Analysis – State Failures: Five Years Since the Eighth Was Repealed

By Niamh Cavanagh. Originally published in The Ditch's State Failures.

The result of the 2018 referendum that repealed the Irish constitution’s eighth amendment should have been monumental. It should’ve truly changed things. That’s what we were told and what we wanted to believe. It represented a rejection of church dogma and conservatism. It was to give women bodily autonomy. On the day the result of the referendum was announced, Leo Varadkar called what had occurred a “quiet revolution” and promised the women of Ireland that there would be “no more lonely journeys across the Irish Sea.” It’s been five years since Varadkar's victory speech. This vision is yet to be realised. 

Statistics released by the UK’s Department of Health and Social Care show that in 2021 at least 200 women travelled from Ireland to England or Wales to access abortions, and in the first six months of 2022, that number was 86. 

One reason is the 12-week cut-off limit that women must comply with, which, according to Maynooth University postdoctoral researcher Lorraine Grimes, is “really conservative” when it comes to failed abortions. Ireland’s current legislation ignores World Health Organisation (WHO) guidance that states there should be no limit to access to abortion care and should be treated by medical professionals as if it's any “other form of healthcare”.

The Abortion Rights Campaign has argued that poor information on abortion is a significant barrier to women, which causes delays in care. In Ireland, women have to contact MyOptions – a service unknown by most. “The WHO emphasises the need to produce and disseminate clear and accurate information about how and where to access these services,” Grimes said.

Another issue is the regulations on fatal foetal abnormalities, which state that medical professionals can only sign off for abortions if there is a zero percent survival rate 28 days after the birth. “Medicine doesn’t really work like that—you can’t put a timeframe on a foetal anomaly,” Grimes said. “There’s no way a doctor can interpret this.” 

A report from 2021 showed doctors’ feelings about making these decisions. “I think we would like to have our expert views taken more into consideration and that there be a greater trust of the fact that we can make those decisions,” an OB/GYN said. “We need support rather than being threatened.” 

So Irish women are forced to travel. 

'We voted on the understanding...'

The same report from 2021 showed that one woman was denied an abortion by a doctor because her foetal diagnosis “was not severe enough” and that the baby was “most likely” to die shortly after birth. “How could I go on for months being pregnant with a bump and people asking me how far along I am, knowing my baby was going to die...,” the expectant mother told the report's authors. 

Another barrier to women accessing the appropriate care has been the failure to introduce safe access zones, which would ensure space between patients and anti-abortion protesters at healthcare facilities. In 2018 campaigners asked the then health minister Simon Harris to deliver these zones at clinics and practices providing abortion care. After the referendum was passed, Harris said they were “too complicated” to legislate for but would be brought in later. 

“We voted on the understanding that there would be safe access around hospitals that would be included in the legislation,” Karen Sugrue, co-chair of campaign group Together for Safety, said. “It soon became clear that the government had no intention of bringing in safe access zones,” adding that these zones would deliver on all patients’ right to privacy, no matter which procedure for which they attend healthcare facilities.

Women have faced other forms of harassment. “Every week in Ireland for five years, protesters have been posted around the country,” Sugrue said. There have been incidences of protesters taking pictures and posting them online. “They may notice when a woman is there again three days later, and they might make inferences on that. That can be a life-or-death issue for somebody.” 

Dr Madeleine Ní Dhálaigh’s practice in Roscommon has been the site of monthly protests since 2019. Although Dr Ní Dhálaigh agrees with the protestors’ right to protest, she is concerned about her patients and their right to confidential medical care. “Our area of the country is sparsely populated compared to other areas, so everybody knows somebody,” she said. “So if a young woman from a neighbouring town is accessing care, one of the protestors may be from there, recognise she is attending a clinic away from her base and draw a possibly erroneous conclusion.”

As of September, a bill to introduce a 100-metre safety access zone is in its third stage in the Dáil. In July, the legislation was approved by the cabinet, with health minister Stephen Donnelly saying that the new laws would provide “safety”, “privacy”, and “dignity” to women. 

An independent review published earlier this year proposed several recommendations for the current abortion legislation. Varadkar said he felt “reluctant” to modify it as it would be a “breach of promise with the electorate”. Barrister Marie O’Shea, who chaired the review, said she found Varadkar’s comments “deeply troubling”.

“So essentially what he's arguing is that he's reluctant and uncomfortable about his own government's policy, which I think is a little worrying, particularly when he uses language like the kind of questions around the safeguards,” she said. In her recommendations, O’Shea included making the mandatory three-day waiting period to access an abortion optional – something that several healthcare professionals and activists I spoke to agreed with. 

“There’s no medical need for a three-day wait. It was put in as an appeasement for more socially conservative voices,” said Alliance for Choice activist Danielle Roberts. Orla O’Connor, the director of the National Women’s Council of Ireland, called the waiting period “patronising” and Dr Mary Favier of Doctors for Choice said it was causing “significant harm” to women. 

Other barriers include difficulties in accessing care for patients who don’t have PPS numbers, with migrant women particularly affected by this issue, as well as confusion about the process for seeking an abortion on mental health grounds. Grimes said that after speaking with several doctors, most did not know how to issue this type of referral. It turns out women need to attend an hour-long psychological assessment with a perinatal psychologist before being able to access an abortion. There are only nine in the country, with five in Dublin. 

When is the woman’s decision the final decision? The doctor decides, the perinatal psychologist decides and the government decides. Irish women have not yet earned bodily autonomy. Five years on, and instead of celebrating the progress of abortion care in Ireland, the same people who fought in 2018 continue to fight.

Niamh Cavanagh is a writer and video producer based in London.