On 25 May 2018, the Republic of Ireland will hold a referendum to decide whether to repeal the Eighth Amendment, a constitutional provision that effectively amounts to an all-out ban on abortion in the country.
If Ireland votes yes, it will pave the way to a new abortion framework, likely allowing abortion on request up to 12 weeks and on the basis of fetal or maternal indications thereafter. Women themselves would be completely removed from any criminal implications.
The result of the referendum could be the end of a long journey, both for the women who for decades have travelled to England when faced with an unplanned pregnancy or a pregnancy they could not continue, and the campaigners who have fought so hard for so many years for change. However, we are not at the end of the road yet.
Changing landscape
As is so often the case, it takes a wholly avoidable tragedy to accelerate the pace of change, which came with the death of Savita Halappanavar, who was experiencing a late miscarriage, in Ireland in 2012. Health professionals felt that they could not intervene to accelerate the process in a pregnancy clearly doomed, as the fetal heart was still beating. She died of septicaemia.
But the fact that Ireland is voting on this issue—and that the polls look strongly in favour of repeal—also illustrates that this is a changing society; one that is no longer prepared to tolerate the hypocrisy of claiming to be ‘abortion-free’ while forcing its women into the hands of kind strangers abroad, or letting them take their chances with abortion pills ordered online.
Ireland has been able to function as a modern liberal democracy precisely because it is not abortion-free. Indeed, pregnant women have been able to make decisions about their lives and families—the difference is that the process has simply been more emotionally draining, financially challenging and stigmatising than for women elsewhere. Irish women have abortions, but they have them in secrecy, shrouded in shame.
‘The Eighth Amendment compromises midwives' ability to provide woman-centred care that respects women's pregnancy and birthing choices’
Abortion does not exist in isolation. At a level of principle, our position on abortion shows where society situates women and how much trust is placed in women and their ability to make their own moral decisions. There are also practical ramifications: giving the fetus the same moral value as the women who carries it can also have implications for how maternity care is provided. The Eighth Amendment compromises midwives' ability to provide woman-centred care that respects women's pregnancy and birthing choices. Pregnant women's bodies should not be located in criminal law, nor those trying to help them threatened with prosecution and punishment.
The situation at home
We may look to Ireland and wonder why it has taken so long to reach this point, but we would do well to consider the UK's own legal framework surrounding pregnancy, one underpinned by a 19th Century criminal code that made it an offence punishable by life in prison for any woman to end her own pregnancy and for anyone to assist her in doing so.
The 1967 Abortion Act (which never extended to Northern Ireland) did not get rid of those underlying criminal provisions. Rather, it provided exemptions to prosecution when two doctors agreed that a woman met specific grounds laid out in the Act, and the abortion took place in hospitals or clinics specifically licensed by the Secretary of State for Health.
This may have made some sense at a time when abortion was entirely surgical— and when any surgery was inherently more risky—but today it inhibits the provision of the best possible woman-centred medical care. It is likely in Ireland that early medical abortion, involving two sets of medication taken 24-48 hours apart, will be available through a primary care clinic, as it is in other countries, with women also able to take the second dose of the medication at home, so they can be in the comfort and privacy of their own surroundings when the pregnancy starts to pass. In England, only women being treated for incomplete miscarriage are afforded this dignity; women undergoing early abortion must travel—sometimes considerable distances—to take the pills in a specifically licensed clinic, then have to rush home before the bleeding and cramping begin.
Because of the distances involved and the multiple appointments, women are increasingly turning to online sources. One study published this year showed that in a 4-month period alone, more than 500 women in England, Wales and Scotland sought abortion medication from just one provider (Aiken et al, 2018). They were invariably women in extremely challenging circumstances, such as those suffering domestic violence or with work and childcare commitments that made in-clinic care difficult or impossible.
The fact that abortion is still regulated by criminal law in England, Wales and Scotland puts needless obstacles in the way of women accessing care, then threatens them with criminal sanction when they take matters into their own hands.
In Northern Ireland, women must either travel to England for care or buy pills online. In the past 2 years, at least three women have faced criminal sanctions for doing so, with one case against a mother who bought pills for her teenage daughter still ongoing.
In February, the United Nations Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), in a report on abortion law in Northern Ireland, called for the UK Government to repeal sections 58 and 59 of the 1861 Offences Against the Person Act—the provisions that criminalise abortion across the UK (CEDAW, 2018). Westminster retorted that it now allows Northern Irish women to access free care in England, but this is not good enough.
Ensuring best clinical care
Repealing these sections of the 1861 Act would effectively decriminalise abortion up to 24 weeks in the UK. Decriminalisation would not mean deregulation, but it would mean that abortion could be governed in the same robust way as all other healthcare procedures, and provided in accordance with the highest standards of clinical care. It would remove the risk of prosecution for health professionals who provide safe, high quality care, as well as eliminating the needless bureaucracy that is the two doctors' approval, a legal requirement that serves no clinical purpose and can cause delays for women who are sure of their decision. It would mean those nurses and midwives who wanted to, could offer women early surgical procedures, exactly the same as the ones they can currently provide to women needing treatment for an incomplete miscarriage. It would mean women were at the heart of decisions about their care.
Last year, a bill to decriminalise abortion up to 24 weeks in England and Wales passed its first reading in the House of Commons. It could not progress further due to the snap election, but we are hopeful that it will return.
As Ireland moves forward and looks to create a new legal framework for women, it's high time we brought British laws into the 21st Century too.