The three-day waiting period for abortion: the case for its removal

Barrister Marie O’Shea’s report on the operation of Ireland’s post-repeal abortion law was received by Minister for Health Stephen Donnelly last month. It is expected that it will recommend a “loosening” of the law and possibly the removal of the current mandatory three-day waiting period to access an abortion. While the report itself has not yet been published, these leaked details indicate that the current legal regime around abortion is too strict and may be impeding access for those in need of it. More alarmingly, Dr Deirdre Duffy, part of a team of researchers which examined the experiences of women and service providers as part of the overall review, last week cautioned that the current system of abortion provision is in danger of collapsing, noting the lack of facilities and staff which has in some cases resulted in people “timing out” of their right of access. Dr Duffy’s contribution to the review has not yet been published either.

While we await sight of the full report, these details indicate that the mandatory three-day waiting period has been operating as a significant barrier to abortion access since the current law came into effect in January 2019. Where did this requirement come from and how did it make its way through the legislative process, given the resounding result of the referendum in which two-thirds of the people voted in favour of constitutional change allowing for a radical liberalisation of the law?

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Neither the 2016 Citizens’ Assembly that recommended repealing the Eight Amendment nor the Oireachtas Committee that considered its findings made any mention of a mandatory three-day – or any – waiting period to access an abortion.

Following receipt of the Citizens’ Assembly and Committee’s reports, the Minister for Health at the time, Simon Harris, initiated the referendum process. In advance of the referendum, government published the scheme it intended introducing if the referendum were to pass. This draft scheme included, for the first time, mention of a mandatory waiting period. Following the successful referendum, the waiting period was included in the new legislation, the Health (Regulation of Termination of Pregnancy) Act 2018.

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This three-day waiting period was a significant departure from the recommendations of the Citizens’ Assembly and Joint Oireachtas Committee and there is little publicly available information on the reasoning behind its inclusion in the legislation. Its inclusion sparked heated exchanges in parliament. Billy Kelleher, a Fianna Fáil TD at the time, stated: “To be honest with the House because I would like to be honest in this debate, and I think we should all be honest about it, this was inserted primarily to address concerns of the Tánaiste and Minister for Foreign Affairs and Trade, Deputy Coveney, last March … There is no clinical or other evidence to suggest why it could be in there.” The provision was even nicknamed the “Coveney cooling-off period” by some.

Various parliamentarians throughout the debates voiced their dissatisfaction with the three-day waiting period, noting that it does not serve any medical purpose, is not evidence-based and did not form part of the recommendations of either the Citizens’ Assembly or the Committee. Nonetheless, the government was steadfast in its inclusion and it was ultimately enacted.

The Citizens’ Assembly and Oireachtas Committee both undertook a rigorous examination of the state of the law and put immense effort into their respective recommendations. Both heard from a variety of legal, medical and ethical experts, advocacy groups on both sides of the debate, people with experience of the law, and both undertook in-depth deliberation and debate before issuing their advice to government on how to reform the law. Both forums undertook their work in public, with proceedings live-streamed and documentation published on their respective websites.

It is plain from an examination of the abortion reform process that the three-day waiting period did not receive the same level of detailed and rigorous discussion and deliberation as the other elements of the new scheme, and from what publicly available information there is, it seems to have been included at a late stage of the process, to garner the support of a reluctant member of cabinet.

What is the point of investing time and resources into deliberative processes like the Citizens’ Assembly, and connecting them to parliamentary committees, ostensibly for the purpose of enhancing democratic legitimacy and transparency around how we make collective decisions, if vital aspects of the law are then going to be negotiated and agreed in government backrooms, where the public (and wider members of parliament) have no opportunity to input?

It is likely that the impending review of the law, when it is published, will indicate that the three-day provision is, as feared at the time, causing a barrier to women in need of abortion services at a most vulnerable time in their lives. There are women in abusive relationships for whom one trip to the doctor may be a risk, let alone two. There are those in certain parts of the country who cannot access the services they need and are then at risk of “timing out” and being forced to travel for abortion care, and others still who are unable to travel and are therefore trapped with an unwanted pregnancy – the very circumstances that the referendum sought to address. The three-day waiting period should be removed from the legislation without delay, and government should in future be held to a higher standard of transparency where it chooses to depart from considered citizen recommendations.

Seána Glennon is a lawyer and Chief Outreach Officer at UCD’s Centre for Constitutional Studies, currently a visiting scholar at Osgoode Hall Law School, Toronto