Many reproductive rights will depend on who is in power for the next few years
By Neasa Candon
General Election 2020 has seen almost no discussion about how to build upon last year’s Yes vote and achieve equal access to free, safe and legal abortion services for all living in Ireland.
In the lifetime of the next government, the incoming Minister for Health will review the legislation currently regulating abortion services in Ireland, the Health (Regulation of Termination of Pregnancy) Act 2018. Consensus analysis of polling data suggests that, without a left-swing strong enough to win the 27 seats needed for a broad-left coalition, there is a high chance that the emerging government will be led by Fianna Fáil. Given the large proportion of anti-choice voices in Fianna Fáil, the junior party, or parties, of a coalition government would face significant resistance to the much-needed furthering of access to abortion care.
Although Micheál Martin advocated a Yes vote in the lead-up to the referendum to repeal the Eighth Amendment, he has spoken publicly of his personal conflict in abandoning his long-standing anti-choice stance. Martin’s decision caused conniptions in Fianna Fáil, which had voted to retain the Eighth Amendment at its 2017 Ard Fheis. Fianna Fáil continues to allowed freedom of conscience on the issue of abortion.
The withholding of the party whip was probably a strategic decision by Martin, given that 31 of the 57 Fianna Fáil TDs and Senators campaigned against a Yes vote in the 2018 referendum. If elected Taoiseach, it is very uncertain that Martin would introduce any measures facilitating access to abortion care, which would further destabilise his leadership.
Fianna Fáil’s one hundred and fifty-two page manifesto sees only one reference to reproductive healthcare, as distinct from maternity care: it is about ensuring the availability of anomaly scans in all maternity hospitals. This one commitment does, at least, feature on the National Women’s Council of Ireland’s (NWCI) ‘Feminist Ireland Manifesto 2020’, and is echoed by Sinn Féin, which promises staff and equipment along with access to foetal anomaly screenings in all hospitals.
‘No one left behind’
In choosing the theme ‘No one left behind’ for the September 2019 March for Choice, the Abortion Rights Campaign (ARC) drew attention to the large number of people in Ireland who, despite the legalisation of abortion, still cannot get access to a termination.
The homogenised, top-down ‘Together for Yes’ campaign arguably reduced both the terms and the outcome of the Repeal referendum to a vague ‘right to choose’. Moralised debates in mainstream media, led by politicians and public figures in place of grassroots campaigners, failed to address the provisions necessary to overcome specific barriers to accessing healthcare. As a result, the Health (Regulation of Termination of Pregnancy) Act 2018 has instituted a ‘right to choose’, without the provisions, additional supports and legislative nuance required to ensure that this right can be vindicated by all.
In campaigning for Repeal, and reproductive justice more generally, activists highlighted the distinct barriers to travelling abroad for abortion imposed by a person’s ability, medical needs, legal status, poverty, race/ethnicity, and rural location.
Most, if not all, of these barriers have persisted since the legalisation of abortion. The suggested policy responses to each of these barriers, as detailed in party manifestos, are discussed below.
The wording of section 62 of the Health (Regulation of Termination of Pregnancy) Act 2018 is deliberately restrictive in promising abortion services to those “who are ordinarily resident in the State”. Undocumented migrants are excluded from the category of ‘ordinarily resident’, despite the fact that, like the large population of undocumented Irish in the US, most undocumented migrants have lived in Ireland for several years.
Complex visa regimes cause many people to become undocumented, and may result in significant periods of time spent in precarious legal situations. The activist group, Migrants and Ethnic Minorities for Reproductive Justice (MERJ), were recently contacted by a pregnant woman in the process of renewing her visa, who was afraid to contact her GP as she was undocumented during that time. While awaiting visa renewal, she passed the 12-week limit for abortion access in Ireland.
Undocumented people are caught in a triple-bind. Seeking medical assistance can risk exposure and legal ramifications, including deportation; the cost of an abortion and other healthcare in Ireland is uncertain; and their legal status restricts their ability to travel.
The overlap between health and migration policies here further demonstrates that manifesto policies cannot be read in a vacuum. For example, while Fine Gael refer to the National Intercultural Health Strategy 2018-2023, and their commitment to “enhance access” for “those from diverse ethnic, cultural and religious backgrounds”, this would not remove the ‘ordinarily resident’ criteria. The party pledge to consider the regularisation of undocumented children only. Despite committing to healthcare “free at the point of use” for “everyone”, Sinn Féin then makes reference to “entitlements to health care for citizens”. Regularisation of undocumented migrants is not mentioned in the party’s manifesto, and so it is unclear whether the ‘ordinarily resident’ criteria would be relaxed.
The Green Party and Social Democrats support regularisation for all, while labour support regularisation undocumented migrants who are children or ‘adult workers’. People Before Profit commit to a single-tier healthcare system “free at the point of use”, the eligibility criteria for which are not outlined. Fianna Fáil make reference to ‘integration’, but their manifesto lacks a right-based framework, and makes no reference to undocumented migrants.
Safe Access Zones
Along with contraception, Fine Gael’s only other reference to reproductive healthcare, as distinct from maternity services, is the introduction of ‘safe access zones’. However, the Irish Council of Civil Liberties (ICCL) have criticised Fine Gael’s delay in enacting this legislation, noting that Safe Access Zones were first promised by Minister for Health Simon Harris in December 2018.
Safe access zones legally restrict activities, such as protests or displays of distressing imagery, outside abortion service providers. Following demonstrations outside Holles Street maternity hospital on New Year’s day, during which anti-abortion campaigners carrying small coffins crowded the doorway of the hospital, the ICCL initiated a campaign urging voters to contact election candidates and call for the immediate implementation of safe access zones.
Garda commissioner Drew Harris considers such legislation ‘redundant’, given the existence of current public order laws. However, the ICCL rejects the view that such legislation is sufficient to safeguard against potential harm done to the wellbeing of service users, drawing attention to the fact that people may be deterred from accessing healthcare as the direct result of such demonstrations. Both Labour and the Social Democrats commit to the implementation of safe access zones, with the Social Democrats and Green Party also including a pledge to regulate rogue pregnancy counselling agencies.
Equal Access to Abortion Services
The ICCL further suggest that implementation of Safe Access Zones may facilitate greater provision of abortion services nationwide, noting that the fear of anti-abortion demonstrations outside their practices has deterred some GPs from agreeing to provide access to terminations. Indeed, 12 months on from the legalisation of abortion, figures released by the HSE revealed that less that 15% of the country’s GPs have signed up to provide abortion care. This presents significant obstacles for many who would prefer to seek treatment from their own GP.
The low sign-up rate among GPs disproportionately affects disabled people, and those with additional medical needs, who may be required to relay medical histories to a new doctor on their first meeting. Depending on the nature and complexity of a person’s condition, the time taken by a doctor to discern the potential risks and necessary precautionary measures may cause a delay in treatment. This situation is wholly unacceptable, given that provision of abortion services in Ireland is already time-sensitive on account of the 12-week limit.
Access is also an issue for asylum seekers living in direct provision. Direct provision centres tend to be in rural locations, often intentionally isolating residents from the local community. Some of the issues facing asylum seekers in need of abortion care include: a lack of information on where to avail of an abortion; vulnerability to rogue agencies; interpretation and translation issues; high transport costs for those in rural centres living on the meager weekly allowance of €38.80, compounded by the 3-day reflection period which requires two GP visits; a ban on travelling abroad should the 12-week limit pass, and a lack of privacy in overcrowded centres while having an abortion. Families often share a single room, and single people are often placed in shared or dorm-style accommodation.
Asylum seekers will never have equal access to abortion until there is an end to direct provision. People Before Profit, Sinn Féin, the Social Democrats, Labour and the Greens pledge to end direct provision. Fianna Fáil and Fine Gael make reference to moderate reforms.
While the manifestos of Labour and the Social Democrats mirror NWCI’s call for full access to abortion services nationwide, the parties fail to detail how this will be implemented. Section 22 of the Health (Regulation of Termination of Pregnancy) Act 2018 allows for objection by medical practitioners to the provision of abortion care, with the exception of emergency treatment, on the basis of conscience. Ethical guidelines later released by the HSE advise that practitioners exercising their right to conscientious objection must provide sufficient information to enable the transfer of the patient’s care.
The conscientious objection clause is essentially the root-cause of the unequal geographical distribution of abortion services in Ireland. But it is absent from all parties’ manifestos. At time of writing, GP-led abortion services cannot be accessed in Sligo. St Luke’s General Hospital, serving Carlow and Kilkenny, will not provide for termination of pregnancy.
In affirming the right of individuals to object to the provision of terminations on the grounds of conscience, the Council of Europe emphasised the state’s duty to ensure that the exercise of this right does not prevent access to ‘timely’ medical care. The Council further expressed specific concern at the impact of conscientious objection on those with low incomes, and rural communities.
In the judgment in R.R. v. Poland concerning conscientious objection to abortion provision, the European Court of Human Rights placed the responsibility on the state to ensure that, once termination of pregnancy has been legislated for, it does not “structure its legal framework in a way which would limit real possibilities to obtain it”.
Section 12 in the Health (Regulation of Termination of Pregnancy) Act 2018 institutes a mandatory waiting period of three days between the first certification of pregnancy by a medical practitioner and termination. As the Abortion Rights Campaign have rightly pointed out, this condition was recommended by neither the Citizens’ Assembly nor the Joint Committee on the Eighth Amendment of the Constitution. Rather, the suggestion of a so-called ‘reflection period’ was introduced late in the campaign to win over reluctant Yes voters.
As the Oireachtas discussed the implementation of a 3-day waiting period, the ICCL criticised the proposal as unnecessary, and noted that it did not comply with international human rights standards. Similarly, the World Health Organization recommends the elimination of waiting periods, because of risk of delays in healthcare provision. It further contends that such conditions “demean women as competent decision makers”.
Indeed, the reflection period is condescending in its inference that those choosing to avail of abortion services take the decision lightly, and cannot themselves decide the appropriate level of consideration and consultation with medical professionals before proceeding with a termination. While no party manifestos explicitly refer to the reflection period, Solidarity TD Ruth Coppinger and People Before Profit condemned its initial implementation.
The 12-week Limit
Stating that the “lawfulness of abortion does not have an effect on a woman’s need for an abortion, but only on her access to a safe abortion”, the Council of Europe advises against prohibiting abortion within “reasonable gestational limits”. The human rights organisation warns that such restrictions on access to terminations often result in clandestine abortions, or the need to travel for healthcare, which can be prohibitively expensive and results in further social inequality.
The Abortion Support Network report that more than 25 of their service users had been within 3 days of the 12-week limit when refused an abortion in Ireland in 2019. Similarly, terminations were refused to over 10 clients of the Abortion Rights Campaign who also scanned within 3 days of the 12-week limit. In one of these cases, a woman had been within the 12-week limit on first contacting her doctor, but, having been referred for a scan, was informed that she was 12 weeks and one day pregnant when her results were returned, and was therefore refused treatment.
A limit of 12 weeks’ gestation on access to termination ‘for any reason’ was a key selling point for the Together for Yes campaign, and became a red-line issue for Fine Gael, and parties of the centre-left. Reference to either support of, or expansion upon, the 12-week limit is absent from all party manifestos. Of all the Dáil parties, only Independets4Change and Solidarity-People Before Profit opposed the time limit before its implementation.
The introduction of free contraceptives is a core pledge contained in NWCI’s general-election manifesto. Fine Gael’s commitment to this is limited, with a plan to phase in free contraceptives, beginning with those in the 17-25 age bracket, but lacking a clear plan for future roll-out. The Social Democrats’ commitment to “affordable” contraceptives, and Sinn Féin’s promise of “state-sponsored contraception” are both unclear about what cost, if any, will be incurred by service users.
While Labour promises both long- and short-term contraceptives free of charge, the Green Party goes a step further, advocating free GP visits for issues related to contraception. Acknowledging the prohibitive cost of many long-term contraceptives, Solidarity-People Before Profit propose to offer contraception through a public health service, which would be free at the point of use.
Reproductive rights are not confined to the single issue of legalising abortion. This election campaign has seen countless candidates stress their involvement in the Repeal referendum, but many of their parties’ policies, beyond the ones outlined above, restrict the realisation of reproductive justice.
Issues include: whether they will provide stable homes so that those choosing abortion can do so with dignity and privacy; whether their resourcing of hospitals, primary care centres and GPs facilitate timely and accessible provision of terminations; whether respite and homecare services will be available for those with caring duties who undergo an abortion; whether workers have sufficient protection, without the threat of repercussions for sick leave; whether sufficient supports will be available to those in situations of domestic violence, whose ability to choose whether to have an abortion may be restricted by an abusive partner; and whether unaffordable childcare, lengthy commuting, high rents, precarious work and the high cost of education will be tackled so that those who wish to have children are not prevented by circumstance from doing so.
At its core, Repeal was never a single-issue campaign, and neither should this election be for anyone concerned about reproductive justice.