The 26 May 2018 was a historic day for the women of Ireland and for the nurses, midwives and doctors who care for them. Following a democratic referendum, the people of Ireland voted to repeal the Eighth Amendment of the Constitution by a two-thirds (67%) majority, after a 64% turnout. This means that accessing abortion before 12 weeks' gestation is no longer a crime in Ireland. Box 1 illustrates the 36th Amendment, which has been proposed to replace the Eighth.
What did we repeal and what will replace the Eighth?
Article 40.3.3, also known as the Eighth Amendment, was voted into the Irish Constitution by referendum in 1983. It stated that:
‘The State acknowledges the right to life of the unborn and, with due regard to the equal right of the mother, guarantees in its laws to respect, and as far as practicable, by its laws to defend and vindicate that right’.
In other words, the Eighth Amendment equated the right to life of pregnant woman with the right to life of an embryo or fetus. Under this strict legislation, the penalty for abortion was 14 years' imprisonment, which created one of the most restrictive abortion laws in the world (Aiken et al, 2018; McCarthy et al, 2018).
Landmark cases
Miss X
In 1992, two additions were made to the legislation to clarify that women had both the freedom to travel abroad for an abortion, and the right to obtain and make available information about legal abortion services in other countries (Referendum Commission, 2018). This was as a result of the high-profile Miss X case, which a involved a 14-year-old girl who was pregnant as a result of rape, following 2 years of sexual abuse by a man known to the girl's family. The girl was suicidal, and her family decided to travel to the UK for an abortion. The girl's parents told the Gardaí (Irish police) about their intention to travel because they wanted to use the paternity of the fetus as evidence in the rape case, and the case went to the High Court, which issued an order to prevent the girl from travelling. The case was unprecedented and so advanced to the Supreme Court, which ruled that the court had a duty to protect the girl from the real and imminent danger of suicide, which could only be avoided by termination of pregnancy (Supreme Court, 1992; Irish Family Planning Association (IFPA), 2014). However, the proposal to add an amendment to the Constitution to include suicide as a grounds for abortion was rejected.
A, B, C v Ireland
There was a turning point in 2010. The European Court of Human Rights unanimously ruled in the landmark case of three women, known as A, B and C, who travelled from Ireland for abortion care, that the health and wellbeing of these women was endangered as a result of the strict abortion law in Ireland (IFPA, 2014). Moreover, Ireland was criticised by the United Nations for its legal stance on abortion, which was found to be in violation of Article 8 of the European Convention of Human Rights (the right to a family and private life) (IFPA, 2014).
Savita Halappanavar
The case of Savita Halappanavar in 2012 was the one that finally provoked obstetricians and the government to rigorously examine the legislation. Savita was a 31-year-old dentist who began experiencing cramps when she was 17 weeks pregnant. A late miscarriage was diagnosed, and she requested a termination, but doctors felt that they could not intervene due to a persistent fetal heartbeat, despite the clear prognosis for the pregnancy (Health Services Executive (HSE), 2013a). She subsequently deteriorated and died of sepsis. Three separate reports acknowledged that, had she been granted a termination when she requested it, she would be alive today (MacLoughlin, 2013; HSE, 2013a; Health Information and Quality Authority (HIQA), 2013).
Attitude changes
In July 2013, the Protection of Life During Pregnancy Act was signed into Irish law (IFPA, 2014). The Act retained the criminalisation of abortion in Ireland (IFPA, 2014), but held that abortion was permitted in the case of a real and substantial risk to the woman, including the risk of suicide (Referendum Commission, 2018). The Act allowed for abortion in cases of a physical threat to the life of the pregnant woman, as confirmed by two doctors; or in the case of a medical emergency, as confirmed by one doctor (IFPA, 2014). If there was a lack of consensus as to the risk to the woman's life, she was entitled to address a review committee. In the case of a potential for suicide, an obstetrician and two psychiatrists needed to reach a consensus that a woman's life was at risk (IFPA, 2014). The Act stated that ‘it shall be an offence to intentionally destroy unborn human life’ and enacted a maximum of 14 years' imprisonment (IFPA, 2014).
In addition, to rights in relation to termination of pregnancy, the Eighth Amendment had an impact on the Irish HSE National Consent Policy (HSE, 2013b). The policy acknowledged the need to secure informed consent from competent adults before any medical intervention; however, the policy also recognised the legal uncertainty regarding a woman's right to refuse treatment in situations where the life of a viable fetus may be put at risk (HSE, 2013b; McCarthy et al, 2018). Clinicians are advised that they may seek legal advice about applying to the High Court for clarification or guidance (HSE, 2013b). The consent policy does not describe women's involvement in making decisions about her care, which means, in effect, that the clinician is responsible for decision-making as to the risk of harm to the unborn and the woman (HSE, 2013b).
Despite the Eighth Amendment, there is ample evidence that women in the Republic of Ireland were accessing abortion in other countries where it is legal and safe, without appropriate pre- and post-abortion care. There is substantial evidence indicating that women who have had abortions experience relief and certainty regarding their decision (Goenee et al 2014; Rocca et al, 2015; Roberts et al, 2017). Moreover, extensive psychological research has provided important information that being denied an abortion can harm mental health, whereas having an abortion does not (Holmlund et al, 2014; Quinley et al, 2014; Foster et al, 2015; Biggs et al, 2017; Pereira et al, 2017). Aiken et al (2018) conducted a qualitative study in Ireland, using semi-structured interviews with 38 women who had either travelled abroad to access abortion or self-managed a medical abortion at home via the internet. They identified four key issues: some women preferred to self-manage a medical abortion online at home rather than travel for abortion care; women lacked pre- and post-abortion support in the Irish healthcare system; women despaired when searching for safe abortion care and considered using or attempting dangerous methods; and the Irish law and cultural attitudes cultivated shame and stigma (Aiken et al, 2018). Abortion is therefore an issue of great concern for Irish society, women, and clinicians.
The road to referendum
The 2018 abortion referendum in Ireland was convened following a long journey, which began in earnest in July 2016, when a motion to establish The Citizen's Assembly was debated at and passed by the Dáil and the Seanad (the lower and upper houses) of the Oireachtas (Irish parliament) (IFPA, 2014). The Citizen's Assembly was made up of 99 citizens entitled to vote at a referendum, selected at random to be representative of Irish society (The Citizen's Assembly, 2017; McCarthy et al, 2018), and was a forum to consider the repeal of the Eighth Amendment democratically (IFPA, 2014).
Over the period of five weekends from November 2016 to April 2017, evidence was presented to them by various medical, legal and ethical experts, as well as advocacy groups and relevant individuals (McCarthy et al, 2018). The Assembly subsequently discussed and reflected on the evidence, finally making considered recommendations to the Oireachtas (McCarthy et al, 2018). The Citizen's Assembly concluded that the Eighth Amendment should be repealed and abortion services regulated and legislated for, in line with European standards (McCarthy et al, 2018). The public reaction was one of astonishment, given that the Catholic Church staunchly objects to abortion, and the Republic of Ireland has a predominantly Catholic population, although the 2016 census saw a decline in those identifying as Catholic (from 84% in 2011 to 78% in 2016) and a corresponding rise in those identifying with no religion (from 6% to just under 10%) (Central Statistics Office, 2016).
The lead-up to the referendum saw heated and divisive debates about abortion. The campaign to repeal the Eighth Amendment was led by Together for Yes, an umbrella group of more than 70 groups and communities in Ireland, and co-led by the National Women's Council of Ireland (NWCI), the Coalition to Repeal the Eighth Amendment and the Abortion Rights Campaign (Together for Yes, 2018). A grass-roots feminist and social justice movement played a vital role captivating the public interest, mobilising and generating support (NicGhabhann, 2018). The movement also stimulated various projects by artists, groups, individuals and institutions in public spaces in Ireland, such as the Masers Mural on Dublin's Project Art Centre, the publication of Autonomy by Kathy D'Arcy, and the production of ‘Not a Funny Word’ by Tara Fynn at the Abbey Theatre (NicGhabhann, 2018).
There were also a number of campaigns to vote No (i.e, to retain the Eighth Amendment). LoveBoth was composed of individuals and organisations who campaigned to protect the status quo in Ireland, including The Pro Life Campaign, Students for Life, Women Hurt By Abortion and One Day More (LoveBoth, 2018). Another group, Save the 8th (2018) included Nurses and Midwives for a NO, and Gaelic Athletes for Life. There were also independent campaigns not affiliated with any political party or movement, by Doctors for Life, The Life Institute and The Iona Institute. The No campaign focused primarily on the right to life of the fetus and the provision of improved social support for women with crisis pregnancies. It was also argued that abortion was not a necessary healthcare service, and would be an additional financial burden on the already strained health services in Ireland (LoveBoth, 2018; Save the 8th, 2018). In addition, there were concerns expressed in relation to the right to conscientious objection and the implications of repealing the Eighth for clinicians wishing to exercise their right.
The role of doctors in the campaign was notable in comparison with previous campaigns: more than 1500 practising doctors petitioned and campaigned to repeal the Eighth Amendment, arguing that it was compromising their ability to provide compassionate care to women, and that the law even prevented doctors from referral for appropriate care. Concerns were also raised over safety due to unsupervised administration of medication, and there was evidence that the Eighth Amendment had prevented some doctors from treating women appropriately.
The debate was such that some politicians went against their own party position on the Eighth Amendment and changed their minds after hearing women's stories and the expert evidence, going against their morals and beliefs. The Taoiseach (Prime Minister), Leo Varadkar (a former medical doctor and former Minister for Health), and the Minister for Health, Simon Harris, led the campaign to repeal the Eighth Amendment. The Fianna Fáil Leader Micheál Martin described the process of coming to this personal decision as ‘long and challenging’, eventually making a u-turn on his views and going against his political party (Doyle, 2018; Finn, 2018) A critical and new public stance was that you can be pro-life but still vote ‘Yes’ to repeal the Eighth Amendment to facilitate women's healthcare.
A midwife's reflection
The referendum result was for many women in Ireland, myself included, a tremendous relief, and it certainly is a day I will never forget. As midwives, it is inherent in our practice that we trust women and listen to them. During this debate, women disclosed their personal stories of feeling shamed and stigmatised, travelling alone to the UK and returning on a flight the same day, bleeding heavily with a hot water bottle on their tummy, returning to work as normal the following day. A group called Termination for Medical Reasons (TFMR Ireland), who support women following a diagnosis of fatal fetal anomaly, campaigned with the slogan ‘Stop Punishing Tragedy’. These brave families spoke out about their private, heartbreaking experiences of going through a bereavement unsupported, isolated and alone in the UK, and shared their tragic stories of returning to Ireland with fetal remains, not knowing what to do with them and feeling like criminals. They campaigned for the right to be treated with dignity and respect and to be supported to access appropriate healthcare in Ireland.
I was raised as a Roman Catholic and received my education in Catholic schools, followed by nurse training (in a Catholic hospital) and midwifery training in Ireland. I felt reassured and confident in my decision to be pro-life since, as an Irish nurse, I would never have to deal with abortion: I could conscientiously object to caring for ‘those women’.
In 2008, I moved to London and began a new qualified midwife rotation. I informed my colleagues and line manager of my feelings on ‘those cases’ and was supported in my decision not to provide this care. After gaining confidence in my midwifery skills, I put myself forward to offer bereavement support to women. To my surprise, I found bereavement a rewarding area of midwifery care, supporting families through excruciating and intimate life experiences. After my first job, I moved hospitals and took on a new challenge: case-loading women with complex medical requirements. The hospital was situated in one of the most deprived areas in the UK, Lambeth and Southwark, and was a major tertiary referral centre with a prestigious fetal medicine unit. We received complex referrals from all over the UK and further afield. I loved providing full midwifery care to ‘my women’ throughout their pregnancy, labour and postnatal care.
There were extremely complex cases, and it wasn't long before I was faced with the decision about caring for a woman who needed a medical termination. Without realising it, in that moment I became pro-choice. I recognised that the decision was extremely personal, private and difficult for this woman. Some women know, and have always known, that in the case of a fatal fetal abnormality, they would never carry that pregnancy to term. There was no question about it for me; I would not exercise my right to ‘conscientiously object’ and transfer her care to another midwife. I have provided abortion care and support for women in crisis, developing a special relationship with them during this bereavement. For me, it is extremely sad to think that Irish women have done this alone and unsupported, in a foreign country, for the past 35 years.
Through my PhD research, which is on fear of childbirth, it has become increasingly evident that in cases of trauma, informed, sensitive healthcare is urgently needed (Raja et al, 2015), and cases of sexual abuse have particularly influenced my view of abortion care. Pregnancy is a reflective time, and there is a increasing evidence that women who have suffered sexual abuse can have post-traumatic stress disorder (PTSD) (Seng et al, 2009; Nerum et al, 2013; Wosu et al, 2015); problems with anxiety, depression, eating and sleep; chronic pain-headaches; and pelvic pain (Nerum et al, 2013). Qualitative evidence from a Norwegian study of 10 primiparous women who experienced rape before pregnancy indicated that birth after rape can reactivate rape trauma, regardless of mode of birth, and cause flashbacks to the rape and feelings of being re-traumatised (Halvorsen et al, 2013). Therefore, it must be acknowledged that in some cases, such as pregnancy following a rape, a woman may not want to continue with the pregnancy.
Looking forward: how will midwifery change in Ireland?
That some clinicians have struggled with this referendum from a moral perspective should not be ignored. Midwives remain entitled to ‘conscientious objection’ (Box 2) and will need further support with this sensitive issue moving forward. Those opposing the repeal of the Eighth Amendment stated that repealing the Eighth would pave the way to ‘a very liberal abortion regimen’; however, the fact is that this new Irish legislation will be highly regulated and is not liberal when compared to other similar countries.
According to the Nursing and Midwifery Board of Ireland (NMBI) Code of Professional Conduct, midwives are expected to provide safe, compassionate, holistic, woman-centred and evidence-based care (NMBI, 2014). Following the repeal of the Eighth Amendment, the NMBI Code and clinical practice guidelines will need to be updated to incorporate standards for abortion care in line with international best practice as, at present, there is no provision of standards for abortion care (Box 2). Within the NMBI Code, providing family planning information and advice is outlined in the scope of midwifery practice, and this role becomes increasingly relevant following abortion. Protocols, education and appropriate support for nurses and midwives must be put in place to ensure that the service is underpinned by evidence, using data and best practice in other countries as an example.
The second tenet of the midwifery values outlined in the Code of Professional Conduct is important:
‘The woman is the primary decision-maker in her care and she has the right to information that helps her to make decisions.’
The removal of the Eighth Amendment recognises women's bodily autonomy, opening up choice in maternity care for women and the right to refuse treatment, and the Irish HSE National Consent Policy will need to be updated to reflect this.
It is hoped that the new legislation will be passed and enacted as soon as possible, but so far, there has been no discussion between the Irish Government and representatives of relevant groups on the subject of service provision. Therefore, a significant amount of work remains in order to follow through and deliver a high quality abortion service to Irish women, which will not be possible until a consensus is reached among health professionals, and adequate resources are allocated.
This referendum has forced our nation to dig deep and do some soul-searching. What is clear from the result is that something extraordinary happened as women all over the country began to tell their stories. We as a nation heard them and we listened. We decided that there is no place for judgement when it comes to healthcare. Repealing the Eighth Amendment was a vote for women, trusting women and placing them at the centre of decisions about their personal healthcare. As midwives, we are committed to, and now face the challenge of, providing safe, appropriate and high quality abortion services, tailored to women in Ireland. As the Irish poet Séamus Heaney once wrote: