What is Amnesty International’s policy on abortion?
Amnesty International calls on states to decriminalise abortion, and to guarantee access to safe and legal abortion services provided in a manner that fully respects the rights, dignity and needs of all women, girls and people who can get pregnant, and free of force, coercion, abuse, violence and discrimination.
Amnesty International recognises that the ability to control one’s fertility and to decide if, whether and when to have children, is essential to the full realisation of human rights. The right to access abortion services is derived from and embraces a number of human rights, including the rights to life, health, privacy, equality and non-discrimination, and to be free from cruel, inhuman and degrading treatment or punishment.
The Eighth Amendment has been repealed and abortion services are already in place, so why is Amnesty International Ireland continuing to campaign on this matter?
Since we launched our domestic campaign in 2015, we have been working to realise access to abortion services in law and practice that is in line with international human rights law and standards. The removal of the almost blanket constitutional ban on abortion was necessary for our securing abortion services in law and practice.
Although the Eighth Amendment has been repealed, and the Health (Regulation of Termination of Pregnancy) Act 2018 has been enacted, there is more to be done. This new law, while welcome, still falls short of full compliance with international human rights law. Amnesty International will continue to campaign on this until human rights gaps in the law are addressed.
In what way does the new Act not fully respect human rights?
Abortion laws and policies – where they exist – must put pregnant people at the centre, respect and protect their sexual and reproductive autonomy, dignity, privacy, health, and guarantee their human rights. Some of the provisions in the new Act fall short of ensuring that pregnant people can access abortion services in a manner that respects their right to make decisions about their own bodies, health and lives. Issues of concern include the high and potentially ambiguous threshold created by the language on ‘serious harm’ to a women’s health, lack of access in cases of pregnancies with severe rather than fatal foetal impairments, the three-day mandatory waiting period for access to abortion on request, and the continued criminalisation of health professionals.
Is abortion still criminalised under the new law?
With the removal of the Eighth Amendment and repeal of the 2013 Protection of Life During Pregnancy Act, women are no longer criminalised for obtaining an abortion, under any circumstance. However, any person, including a medical professional, who carries out an abortion in any circumstance other than those contained in the new Act may still be criminalised. Under section 5(1) of the new Act, it continues to be a criminal offence for anyone other than the pregnant person to “intentionally end the life of a foetus otherwise than in accordance with the provisions of this Act”. This carries a possible prison sentence of up to 14 years.
This criminal penalty can create a “chilling effect” on health professionals – intimidating and potentially deterring them from fulfilling their medical and ethical obligations even where providing the abortion would be lawful – due to the fear of prosecution if they are found not to have fully complied with the law. Also, the new medical guidelines on abortion provision are necessarily limited by what the new law allows and requires, so they are not in line with international medical best practice.
The Act also creates a new criminal offence for a person to aid, abet, counsel or procure a pregnant woman to intentionally end, or attempt to interrupt a pregnancy, otherwise than in accordance with the Act. A person found guilty of this offence is could face a possible 14-year prison sentence.
This provision effectively criminalises a parent, friend or other trusted person who acts in good faith to assist a pregnant person access abortion services. This new offence risks a situation similar to the ongoing case in Northern Ireland where a woman is being prosecuted for obtaining medical abortion pills for her pregnant daughter, at her daughter’s request.
Amnesty International calls for complete decriminalisation of abortion, so that it is not a criminal offence in itself; and is instead regulated the same way as any other medical procedure, through general law and/or medical disciplinary procedures, for instance in medical malpractice cases.
Does the new law allow for abortion if the woman’s health is at risk? What does this mean in practice?
The new Act states that an abortion may be carried out where there is an “immediate risk” of “serious harm to the health” of a pregnant woman. In practice, this means that doctors may be prevented from intervening to protect a pregnant person’s health when the law requires them to wait until the risk is “immediate” or the harm will be “serious”. Defining these levels of risk and harm can make the law difficult to work for a number of reasons. For instance, it removes a woman’s autonomy to decide for herself what level of risk or harm she is willing to accept – the risk can escalate very quickly, and doctors consider it unethical to allow anyone’s health to decline when it is avoidable. Qualifying a level of risk or harm like this goes against international human rights law and medical best practice – these healthcare decisions should be made in a clinical setting, not prescribed in legislation.
Amnesty International calls for the new Act to be amended to ensure access to abortion in cases of a risk to the health or life of the pregnant person, without ambiguous and medically unhelpful qualifiers of “serious harm” or “immediate risk”.
Does the new law allow for access to abortion when there is a severe or fatal foetal impairment?
The new Act allows for access to abortion where the pregnancy involves a condition that is likely to lead to the death of the foetus before or within 28 days of birth. Putting this specific time limit in the law creates an unnecessary burden for doctors to come up with exact predictions, which can cause delays, thus potentially preventing timely access to services. It can also create a chilling factor since getting the timing wrong could result in a criminal penalty for the doctor.
There is no provision in the new Act for accessing an abortion in the case of a severe foetal impairment that will not result in death within the 28 days. The UN Committee on the Elimination of Discrimination against Women (CEDAW) has previously called on the Irish government to legalise access to abortion in this wider circumstance. Severe foetal impairments can lead to a high degree of suffering after birth, and many women and couples choose abortion for compassionate reasons. At present then, women who receive a diagnosis of severe foetal impairment and do not wish to continue with the pregnancy are still being forced to travel to seek care abroad.
In addition, not only would it be unlawful but also a serious crime for a doctor to provide abortion in cases of severe foetal impairment that do not fall within the Act’s narrow definition of “fatal”. This may also impact access for women and families whose pregnancies do indeed have fatal foetal impairments, as there is no clear medical line between what constitutes a severe as opposed to a fatal foetal impairment.
Amnesty International calls for the new Act to be amended, in line with international human rights law, to allow medical providers to provide abortion in all cases of severe foetal impairment diagnoses, with respect for the individual needs and wishes of the woman in consultation with her doctors.
How do mandatory waiting periods for accessing abortion on request impact human rights?
Under the new Act, there is a mandatory waiting period of three days between the day a doctor certifies the date of a woman or girl’s pregnancy, and when she can access an abortion service on request. This is very problematic. The UN and World Health Organisation (WHO) advise against unnecessary waiting periods like this, as they can create a barrier to access. Mandatory waiting periods cause medically unnecessary delays in access to services, which may also mean that women are denied treatment if they then pass over the legal gestational limit for accessing abortion on request (which is 12 weeks in Ireland). They also increase the cost of accessing abortion services; for example, women may need to take time off work for multiple doctors’ visits or may need to travel twice to access their nearest service. This can be particularly challenging for some women – those living in rural areas, caring for children, living with disabilities, or in Direct Provision, for example. Mandatory waiting periods also demean women as competent decision makers – it suggests that even when she has made her decision, a woman cannot be fully trusted.
Amnesty International calls for the new Act to be amended to remove the three-day mandatory waiting period for access to abortion on request.
Can a medical practitioner refuse to provide care to a pregnant person under the new Act for reasons of personal conscience? Will this prevent pregnant people from accessing care?
Individual medical practitioners – not institutions – may decline to carry out, or directly participate in carrying out, an abortion to which they object on grounds of their moral or religious views. However, they cannot refuse to make arrangements for the transfer of the woman’s care to another practitioner to enable her to access this health service. They have a duty to provide information and make a timely referral to another healthcare professional who will offer the service.
Conscience-based refusal must not become a barrier to women’s or girls’ accessing healthcare. Also, conscience-based refusal to provide care does not extend to healthcare (or other) professionals who are not performing or directly participating in the abortion procedure. The legal framework for abortion in Ireland must make it clear that conscience-based refusal does not apply to staff not directly participating in the abortion procedure.
It has been suggested that this violates health professionals’ right to freedom of conscience or religion, but it does not. The possibility for a health professional to refuse to provide (or participate in) abortion services is indeed linked to their right to freedom of thought, conscience, religion or belief. A person’s right to ‘hold’ views, beliefs, etc. is absolute, and cannot be restricted. However, a person’s freedom to ‘manifest’ their conscience, religion or belief in their words or actions is different – it is subject to limitations necessary to protect the human rights of others. In this context, the woman or girl’s right to have timely and effective access to lawful abortion services must be safeguarded.
Is there law to provide no-protest “safe access zones” outside facilities offering abortion services?
Safe access zones (or ‘exclusion zones’) are designed to prevent behaviour outside healthcare premises which is intended to, or is likely to, deter people from accessing abortion services. At present, ‘safe access zones’ have not been legislated for, but there is a government commitment to do so.
Women, girls and all pregnant persons have a right to access legal abortion services and to do so safely, and with respect for their dignity, privacy and confidentiality. In addition, access to abortion-related information and services is often time-bound and urgent, and should not be obstructed by intimidation and harassment.
Amnesty International calls on the government to take proactive and effective measures, including legislative or other steps that may be necessary, to protect and guarantee women and girls’ and all pregnant persons’ rights to health, physical integrity, non-discrimination and privacy as they seek healthcare information and services at clinics, free of harassment and intimidation amounting to obstruction of their access to healthcare. One such measure could be ensuring safe access zones outside medical practices and facilities through which women can access health clinics and thus having their right to healthcare, confidentiality and privacy protected.
What happens if a pregnant person is denied an abortion?
Under the new Act, if a pregnant woman is denied access to an abortion she may appeal the decision. To trigger a review process, a request for review must be submitted. Practice in other European countries, such as Croatia and Sweden, is that a review process is automatically triggered. Instead, Ireland’s new law puts all the onus on the pregnant woman or girl to trigger the review. Amnesty International calls for review processes to initiate automatically upon refusal. We further call for the new Act to be amended to make clear that the review process will include and be centred on the voice and views of the pregnant person, unless they choose to withdraw from the process.
Under the new law, once a review is triggered, a review committee will be established, and will complete the review within seven days of its establishment. This timeframe can be problematic as a woman may go over the gestational limit in which abortion is lawfully permitted. Amnesty International calls for exceptions to be made in these cases so that the pregnant person can receive the review committee’s decision in a timeframe that does not push her beyond the period where abortion is legally permitted.