Imperfect system and cruel barriers still stopping women access abortion

While the amendment was repealed by popular vote of 66% on May 25, 2018, legislation to allow for the termination of pregnancy in Ireland was only passed on December 20, 2018, meaning that services did not begin until January 2, 2019.

“UK figures, from private providers, are showing that for the first quarter [of 2019] there is a drop of two-thirds for the number of Irish women travelling compared to before,” Mary Favier told the Irish Examiner.

“But why is there still a third? It could be that the three-day wait period is too much for them, or they have exams and they can’t wait, or that they are in the 12- to 14-week period.”

Dr Favier is a Cork GP and a member of Start Ireland, a support group of GPs who provide termination of pregnancy services.

While the exact figures on the number of legal terminations of pregnancy taking place here will not be available until the end of the year, the Irish Examiner contacted a British provider to see if the number of Irish women they are seeing has fallen in 2019.

The British Pregnancy Advisory Service (BPAS) has seen an 85% drop in women travelling from here to access its services.

“In January 2019, we were still seeing a significant chunk of our usual caseload from the Republic of Ireland but we saw a drop in February and March, perhaps suggesting that the initial teething problems with the Irish service are now being resolved,” said a spokeswoman for BPAS.

“In February 2019 we saw 13 women from RoI, so roughly 15% of our previous caseload, most of whom were over the 12-week mark. In March 2019, we saw 11 women from RoI, again most of whom were over 12 weeks.

“So it’s early days but the figures seem to suggest that the number of women travelling who are under 12 weeks is now very low.

"Interestingly, we’ve also seen a drop in numbers of women who are post-12 weeks, but at the moment it’s too early to know why.”

In relation to abortion pills, Dr Favier said there has also been a dramatic drop in the number of tablets being bought online.

This was of major concern before the referendum, as up to three people had been purchasing the pills over the internet every day and taking them without any medical supervision.

“We don’t know how many tablets are still being sold online,” said Dr Favier. “The numbers have dropped dramatically, but not to nothing.

For people living in remote areas or in difficult situations where privacy is a concern, they may be buying online still.

A woman can now have a legal abortion in Ireland up to 12 weeks into pregnancy, — and later in pregnancy based on other grounds such as the diagnosis of a fatal foetal anomaly or in cases of risk to life or serious harm to health.

The two pathways to care are either via a GP or in a hospital.

The first point of contact for a woman or girl seeking a termination of pregnancy here has been through the HSE’s MyOptions.ie help-line, where information, counselling, and nursing advice is offered. The caller will then be told of GPs in their area that are contracted to provide the termination.

There have been 6,000 calls to the HSE’s crisis pregnancy helpline since abortion was legalised in Ireland, and there are 319 GPs contracted to provide the service.

In January, the MyOptions helpline received 1,925 calls for information and counselling, and 387 nursing-related queries.

In February, there were 1,026 calls to information and counselling services and 218 nursing queries.

In March, there were 1,102 calls for information or counselling and 261 for nursing. And in April, there were 919 calls for information or counselling and 293 nursing queries.

However, the number of pregnancies that have been legally terminated here since the legislation was enacted will not be available until a year has passed.

Accessibility

Dr Favier said there are still gaps in accessibility to care, with the HSE confirming to the Irish Examiner that Sligo, Leitrim, and Carlow still have no GP providing a termination of pregnancy service.

“This is no small thing. This means women having to travel and get several buses to do so,” Dr Favier said.

“Then there are active anti-choice people who are targeting GPs and there are comments being made to them on the side of GAA pitches. But we don’t expect that to last.”

Only 10 of the country’s 19 maternity hospitals provide full termination of pregnancy services.

A spokeswoman from the HSE said: “Work is ongoing with the hospital groups to roll out the service in additional maternity hospitals in 2019”.

In relation to the three counties without a GP-based service, the HSE said it is satisfied with the geographic spread.

In her own GP practice on the Commons Road in Cork, Dr Favier said the main response from people accessing abortion care is one of “deep appreciation”.

“The biggest feeling you get is that people are deeply appreciative, those — and it’s most people — who were aware of the Repeal campaign,” she said.

However, Dr Favier said the three-day waiting period, as is legally necessary between a person’s first medical consultation and the termination of a pregnancy, is causing issues.

“The three days is hugely problematic,” she said. “A bank holiday weekend can push the second appointment to a Tuesday and there is re-rostering at work and childcare needed.

"If you have to make an excuse to get out of work you have to then make a second excuse.”

The Irish College of General Practitioners (ICGP) is providing HSE-funded training to any of its members who opt in to provide termination of pregnancy services.

Mary Short, who is the ICGP’s director of sexual and reproductive health, said that at the beginning there were some “teething problems, like any new service”, such as pharmaceutical stock of medication and rhesus blood testing.

“For the vast majority of cases it is working, but there is a greater urgency to get tests done, the closer women are to nine weeks,” said Dr Short.

A key issue that has emerged is access to ultrasounds to date a pregnancy when the woman does not have a regular menstrual cycle and the date of conception is hard to estimate.

This is key so that the termination is done in accordance with the law, which is up to 12 weeks in early pregnancy.

“You date a pregnancy from the first day of the last period, but not every woman has a regular cycle,” said Dr Short. (Between 21 and 35 days in length is considered a regular cycle.)

“A pregnancy is dated from the first day of the last menstrual period, so then if you go into women who only have periods six times a year, then you can’t date the pregnancy from the first day, so that’s when you need a scan, and they need to be done in special ultrasound units. The ultrasound provision continues to be patchy.”

The other major issue is access to free and appropriate contraception.

“Everybody should have access to free contraception,” said Dr Short. “If a woman has access to the contraception that is appropriate to her needs, then she is less likely to have a contraceptive failure.

“It makes for healthier women, it allows them to take charge of their reproductive health.”

Health Minister Simon Harris has commissioned a review into how best to deliver free contraception.

It was one of the suggestions of the Joint Oireachtas Committee on the Eighth Amendment as a way to reduce the number of crisis pregnancies.

The law

The Health (Regulation of Termination of Pregnancy) Act 2018 is the legislation under which abortions may take place in Ireland.

The three key provisions are, firstly, for early pregnancy up to 12 weeks, the second is for fatal foetal anomalies and the third is where there is a risk to the life and serious harm to the health of the pregnant woman.

Máiréad Enright is a barrister, lecturer at the Birmingham School of Law, and a member of Lawyers for Choice.

She says that there are “key defects” in the current legislation, which affect both women and doctors working under the threat of criminalisation.

Ms Enright cites the three-day waiting period as being “intensely problematic” and in practice, that is something that GPs have said patients are being most affected by.

“In the provision for care up to 12 weeks the three-day waiting period is making it practically difficult to access terminations,” said Ms Enright.

“There is no medical justification for it, and we would say it is a massively disproportionate infringement on a person’s rights.

“The Government said the purpose of it was to give a person the opportunity to reflect on their decision, but even if you accept that rationale, there is no evidence to say that a three-day waiting period assists.

“It is intensely problematic that the three-day waiting period cannot be waived for whatever reason.

"What if you’re in a situation of domestic abuse and couldn’t get out, or if you can’t travel? And the closer you get to the 12-week deadline, the more pressure.”

Ms Enright also said the wording in the legislation around fatal foetal anomalies is problematic.

The law states that a termination can be carried out where there is a condition affecting a foetus that is likely to lead to the death of the foetus either before, or within 28 days of, birth.

“Say it is 30 days after birth, that is not a scenario that comes under legislation, it’s black and white,” said Ms Enright.

“What matters is the effect on the woman, under the shadow of stigma. There are cases on that borderline, where the parents’ suffering is just as great.”

Under the other provision in the legislation, where there is a risk to the life or serious harm to the pregnant woman, Ms Enright said the ground is “too vague”.

“We don’t know in practice how the medical professional will implement that ground,” she said.

If you miss the 12-week deadline, this is going to be your main route to service, for cases of rape, or if the pregnancy is a threat to your mental health.

"It’s a black box — maybe that ground is just too vague. What is risk? What is serious? You have all these factors that doctors have to weigh up.”

Lastly, the threat of criminalisation that hangs over doctors is another concern.

“The 2018 Act decriminalises a woman, but if the doctor steps outside the legislation they can be criminalised,” said Ms Enright.

“When the Minister [for Health] was asked why he was retaining criminalisation, it was to deter coercement and unregulated terminations.

"But if they are the evils he wants to address, you need better legislation, because the shadow of potential criminalisation hangs over a doctor.”

Ms Enright said there will be a review of the legislation in 2022, although there might be a test case around the risk to life and serious harm to health provision in the meantime.

Any amendments to the current legislation will happen as standard through the various Houses of the Oireachtas, with TDs and senators of the day voting on any changes.

Termination for Medical Reasons

During the campaign to repeal the Eighth Amendment, a group called Termination for Medical Reasons (TFMR) outlined multiple scenarios whereby their members had to travel to the UK for abortions after receiving a diagnosis of a fatal foetal anomaly.

There is now a provision within the legislation to allow for abortions in Ireland for these types of medical conditions,” said Claire Cullen from TFMR. “However, the group is still experiencing barriers to care.

“Exactly what we hoped wouldn’t happen is still happening, even without the Eighth Amendment in the Constitution.

“Diagnoses are being made in the most conservative, narrow sense. Some doctors aren’t declaring that they’re conscientious objectors and that they just don’t believe in fatal foetal abnormalities.”

She also claimed that some medical professionals had made insensitive comments to women who had just received a diagnosis of a fatal foetal anomaly and were seeking a termination of their pregnancy.

‘What good is an abortion to you anyway?’ ‘Your baby is going to die anyway at some stage’ are some of the alleged comments.

“Some of the things that have been said to women, that have come up at support meetings, include: ‘I don’t know what you’re crying for,’ and then a midwife not even dressing the baby,” said Ms Cullen.

“It has to be confronted and challenged.

“Then there are women who travelled earlier this year and they were diagnosed just before Christmas.

A woman was told: ‘You won’t get an abortion here even after Christmas’. She had to wait all over Christmas, she was so stressed the legislation wouldn’t cover her.

Another incident that is alleged to have arisen is women having to deliver a stillborn baby alongside other women having healthy babies.

The Irish Examiner asked the HSE about these alleged incidents.

A spokeswoman for the HSE said it cannot comment on individual cases and that more details need to be sought and brought to the attention of the relevant hospital groups, in order to address these allegations.

Ms Cullen said that despite the fact that the Eighth Amendment has been repealed and legislation is now in place, TFMR is still fielding weekly phone calls from distressed parents.

“In 2018, we’d get two calls a week, but post-Repeal there has been an increase — we’re hearing from more people, maybe 10 cases a month,” she said.

“We’re seeing a lot more of severe abnormalities but they won’t be treated here. They are catastrophic diagnoses but not fatal, they can be rare enough and they go across a whole spectrum you didn’t even know existed.

“What we’re seeing more of now is couples who think we can arrange care for them abroad.

"Even without changing legislation, for people who don’t come under our current law, if we can arrange a care pathway to be put in place between Ireland and somewhere in the EU for women.”

An added issue that has arisen after the legislation for terminations in the case of a fatal foetal anomaly diagnosis, is increased stigma.

“The stigma now of travelling is much worse because if the baby’s diagnosis was bad enough you’d be looked after here. There are assumptions around that,” said Ms Cullen, who experienced her own loss after a fatal diagnosis.

She said it is a “devastating” situation to find yourself in, and one that is made far worse by judgement and shame.

“You think you’re going to have a baby and your bubble is burst,” she said. “That moment in the scan when you ask: ‘Is everything OK?’ and the answer is ‘no’, there is just no going back from that.

"It’s devastating. Your child could be in pain the longer the pregnancy goes on or if you go into labour.

“You can’t cook. You can’t have a shower. You’re so stressed and your self-esteem hits the floor.

“Then on top of that, you’re being judged.

“We know what’s right for us and when you’re told your instinct is wrong it’s horrible.

"The idea that any of us choose a termination — our choice would be to bring our baby home and raise our child.”

TFMR estimates that there are still up to three women per week travelling abroad for a termination, having received a devastating diagnosis.

Just one week before the first anniversary of the referendum on the Eighth Amendment, it was revealed that an external review was taking place into a fatal foetal diagnosis that resulted in the termination of a pregnancy at the National Maternity Hospital.

The parents, speaking through their solicitor, said they were utterly devastated to find out through later tests that there had been a misdiagnosis.

Marginalised groups

Meanwhile, even after the repeal of the Eighth Amendment and the subsequent legislation has been enacted, there are still access issues that are affecting minority groups in Ireland.

For example, those seeking asylum in Ireland and living in direct provision can find it difficult to access termination of pregnancy services. It can range from finding it difficult to access a GP or speak to a GP about abortion, because of stigma.

For women with disabilities, the three-day wait period and needing to visit the GP twice is proving problematic.

“All of this is happening in a context where there are significant barriers to sexual and reproductive rights for people with disabilities broadly,” said lawyer Maria Ní Fhlatharta, of Disabled Women Ireland.

“There is a huge misconception that disabled people don’t have sex. There is this persistent infantilisation.

“People with disabilities are more likely to have high-risk pregnancies. Of the maternal deaths in this country, 68% of them are women with disabilities.

“The three-day wait period is a problem because you have to make multiple visits, meaning you’ll need extra transport and support cover for personal assistance.

"It’s having to arrange all of this multiple times. It would make things impossible for some people in certain situations.”

Another issue is the fact that not every GP is the country has signed up to the service.

Therefore women with complex conditions who have strong relationships with their doctor must go to a different GP.

“Because there are only 319 GPs providing, you’re likely not going to be able to access care with your usual GP and that has issues,” said Ms Ní Fhlatharta.

“You will have to disclose your disability and they may not have an understanding of a complex condition.

"It makes a big difference to have a doctor that knows you and your condition.”