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Q&A: Why has the government chosen 12 weeks as the general time limit for abortion?

The use of abortion pills and pregnancy as a result of rape impacted the decision.

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In our Q&A: Eighth Amendment Referendum series, we are answering questions our readers have submitted in relation to the upcoming vote on 25 May.

THE QUESTION

A number of people have asked a version of this question. Here are some of those queries: 

  • My concern is the 12-week timeframe. I think it should be less. Why 12 weeks and if the Repeal is passed, what’s the likelihood that while abortion will be allowed, strict rules will apply to who and when? 
  • Why are the government proposing a period of 12 weeks at the beginning of pregnancy during which a pregnant person can access an abortion for any reason they wish?
  • Why is 12 weeks seen as the time limit to when an abortion is safe to perform?
  • My main query is the unrestricted abortion for up to 12 weeks. Does that mean anyone can have abortion, or are there conditions?

THE ANSWER

IF THE EIGHTH Amendment is repealed in the referendum on 25 May, legislation in relation to the provision of termination of pregnancy will be enacted.

The government has published draft legislation to help inform people of what this could look like.

In line with what the Oireachtas Eighth Amendment Committee recommended, the government plans to bring in new laws that would allow abortion without restriction up to 12 weeks of pregnancy  – again, only if the Eighth is repealed – through a GP-led service.

The draft legislation will have to be debated and signed off on by both houses of the Oireachtas (the Dáil and the Seanad). Elements of it may change during this process. You can read more about how a Bill becomes a law here.

On 25 May, Irish people will have the opportunity to vote in a referendum asking whether or not the Eighth Amendment, Article 40.3.3 of the Constitution, should be repealed.

The amendment gives equal constitutional status to the mother and the unborn and effectively bans abortion from taking place legally in most scenarios in Ireland. The ballot paper will not mention anything about the potential legislation that could follow. So it will not say anything about a 12-week time limit.

However, Head 7 of the draft legislation, approved by the Cabinet in March, states the following in relation to “early pregnancy” (that is, up to 12 weeks’ pregnancy):

1. It shall be lawful to carry out a termination of pregnancy in accordance with this Head where a medical practitioner certifies, that in his or her reasonable opinion formed in good faith, the pregnancy concerned has not exceeded 12 weeks of pregnancy.

2. It shall be necessary for 72 hours to elapse between the time of the certification referred to in subhead (1) and the termination of pregnancy being carried out.

3. The medical practitioner referred to in subhead (1) shall make such arrangements as he or she shall deem to be necessary for the carrying out of the termination of pregnancy as soon as may be after the period referred to in subhead (2) has elapsed but before the pregnancy has exceeded 12 weeks of pregnancy.

4. For the purposes of this Head, “12 weeks of pregnancy” shall be construed in accordance with the medical principle that pregnancy is dated from the first day of a woman’s last menstrual period.

Under the proposed legislation, abortion will be permitted after 12 weeks’ pregnancy under strict conditions in limited circumstances, such as when the woman or girl’s health or life is at risk. You can read about this in detail here.

Quick guide: pregnancy v gestation 

Pregnancy is the state of carrying a developing embryo or foetus within the female body, while gestation is the process or period of developing inside the womb between conception and birth.

In both medicine and law, pregnancy begins on the first day of a woman’s last period. So, a woman might not be physically pregnant in the first week or two of her pregnancy.

In the proposed draft legislation that could become law in the event of a Yes vote, it clarifies that the 12-week time limit where women would be able to get an abortion refers to pregnancy (again, that means the woman may not be pregnant for the first two weeks):

“It shall be lawful to carry out a termination of pregnancy in accordance with this Head where a medical practitioner certifies, that in his or her reasonable opinion formed in good faith, the pregnancy concerned has not exceeded 12 weeks of pregnancy.”

For the purposes of [Head 7] ―12 weeks of pregnancy shall be construed in accordance with the medical principle that pregnancy is dated from the first day of a woman’s last menstrual period.

For many women, the first sign of pregnancy is a missed period in week five.

Speaking to reporters in February, Taoiseach Leo Varadkar said the 12-week limit was “not plucked out of the air”.

The government settled on 12 weeks of pregnancy as the general limit after taking into consideration the recommendations made by the Oireachtas committee and the Citizens’ Assembly, which had both heard from legal and medical experts, as well as people with direct experience related to the Eighth Amendment, over the course of several months.

When time limits were being discussed by the committee, a number of issues were considered including:

  • women and girls buying abortion pills online;
  • the difficulty legislating for cases involving rape or incest – scenarios that are often difficult and traumatic to prove, and may also lead to a court case as the accused has a right to defend themselves (more on that below).

One of three major milestones

Speaking about why the 12-week limit was chosen, the Institute of Obstetricians and Gynaecologists noted that 12 weeks is “one of three major milestones in pregnancy”.

In a statement, the Institute explained: “The period up to 12 weeks is termed early pregnancy. The other major milestones are viability – or the possibility of survival outside the womb – at approximately 23 to 24 weeks, and term at 37 to 42 weeks when foetal development has been completed.”

The Institute noted that 12 weeks is a milestone because most miscarriages occur during this period, adding that this is “in fact usually 10 weeks after conception since pregnancy is dated from the first day of the last menstrual period and conception usually occurs two weeks after this date”.

“Up to 50% of pregnancies miscarry in the first four weeks, typically before a woman is aware that she has conceived. Of the 50% that progress beyond four weeks, there is a significant further rate of miscarriage heavily influenced by the age of the woman.”

For example, a 30-year-old woman has approximately a 10% chance of miscarrying, whereas a 40-year-old woman has at least a 35% of miscarrying. This risk increases sharply each subsequent year, reaching 75% from the age of 45.

Terminations in the UK

The vast majority of terminations carried out in the UK, where most women and girls from Ireland travel for abortions, occur in the early stages of pregnancy.

Figures from the UK Department of Health show that 190,406 abortions were reported as taking place in England and Wales in 2016 – of which 185,596 involved residents of England and Wales. Most of these (92%) were performed under 13 weeks of pregnancy.

20180430_Abortion_1 Source: Statista.com

Some 3,265 females travelled from Ireland to the UK for abortions in 2016, the latest year for which statistics are available. That means Irish females accounted for almost seven in 10 (67.9%) of the non-resident abortions carried out in Britain that year.

Some 85% of these terminations took place within 12 weeks of gestation, with the majority of these (2,256) taking place within the first nine weeks.

Abortion pills 

Speaking about the impact abortion pills had on the committee’s decision to back a 12-week limit, the Institute of Obstetricians and Gynaecologists noted how the committee had “expressed its concerns about the increasing use of abortion pills by women in Ireland which are purchased illegally over the internet, therefore with no certainty as to their origin and quality”.

“Licensed pills are safe and effective when taken under medical supervision. They are now commonly used in medical termination up to 12 weeks of pregnancy in countries where termination of pregnancy is legal.

However, when taken without medical supervision, there are significant risks. Women may take the wrong dose and may be afraid to seek medical assistance if complications arise.

About three women in Ireland order abortion pills online every day (a further nine travel abroad for a termination).

The abortion pill is used in the early stages of pregnancy through the use of two medications: mifepristone and misoprostol.

Mifepristone blocks the production of progesterone, the hormone that supports the pregnancy before the placenta is developed. Misoprostol then causes the uterus to contract, causing cramping, bleeding and the loss of the pregnancy in a similar way to a miscarriage.

Different doses are prescribed depending on the stage of pregnancy. Medical termination can be completed in a community and home setting before 12 weeks, with only occasional requirement for hospital facilities.

As explained by the British Pregnancy Advisory Service, which has been providing terminations for women and girls from Ireland since 1968, the type of medical abortion carried out depends on the stage of the pregnancy:

The abortion pill – up to 10 weeks of pregnancy

Medication is used to cause an early miscarriage (you may experience cramping pain and heavy bleeding). You may need two visits to the clinic, which may be in one day (six hours) or up to three days apart – check with the contact centre when booking. No surgery or anaesthetic is involved.

We recommend that you do not travel until the pregnancy has passed (90% of women will pass the pregnancy within four hours of taking the second medication).”

Abortion pill – between 10 and 24 weeks of pregnancy 

Medication causes the womb to contract and push out the pregnancy. From 22 weeks an injection to the womb may be required. At least two visits to the clinic are required. Sometimes an overnight stay at the clinic is needed at the second visit.

More information on surgical abortion can be read here.

Pregnancy as a result of rape

The Oireachtas committee discussed pregnancy in the cases of rape at a number of its hearings.

In October, Noeline Blackwell, Chief Executive Officer of the Dublin Rape Crisis Centre, told the committee: “We have no reliable national data on the prevalence of pregnancy as a result of rape.

However, from our own statistics over 11 years, and also using the statistics from the Rape Crisis Network of Ireland (RCNI) which collected from a number of other rape crisis centres, it seems that approximately 4% of the total number of female victims/survivors who presented to rape crisis centres report pregnancies as a result of rape.

“Of that 4%, a little over one-third of DRCC clients went on to parent while a little less than one-third terminated their pregnancy. The RCNI figures show almost half went on to parent, and a little less than 20% terminated their pregnancy.”

Blackwell told the committee that 11 women disclosed pregnancies as a result of rape to the DRCC in 2016.

The outcomes in these cases were as follows:

  • Parenting: 4
  • Termination: 3
  • Miscarried: 1
  • Adopted: 1
  • Fostered: 1
  • Unknown: 1

“These statistics do not indicate a victim/survivor’s choice, but merely of the ultimate outcome. The figures may relate to recent or historic pregnancies,” Blackwell stated.

Discussing the prevalence of rape and sexual violence, Blackwell noted a 2014 survey undertaken by the European Union Agency for Fundamental Rights found that about 2% of women aged 18-74 in the EU experienced sexual violence in the previous 12 months.

From DRCC’s own evidence, most rape and serious sexual violence is perpetrated by someone known to the victim.

“The DRCC statistics for 2016 identified that just under 17% of adult rape and sexual assault was perpetrated by the client’s spouse or partner, 2% by other family members and almost 46% by other known persons.

“This includes friends, recent dates, workmates and the like. About 50% of childhood sexual abuse revealed to us by adults was perpetrated by a family member,” Blackwell said.

The Citizens’ Assembly recommended that the termination of pregnancy on the grounds of rape be lawful up to a 22-week gestational limit.

The Oireachtas committee’s final report states: “While the Committee accepts that it should be lawful to terminate a pregnancy that is the result of a rape or other sexual assault, it has concerns about whether the recommendation of the Citizens’ Assembly can be implemented in practice.

These concerns arise from:
(a) the difficulty presented in the verification of a rape or sexual assault, and
(b) the opinion of the Committee that:
(i) there is a need to avoid the further traumatisation of a victim of rape or sexual assault that would arise
if some form of verification was required;
(ii) a requirement for a verification process is likely to be complex or even unworkable in practice.

In its report, the committee also noted the “underreporting of rape and sexual offences to An Garda Síochána and the authorities generally in Ireland”.

“The Committee understands why some women find it difficult or impossible to report rape or sexual assault and is accordingly of the opinion that it would be unreasonable to insist on reporting as a precondition for exercising any right to terminate a pregnancy that has resulted from rape or sexual assault.

The Committee is further of the view that where a woman is concerned that she may be pregnant as a result of a rape or sexual assault, she should have immediate access to appropriate services.

The committee noted that, “in view of the complexities inherent in legislating for the termination of pregnancy for reasons of rape or other sexual assault”, it is of the opinion that it “would be more appropriate to deal with this issue by permitting termination of pregnancy with no restriction as to reason provided that it is availed of through a GP-led service delivered in a clinical context as determined by law and licensing practice in Ireland with a gestational limit of 12 weeks”.

The government, when drafting its legislation, changed this to 12 weeks’ pregnancy or 10 weeks’ gestation.

If you have another question, please send it to referendum@thejournal.ie.

Source: TheJournal.ie/YouTube

The content of this article may be distressing for some readers. If needed, you can contact the Dublin Rape Crisis Centre on its 24-hour helpline: 1800 77 88 88 (more info here). 

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Órla Ryan

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