LAST UPDATE | 8 Dec 2021
HEALTH MINISTER STEPHEN Donnelly has said that “ease of access” for abortion services has not yet been achieved three years after new laws around pregnancy termination were enacted.
Donnelly was facing questions from TDs this morning ahead of next month’s deadline to initiate a review into abortion legislation.
He said this review has now formally begun as the Department of Health this morning commenced a public consultation, allowing members of the public and advocacy groups inform the review of the abortion laws.
Donnelly said he was not yet in a position to name an independent chair to lead the second phase of the review as this position required a public tender.
The terms of the review have also been criticised by campaigners and politicians after Donnelly said they would focus on how the current laws operate and not whether the policy itself.
The Health (Regulation of Termination of Pregnancy) Act came into force in January 2019 and gave effect to the Eighth Amendment referendum the previous May.
Under the law, a termination of pregnancy is available on an unrestricted basis up to 12 weeks of pregnancy. Terminations beyond the 12-week limit are only lawful in the case of a fatal foetal abnormality or a risk to the life or serious harm to the pregnant person.
The operation of the Act is required to be reviewed after three years.
The review is to be overseen by an independent chair but campaigners have expressed repeated concerns about the delay in announcing the chair.
The chair is likely to have significant scope in shaping the direction of the review, which the minister has promised will take a three-part approach that involves service users, service providers and a public consultation.
In his introductory remarks to the Oireachtas Health Committee, Donnelly did not say who was being appointed as the independent chair but outlined that they “will assess the extent to which the objectives of the Act have been achieved”.
“The chair will assess the extent to which the Act’s objectives have, and have not, been achieved and will make recommendations to address any barriers identified,” he said.
Asked by Sinn Féin’s Seán Crowe TD for a timeline on the appointment of the chair, Donnelly said that a tender process would select the chair “early in the new year”.
“Then what I would hope to see is that the report is submitted in the summer or autumn of next year,” he said.
Donnelly also said that “women’s experiences of termination of pregnancy services” would also be “a critical source of information for the review”, adding that this was “the most important part of the first phase”.
The Health Minister said he had hoped to appoint directly but that this was not possible due to the amount of public money involved.
“I was informed that a procurement processes was necessary for the work, which is unfortunate as we had identified a number of excellent candidates and I’d much rather be announcing a chair with you here today,” he said.
Principal Officer in the Department of Health Geraldine Luddy said there hasn’t been a final figure put on the cost but that “it could be up to €100,000″.
During the hearing, it was revealed a tender has been published to conduct research ”to inform the review” but that the position of the chair had not yet been advertised.
Speaking after the hearing, committee member Bríd Smith TD of People Before Profit said it was “farcical” that these details were not provided to members in advance.
Issues
Campaigners on both sides of the abortion debate have sought changes to the laws as they currently operate.
Pro-choice campaigners have cited a lack of access to abortion services, with one survey this year finding that just one in 10 GPs are offering abortion services. They have also criticised the legally-mandated three-day wait period between a consultation with a doctor and the abortion taking place.
Anti-abortion activists have highlighted what they say is a lack of information around the provision of abortion services. They have also pushed for legislative changes that would require doctors to administer pain relief to a foetus during abortions after 20 weeks.
Under the Programme for Government, the minister has already committed to legislating for exclusion zones to prevent protests outside abortion providers.
Under questioning from Fine Gael’s Bernard Durkan TD, Donnelly said that he “would not currently be satisfied with the provision of services geographically” and that he doesn’t believe “ease of access” has been achieved.
Despite this, Donnelly said there has been “a significant reduction” in people travelling to the UK to procure a termination and this was “one of the big questions” that had to be addressed before the 2018 referendum.
“Certainly the numbers of women involved and traveling versus the number of terminations provided here would suggest that that objective largely has been achieved,” he said.
However, there are still a number of women who are traveling and I think that for example, would be one of the things that would be covered in this review. Why are they traveling why do they feel the need to travel?
Addressing this question, Luddy said that information from clinics in the UK suggested that 375 women travelled there from Ireland for terminations in 2020.
“They were made up from different reasons but predominantly for women who had a diagnosis of a fetal anomaly that wasn’t fatal,” Luddy said.
And also for women who were over the 12 weeks, so in our own Act there is unrestricted access to terminations when you’re under 12 weeks but over that there has to be clinical reason.
Terms of reference
A number of deputies expressed frustration that the terms of reference for the review had not been provided to them ahead of today’s meeting. Donnelly apologised for this and the terms were subsequently provided to the committee.
Among the issues the review will examine are extent to which the Act’s objectives have not been achieved, with the review to make recommendations to address these barriers.
It will examine the extent of service provision in the community and service provision in hospital settings.
In his opening statement, Donnelly said that the review of the legislation will be focused on “the operation of the legislation, rather than on the policy underlying the Act”.
Sinn Féin TD David Cullinane asked the minister whether the underlying policies would therefore be examined “at any point”.
“We do need to be very clear here that this is not a review of the policy. The policy is agreed. It’s a review of the operation of the policy, if the operation of the policy uncovers issues that require recommendations on the policy that is within the scope, but we’re not reopening the question of Repeal,” Donnelly said.
Cullinane said he “understands the point” the minister was making but he described it as a “Yes Minister answer”.
Cullinane then specifically asked about the question of the three-day wait period for a termination and inquired whether this could be revisited if issues were identified during the review.
In response, Donnelly said:
The waiting periods for example, they’ve been raised with me by many people, some people think they should be gone, some people think they should be longer. The review is not about examining that as a policy question. That’s a decision that has been arrived at by the Oireachtas. However, the review is going to look at the operational implications of that waiting period.
Pushed further on this by Fine Gael TD Seán Kyne, Donnelly said:
“We can’t preempt what the report is coming back with and what is linked to operation difficulties. It is possible that the report comes back and says ‘the operationalisation of this three days is very difficult, we recommend it moves to two days or it moves to four days’. The chair can recommend whatever they want so long as it’s linked to the operation of the of the Act. And then obviously it’s for all of us in the Oireachtas to review that.”
Asked later about the 12-week limit on unrestricted abortions, Donnelly said it was “not in scope” to look at changing this limit but that the operation of how this works for healthcare professionals would be examined.
Reacting to today’s hearing, advocate group the Irish Family Planning Association said it was “deeply concerned” about the planned review.
“The delay appointing a chair and confusion about the review’s scope may jeopardise this opportunity to improve access to abortion care and reproductive autonomy for women and pregnant people,” the group said.
Committee member and SocDem co-leader Róisín Shortall TD said that the operation of the laws and the policy are “inextricably linked” and both should be on the table.
“There are ongoing problems relating to accessibility that need to be examined as part of this review. Clearly, the operation of the law needs to be reviewed – but the operation of the law is informed by the legislation. Therefore, the operation of the policy and the law are inextricably linked,” she said.
The minister should confirm his willingness to amend the law if there is a strong view, from service users and providers during the consultation process, that its operation is being hindered.
Following a review
After the report is completed next year it will then be presented to the Health Minister and then likely sent to the Health Committee.
Speaking before today’s hearing, committee member Green Party TD Neasa Hourigan told The Journal she had written to the minister to suggest that a legislative review similar to what was undertaken when the Gender Recognition Act was being reviewed could be repeated.
She said that, while the issues are different, during that review process the review panel “listened to the people who are really affected”.
Hourigan estimated that such a review could take six months and that any further consideration by the TDs would have to reach the “high bar” set by the Oireachtas Eighth Amendment Committee in 2017.
In statement after today’s meeting, spokesperson for Pro Life Campaign Eilís Mulroy said that the review process was “wholly one-dimensional”.
“The one-sided approach adopted by the Minister this morning would leave one to believe that the three year review will be a cold house for those who hold a pro-life viewpoint and who represent a sizable portion of the electorate. The minister cannot simply ignore the experiences and views of those with different perspectives on abortion,” she said.
Earlier this year, the Minister for Health said the initial stages of legislative review had been commenced and that he has held meetings with a group of civil society organisations brought together by the National Women’s Council of Ireland (NWCI).
Speaking to The Journal, the NWCI’s Alana Ryan said the minister met with representatives in the summer but they are yet to find out who will chair the review.
“The minister did promised back in June when NWCI representatives from our Abortion Working Group met with him to appoint an independent expert chair in reproductive health to provide oversight of this critical review process, but since that meeting we haven’t heard any more,” Ryan said.
“We don’t know whether an expert has been appointed, there’s been no public announcement. And it really is crucial that we do have a chair who’s an expert in reproductive health and equality-based healthcare in position for the review so we can be confident in the process.”
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