Abortion review’s approach to ‘three-day wait’ may reopen old wounds

Barrister Marie O’Shea’s report is on track to be delivered in December

Almost exactly four years ago this week, politicians gathered in a basement committee room in Leinster House to thrash out the finer details of landmark legislation to legalise abortion across the State for the first time.

During the lengthy meeting, then minister for health Simon Harris cast his mind back to that summer’s referendum to repeal the Eighth Amendment.

“I remember during the referendum debate ... many people were suggesting that we look to the UK. I and others kept saying that the United Kingdom was not a good example because they have old legislation that has not been reviewed in years. The point is to ensure we do not fall into that trap.”

Pressing the case for a future review of the nascent law so it could be updated and kept fresh, Harris said it was imperative that if “our doctors have views on how to make things better, then they have an opportunity to put forward those views”.

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In that meeting it was agreed that there would be a review of how the law was operating three years after it was enacted, instead of five years, which had been previously mooted.

The outcome of that review is now imminent.

The Government earlier this year appointed barrister Marie O’Shea as the independent chairwoman, and a well-placed source confirmed that her work was on track to be delivered in December. While she is understood to have consulted widely as part of her work, she has not provided interim reports to the Department of Health, so politicians are in the dark about exactly what she will recommend.

Given Harris’s original comments about the centrality of medical voices to any review, it is safe to say these voices will also be prominent in the coming weeks.

Outgoing master of the Rotunda Hospital, Prof Fergal Malone, is clear on two things: firstly, the introduction of the law has not led to “the floodgates opening”, as some predicted.

Secondly, he is unequivocal that the three-day wait – the period of time a woman must wait before getting access to abortion medication – is “stigmatising” and “paternalistic”.

The current law allows termination to be carried out in cases where there is a risk to the life, or serious harm to the health, of the pregnant woman; where there is a condition present which is likely to lead to the death of the foetus either before or within 28 days of birth; and without restriction up to 12 weeks of pregnancy, once the three-day waiting period has passed between a first and second consultation.

The vast majority of women seeking access to terminations will be seen by their GP, but those between nine and 12 weeks pregnant will be seen in hospital.

Prof Malone said it was a “relatively small number between nine and 12 weeks that come to our pregnancy options clinic and it certainly has not been overwhelming in terms of numbers or capacity. It has not caused us a challenge.”

He added: “The three-day wait is, we feel, wrong in principle. As far as we can see, it is the only aspect of healthcare where a grown adult who has full control of their mental capacities is not listened to and is told to go away and come back in three days. There is no requirement, we feel, to have that there. As a principle, it is paternalistic and stigmatises women further by saying pregnant women are not in control of their faculties and need extra time. It does not sit well.”

Emotional trauma

He is not the only one who feels that way.

One strand of the ongoing review involved looking at the experiences of women and to this end, the Health Service Executive commissioned Dr Catherine Conlon of Trinity College Dublin to examine this. In her report, published earlier this year, she wrote: “The data indicates the mandatory three-day wait should be removed from legislation. Instead, the model of care should retain a second consultation as optional for women to attend within a time frame agreed by them and their provider while allowing the service to be delivered within one consultation if preferred.”

She came to this conclusion after hearing the testimony of women forced to wait, including one woman who said it added to the emotional trauma she was experiencing.

“Just trying to, you know, keep everything, you know, keep everything normal with the kids, keep everything normal with work, it was just extremely stressful. I mean it’s extremely stressful anyway, but I just felt [the three-day wait] really prolonged that.”

Aontú leader Peadar Tóibín takes a different view on the topic, which has always been one of the more contentious elements of the legislation.

He points towards data released to Independent TD Carol Nolan that shows how in the first year of legislation being enacted, 7,536 women attended initial appointments for abortions, but the total number of abortions carried out in that year was 6,666. He says this means that 12 per cent of women, having considered abortion within the three-day wait period, opted not to go ahead with it.

Tóibín acknowledges that there could be reasons for this – miscarriage, for example – but he said given the “enormity of the decision”, the waiting period should remain.

His party has argued, during a public consultation for the review, that the three-day waiting period should be extended to five days.

Stephen Donnelly said: ‘No serious adverse events have been reported to the HSE related to remote consultations for termination of pregnancy’

The former co-director of the Together For Yes campaign, Ailbhe Smyth, said: “It would be very difficult to see how an honest review would not make recommendations for change”.

“The three-day wait period, even if it is done by telemedicine, is demonstrably not necessary.” Smyth hits on a topic which has been the subject of much debate internally in the Department of Health. Telemedicine calls, or online consultations, were introduced during the Covid-19 pandemic to assist women who could not travel because of restrictions but who needed access to abortion care.

While Aontú has called on this practice to end, saying it is harder for a doctor to identify coercion online, it appears that the opposite is soon to happen.

The Irish Times understands that Minister for Health Stephen Donnelly expects to receive advice imminently that will recommend the extension of this service. That advice will come from the chief medical officer and the HSE, and the direction of travel is clear.

Donnelly said: “No serious adverse events have been reported to the HSE related to remote consultations for termination of pregnancy.” Preliminary findings indicate that most providers within primary care feel that a blend of remote and in-person care is optimal, he said.

Foetal abnormalities

There have also been calls for changes to the law for those women beyond 12 weeks who are given a diagnosis of a serious foetal anomaly. Dr Conlon’s research, for example, said the needs of women seeking abortion services for severe foetal abnormalities were not currently being met.

“Women in the case of foetal anomaly, not necessarily diagnosed at that time as fatal, are travelling to Britain,” Smyth says.

“All of the research would indicate that the women who are travelling, which is somewhere between 200 to 300 women [a year] do appear to have a diagnosis of foetal anomaly. That is really not good enough at this stage.” She said Ireland should be seeking to facilitate abortion, “not prevent it”.

Prof Malone said the Rotunda Hospital looks after about 30 to 40 patients a year on the grounds of fatal foetal abnormality.

“There will probably be another 10 to 20 patients a year who have very serious foetal abnormalities but don’t meet the criteria as laid down in legislation, that is, we can’t say in good faith that the baby will likely die within 28 days,” he said. These women, who have been given a diagnosis of serious foetal abnormalities, typically travel to the UK, he said.

“Would we rather look after those patients here? Of course we would, we would much rather provide all care for all patients. But we accept you have to work within the legislative rules that are there.”

He has previously acknowledged “how horrible, how particularly traumatic that journey is for patients to have go to a foreign county, a foreign healthcare system, and then make the journey home either carrying their babies’ remains or having their babies’ remains sent by courier, days or weeks later.”

But, he said, this was always going to happen.

“Once limitations were put on terminations for foetal abnormalities, they were never going to do all terminations in Ireland. That was never on the cards. I don’t think any of us ever expected the legislation to change to just be a blank canvass for anyone who wants a termination.”

He said the “intent, the spirit of the referendum change, my understanding having been part of the campaign and advocating for a Yes vote, was that there was an appetite to bring in pregnancy termination for fatal foetal abnormalities. I don’t believe there was an appetite, that the population would have voted to bring in termination for any form of disability.” He said if this had been the proposition, the vote in favour of repeal may not have been so high.

Therein lies the crux of the challenge awaiting Donnelly, the Cabinet and the Dáil at large: the proposed law was clearly laid out for the public before they voted, and many voted on that basis. Bringing about any kind of change will inevitably spark another fierce debate in the Oireachtas and among the public, and this may very well be one of the arguments: that a less, or indeed more, restrictive regime was not what the public voted for.

Smyth does not see that particular point as an issue.

“What people voted for was that the Oireachtas would be responsible for passing legislation. The whole point about a law is that it is infinitely more flexible than a clause in the Constitution. We don’t have to go back to the people every time a law is amended.” She pointed towards the outcome of the Citizens’ Assembly which predated the referendum.

When it came to the substantive issue of abortion, almost two-thirds (64 per cent) of the assembly members opted for “terminations without restrictions” – abortion on demand.

Another interesting aspect of the forthcoming debate is this: 21 Fianna Fáil TDs in the last Government voted against even holding a referendum in the first place, so where will they stand on this review, and of the idea of change to the law? The Irish Times contacted many of the 21 to ask them, but none responded.

Another topic that is also likely to arise in the course of that debate is that of conscientious objection. This is facilitated in the legislation and applies only to staff directly involved in the provision of the service.

It is understood that there are a number of hospitals in which there is no consultant obstetrician willing to provide the service and there are also a number of hospitals in which there is a shortage of theatre nurses who are willing to participate in the service. This is one of the reasons why so far, only 11 of the 19 maternity sites are providing full termination-of-pregnancy services.

Donnelly promises that, thanks to investment in the national maternity strategy, this is one area that absolutely will change next year.

“This investment has seen additional consultants and midwives appointed and has helped to reduce the level of objection to the introduction of the service. Six of the eight remaining hospitals are due to start providing services in 2023,” he said.

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