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Explainer: Here's what the proposed legislation says about abortion up to six months

New billboards launched this week have raised questions about access to terminations after 12 weeks if the Eighth Amendment is repealed.

Image: Leah Farrell/RollingNews.ie

AS THE EIGHTH REFERENDUM approaches, questions have been raised about how later term abortions would be handled in this State if the Eighth Amendment is repealed and the Health Minister’s proposed legislation is approved.

New billboards from the Save the 8th campaign show a young baby, with the caption: “I had no idea…They want to legalise abortion up to 6 months”.

The billboards were launched this week, along with a position paper on the provision for terminations after 12 weeks that is included in draft legislation proposed by Health Minister Simon Harris.

The bill proposes to legalise abortion up to 12 weeks in all circumstances.

Yes campaigners, including Minister Harris himself, have said there will be an effective ban on late-term abortions - terminations that take place after the foetus is viable.

Responding to the new billboards yesterday, Professor Louise Kenny said:

“Beyond 12 weeks, termination will only occur in exceptional circumstances – specifically if there is a grave risk to the health or the life of the woman, or if there’s a significant foetal life-limiting abnormality.

“Therefore I don’t know why the Save the 8th side and their protagonists are claiming that we would terminate healthy foetuses on spurious ground up to 24 weeks. The proposed legislation is quite clear.

The worst thing for me is to talk about six months of pregnancy and yet have a six-month-old baby conflated on the poster. I think the Irish people are actually quite intelligent and they’ll see what that is, it’s a manipulative visual ploy. The babies and foetuses that are on the posters are not representative of my reality in the job that I do.

What are these new billboards about?

Head of communications for the campaign, John McGuirk, told reporters that the provision allowing terminations up to viability in limited circumstances “has not been discussed” and “all of the media attention so far has been on the 12 weeks provision”.

No one has talked about what happens after that and, by and large, the government has been allowed to get away with saying it will be very restrictive after that…

He said it is important to note that this provision covers a serious risk to the woman’s health, including a serious risk to her mental health, as a reason for a termination after 12 weeks.

There is a similar provision in the UK abortion legislation. It allows for a termination in cases where the pregnancy has not exceeded the 24th week [the six month of pregnancy], but where the continuance of pregnancy would involve greater risk to the woman’s physical or mental health than if it was terminated.

McGuirk pointed out that mental health was the reason for 97% of abortions in the UK in 2016.

However, he later acknowledged that in the majority of these cases in Britain, the termination occurs before 12 weeks. UK figures for 2016 show that 92% of abortions were performed under 13 weeks’ gestation.

McGuirk said the government will try to argue that there is a “substantial difference” between the UK legislation and the proposed legislation for Ireland, as the bill here states there must be a “serious risk” to the woman’s health

He said the Yes campaign sees this provision as too restrictive and Save the 8th is concerned that access to later-term abortion could increase in the future, if the Eighth Amendment is removed from the constitution.

McGuirk said the public is “angry” about the lack of information being provided about access to terminations after 12 weeks and the point of the new billboards is to start that conversation.

So what does the draft legislation say about terminations after 12 weeks?

In the proposed legislation, Head 4 deals with these situations.

It states:

It shall be lawful to carry out a termination of pregnancy in accordance with this Head where two medical practitioners certify that, in their reasonable opinion formed in good faith:

  • there is a risk to the life of, or serious harm to the health of, the pregnant woman,
  • the foetus has not reached viability, and
  • it is appropriate to carry out the termination of pregnancy in order to avert that risk.

Of the two medical practitioners, one would be an obstetrician. The second would be a practitioner appropriate to the situation.

The two doctors would have to agree that all three of the above conditions were being met.

Would this affect many cases?

Government ministers, as well as experts in the area of obstetrics, have stressed that terminations after 12 weeks will only occur in small numbers and under strict conditions.

Taoiseach Leo Varadkar last week made reference to the provision for terminations after 12 weeks.

He stressed that late-term abortions will be illegal in Ireland if the Eighth Amendment is repealed, and Minister Simon Harris’ draft legislation is approved:

A spokesperson for the Minister for Health explained how this legislation would work in the small proportion of cases where it would be required:

In cases where there is a risk to the life, or of serious harm to the health, of a woman, termination would not be lawful beyond viability. The viability of the foetus would be assessed and agreed by two doctors, one of whom would be an obstetrician/gynaecologist.
If viability is established and the pregnancy is ended on health grounds, then it will be done through early delivery, with a full medical team on hand.

When is viability and when would early delivery kick in?

The spokesperson said Dr Peter Boylan, chair of the Institute of Obstetricians and Gynaecologists has said that once viability is reached, the pregnancy would end in a delivery rather than an abortion.

Dr Boylan has spoken in the past about the limited circumstances in which an abortion would be performed after 12 weeks.

“Viability has moved back from 28 weeks when I was training, now to 23 or 24 weeks,” he explained earlier this month.

There is no saying that it won’t go further and if we have legislation, then we can reduce the time limit by which an abortion would be legal. In other words, that foetal viability will be the measure of, beyond which, babies will be delivered and not aborted.

This means that under the legislation, a termination could only be carried out in these limited circumstances between 12 and 24 weeks, if the foetus has not reached viability.

These terminations would be surgical procedures carried out under general anaesthetic and the pregnancy would be removed through the cervix by a special forceps.

If it has reached the stage of viability, there would be an early delivery by  Caesarean section and practitioners would provide medical care to the premature baby.

Speaking to TheJournal.ie, Dr Mark Murphy, a GP who is involved in the Together4Yes campaign, pointed out that a termination in cases where the pregnant woman is suicidal is already legal in Ireland under the Protection of Life During Pregnancy Act. He said there have been “one or two cases a year” since this legislation was introduced.

“After 12 weeks, for the very few indications for life-threatening illness, often in an emergency obstetrics setting, it will be a surgical delivery as is done at the moment,” he said.

“This is  a small country and under this legislation abortion is essentially ruled out after 12 weeks pregnancy except in situations of life-threatening pregnancy. It won’t really be a material issue, [focusing on] six months is an absolute misnomer.”

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