of the arguments that we went through for a long period of time in the lead-up to the repeal of the Eighth Amendment. There is a set of recommendations there. The Health Committee needs to take those recommendations, refer them back to the Oireachtas and to the Cabinet, and the changes need to be implemented,” she said.
She also said the HSE and the College of General Practitioners needed to take “very firm action” to ensure that women throughout the country can access abortion.
“It has sadly become a kind of postcode lottery. That’s not good enough. It’s not serving the health needs of our people, so they have to take action.”
The Department of Health was contacted for comment.
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