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Should the mandatory three-day wait for abortion be lifted? Dr Mary Favier and Eilís Mulroy debate

It’s a year since barrister Marie O’Shea submitted a review to Government on the adequacy of the State’s abortion laws. One of the report’s recommendations was the removal of the mandatory three-day waiting period

Attention is once again on the mandatory three-day waiting period before an abortion. PA Wire/PA Images

Mary Favier
Eilis Mulroy
Tue Apr 23 2024 - 06:00

Dr Mary Favier: Yes. If a woman finds out she is pregnant in week 10 or 11, the three-day wait becomes very problematic

Women are still leaving Ireland for abortion – at least 860 women since the Eighth Amendment was repealed. Many of these women are pushed over the 12-week limit by the mandatory three-day wait, which is not medically sound or necessary.

In my practice, like many GPs, I see people who find out they are pregnant close to the 12-week limit. This can happen for any number of reasons, including irregular periods; contraceptive failure unbeknown to someone; people having busy lives; or mistaking the symptoms of pregnancy for something else. If a woman finds out she is pregnant in week 10 or 11, that is when the three-day wait becomes very problematic. If she comes up against services that are booked up, or close to weekends and public holidays, she can easily be pushed over the limit and be left without access to care.

There is no medical justification for this delay. Before even contacting abortion services, usually through MyOptions, most women will have taken considerable time to reflect and make their decision. Good medical practice will also ensure the person has fully understood their decision. But imposing this mandatory wait on every woman, by law, demeans women and ties the hands of medical professionals, who try to assist while acting within the law. It is not medically sound, evidenced-based or aligned with international clinical best practice. The World Health Organisation recommends against mandatory waiting periods.

Over a year ago, Dr Marie O’Shea conducted an extensive independent review of abortion services, including talking to those women accessing abortion services and providers of the services, and she clearly made the case that this paternalistic wait period be removed.

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In her review, she also recommended the decriminalisation of abortion. This is important because after 12 weeks, abortion is a criminal offence outside of certain limited circumstances, carrying a 14-year prison sentence. Those circumstances include cases of fatal foetal anomalies where two doctors must certify that the condition will result in death of the foetus before it is born or within 28 days of birth. This is almost impossible to implement in clinical practice as there is no definitive list of conditions where death occurs in utero or within 28 days of birth.

The result is that clinicians err on the side of caution due to the criminalisation of abortion. This leads to heartbreaking situations for many women and couples. Faced with the devastating news that their much-wanted child may not survive, they are then told that if they choose to have an abortion, they will not receive the care they need at home. This is deeply stigmatising for both service providers and for women, who alongside a significant loss, must then face the stress of booking travel, accommodation and a medical procedure abroad.

Women in these circumstances shared their heartbreaking stories during the Repeal campaign, and many voters were thus convinced that the law needed to change because of their courage in speaking out on the huge barriers they faced. Yet women like these are the very ones still forced to travel for care.

More than 90 per cent of abortions take place in a primary care setting and this new service has been successful. However, GPs who provide this service are grappling with a lack of national focus on gaps in the service such as barriers to access in remote areas, access to training and clinical guidance that should be facilitated by a primary care clinical lead. They also continue to risk protests outside their clinics due to lack of Safe Access Zone legislation in Ireland.

I signed a letter to An Taoiseach Simon Harris, alongside other doctors, advocates, frontline service providers, academics and women’s groups. We appealed to him that urgent action is needed to appropriately support women and pregnant people seeking abortion in Ireland. This includes decriminalisation, removing the mandatory three-day wait, addressing geographical black spots, providing training at primary care level, implementing safe access zones, and reviewing the criteria for abortion after 12 weeks to ensure all women can access reproductive healthcare at home in Ireland. What needs to change has been well documented in the O’Shea review. It is now time for political action.

Dr Mary Favier is a member of Doctors for Choice and Start abortion providers group.

Eilís Mulroy: No. A period of reflection is empowering and enabling for many women

Efforts to remove the three-day period of reflection before an abortion have garnered attention arising from the recommendations of the report of the Three Year Review of the abortion law, overseen by barrister Marie O’Shea. The Review, mandated by the 2019 abortion legislation, contains sweeping and very troubling recommendations in its final report. The recommendation to remove the three-day wait, however, has received the most media coverage.

During the 2018 abortion referendum, senior government figures promised that a three-day waiting period would be included in any new law. Some members of the Oireachtas Health Committee tasked with reviewing O’Shea’s recommendations noted that removing the three-day wait would amount to “a substantial departure from the proposals presented to the electorate before the May 2018 referendum”. There is no question that many people voted Yes as a result of the promise of such “safeguards”. Removing these safeguards would only serve to further erode trust in our politicians.

The life-saving impact of the three-day wait cannot be overstated. Waiting periods before an abortion are well established internationally. But when asked at an Oireachtas Health committee meeting on October 18th, 2023 if any jurisdiction besides Ireland has a similar requirement for a mandatory three-day wait O’Shea replied, “not to my knowledge”. She should have known that waiting periods are normal. For example, there’s a seven-day wait in Italy, a six-day wait in Belgium, a three-day wait in Germany. Ireland is not an outlier in this regard.

O’Shea’s arguments have been unpersuasive. On May 31st, 2023, at another Oireachtas Health Committee meeting, she admitted that before recommending the removal of the three-day waiting period she didn’t interview a single one of the huge number of women who availed of it and decided to keep their baby. Surely the views of these women deserved to be included?

I know someone who attended the first abortion appointment with her friend, and during the short waiting period they discussed together ways in which her friend’s parenting might be supported, the childcare options available to her, and other supports. That child is alive and in his mother’s arms today. The three-day wait saved him from abortion and also saved his mother from the pain and regret that abortion often brings.

There are countless situations in life where we are encouraged to take a little extra time to weigh up our options. Leaving Cert students are advised repeatedly to consider carefully what they want to do after school and whether to opt for a PLC course, a gap year or a college course. As with lots of decisions in life, if one avenue doesn’t work out, the student can redirect, recalibrate and choose something else.

Not so with abortion. An abortion is irreversible. The decision is absolutely final. There is no changing course. There is no choosing another option. There is no going back. There is a good reason why women considering an abortion should avail of a time of reflection. It gives time to take a breath when feeling vulnerable or under pressure. It gives time to consider the life-changing decision that abortion is.

There are many women – some are involved in the pro-life movement – who wish that they had been given that time or that someone had offered them support and solidarity when they were in that vulnerable and often dark place of unplanned pregnancy.

A period of reflection is in fact empowering and it is enabling for many women as the evidence bears out. The Government has no mandate to amend the abortion legislation to remove the three-day wait, no mandate from voters and a lack of unanimity from the Oireachtas Health Committee.

It’s time to interrogate our soaring abortion numbers instead and look at ways to positively support women in unplanned pregnancy.

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Eilís Mulroy is a solicitor and CEO of the Pro Life Campaign

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