It is less than three weeks since the Health (Regulation of Termination in Pregnancy) Act 2018 came into legal effect but already its problems and limitations are becoming painfully obvious. The statement today from the Institute of Obstetricians and Gynaecologists is shocking but totally predictable. They have warned that abortions after 14 weeks may not be available in Ireland. This highlights how women are been failed by this Government through a lack of planning, services and resources allied with deeply flawed legislation.
These problems were entirely foreseeable and were repeatedly raised by myself and many of my colleagues in the Dáil and the Seanad. Myself and others have long argued that the crucial test of our post-repeal legislation will be its workability on the ground: in other words whether or not it will provide real abortion access for women and pregnant people who need it.
The case this week reveals that this is clearly not the case and the law is falling short of the needs of women on the ground, as the women at the centre of this case said herself: “This was not what I voted for”. It is not what she voted for, nor what any of the 1,429,981 who voted Yes to repealing the eighth amendment from our constitution voted for.
The emphasis of the Act is on restricting, not enabling, women access to abortion. How else can we explain the decision to include a clause criminalising doctors? International best practice shows that criminalising doctors creates chilling effects and does not lead to best medical practice. In addition, as I highlighted in the Dáil last year, the overly prescriptive nature of the Section 11 of the Act which creates a strict legislative distinction between fatal and serious foetal anomaly in a way similar to how the Eighth Amendment created a sharp and unworkable distinction between a woman’s life and her health, was a serious mistake. The Act has created a legal ambiguity that has produced the very circumstances of this tragic case.
As the Tánaiste Simon Coveney himself stated hospitals have an obligation to make sure decisions on abortions are consistent with the new laws. But they also have an obligation to communicative effectively with their patients and to ensure that they clearly informed of all necessary information about treatment and procedures. If she was refused an abortion under the act her legal right to appeal and the procedures for this should have been communicated to her at the earliest opportunity and not after a Dáil row that highlighted the case. The fact that there is a clear discrepancy between the accounts of the woman and her husband and those of the Coombe hospital reveals that the hospital has clearly failed to do this and, as such, have compounded the pain and grief of this woman and her husband. This is simply not good enough.