A BILL TO amend abortion legislation that was rejected in the Dáil on Wednesday has caused considerable controversy online, with many commentators suggesting it would remove all limits on women who choose to terminate their pregnancy.

Some of these posts are misleading. Others are just blankly false.

The narrow 73-71 vote on Wednesday was the closest in this Dáil’s session, according to the Irish Times.

Such a close vote on potential abortion legislation is significant, but according to how it was presented by some on social media, it appeared that wider society had barely noticed a near total change in Ireland’s treatment of abortion.

“The vote was 73 against and 71 for abortion up until birth. That’s 71 members of Dáil Éireann that were fine with a girl or boy being killed right up until birth”, political activist and businessman Declan Ganley said on X the night after the vote.

The same claim that TDs had voted to “kill children up to birth” were echoed in the following days on X by Dublin City Councillor Malachy Steenson, the website TheLiberal.ie, and many other accounts, including of former political candidates.

If these posts were true, Ireland was just two TDs away from changing to perhaps the most permissive state for abortion in Europe.

The vote was not to pass legislation, but was rather a procedural vote to revive a lapsed bill that would still have to undergo multiple further stages of scrutiny. And while the bill would have loosened restrictions on abortions, serious limits would still be in place. For example, while the changes could allow pregnancies to be terminated at any stage, it would do so only in cases of a serious medical crisis.

Current legislation already allows for such terminations, though under narrower conditions.

To understand these changes, it is necessary to compare the proposed changes to how the law currently stands.

The Law

The Health (Regulation of Termination of Pregnancy) (Amendment) Bill 2023 was introduced to the Dáil by five TDs associated with People Before Profit–Solidarity in February 2023, though little headway has been made on it since that year.

It proposes four changes to the 2018 act that regulates abortion in Ireland. 

Under current Irish law, a pregnancy can be terminated before 12 weeks.

The bill proposed that this limit be changed until “the foetus has not reached viability” as well as deleting sections that this change would effectively make obsolete.

In the current legislation, viability refers to the point where “the foetus is capable of survival outside the uterus without extraordinary life-sustaining measures”.

The point of foetal viability varies, and relies on medical judgement. But, in effect, this change would extend the period in which most pregnancies could be terminated to at least 22 weeks — a significant change, but not close to abortions up to birth.

However, there were more submitted amendments.

Currently, under Irish law, a pregnancy can be terminated beyond 12 weeks if an obstetrician and another medical practitioner agree that doing so would remove “a risk to the life, or of serious harm to the health, of the pregnant woman” and that “the foetus has not reached viability”.

The bill would have removed this last condition, meaning that a foetus could be terminated even after it becomes viable, but only in cases where the pregnancy poses “a risk to the life, or of serious harm to the health, of the pregnant woman”.

The current law also states that a termination can be performed after 12 weeks if an obstetrician and another medical practitioner agree that the foetus is likely to die before being born, or within 28 days of birth.

The bill proposed that this period of 28 days be extended to a year. So, if this bill were passed, pregnancies could theoretically be terminated up to birth, but only in cases where the foetus has a fatal condition, which is already the case in current Irish law.

Criminalisation

Lastly, under current Irish law, terminating a pregnancy in any way other than described in the 2018 Act is a criminal offence. So too is it an offence to supply any drugs or equipment to carry out abortions, or “to aid, abet, counsel or procure” a woman to terminate her pregnancy.

These offences don’t apply to a pregnant woman in regard to her own pregnancy, but other people can be punished by up to 14 years in prison for these transgressions.

The bill proposed that this entire section be scrapped.

This last amendment appears to be where much of the controversy comes from.

When the bill was introduced, Deputy Peadar Tóibín, one of the bill’s detractors, told the Dáil that, “this will leave no real sanction to prevent an abortion, thereby allowing for abortion up until birth”.

Similarly, when asked for comment, Declan Ganley described the proposal as “a most extreme bill which sought to decriminalise abortion throughout all nine months of pregnancy.”

Conversely, the bill’s supporters say that abortions would be “treated like any other medical procedure”, and while some restrictions still apply, it would not fall under criminal law by default.

If the state removes criminal sanctions for providing abortions, is that the same as “legalising” it as some social media comments suggest?

In short: no. There is a difference between decriminalisation and legalisation.

For example, in Ireland, prostitution is technically decriminalised (for the sex worker). However, it is still a far cry from being legal and sex workers say that they are still often prosecuted for other crimes, such as brother keeping when using a shared building.

The system of parking restrictions that incur fixed fees, common in Ireland, are also effectively “decriminalised“; no criminal proceedings can be taken unless the person who parked unlawfully fails to pay a fine.

So while the bill proposed that disobeying the 2018 legislation should no longer lead to a hefty jail sentence, this is not the same as saying that the law could be broken with impunity.

In addition, other sections of the current legislation on criminal offences for terminating pregnancies would still remain, such as laws against profiting from arranging abortions, as well as against corporate bodies that would allow it. Individuals would not be able to make money by carrying out or providing drugs or equipment for abortions, or arranging them, even outside the state.

And organisations would not be able to allow such profiteering, even by “wilful neglect”.

Doctors carrying out unlawful, but not criminalised abortions, would still be subject to the ethical guidelines of professional bodies, which usually specify that they must obey the law, as well as the Medical Practitioners Act 2007.

However, they would not face the current maximum penalty of 14 years in prison.

The vote

To recap: a bill proposed that abortions would only be able to be carried out up to birth in cases where the foetus has a fatal condition (which is already the case, though with stricter criteria) or where the pregnancy poses a serious health risk to the mother.

Other changes include extending the period in which “early pregnancy” abortions are allowed up from 12 weeks, as well as removing some criminal sanctions for breaking the 2018 legislation.

Saying the bill allows “a girl or boy being killed right up until birth”, as some described it, is misleading. However, the bill would still have been a radical proposal to almost make it into law. How close did it come?

Not nearly as close as the 73-to-71 vote mentioned on social media might make it appear.

In 2023, the bill passed the second stage in the Dáil (which, at the time, also caused confusion about how close it came to becoming law).

However, bills must pass five stages in the Dáil before being sent onto the Senate. There they must undergo yet another five stages of scrutiny.

You can read more on that process here.

Passing the second stage should have meant that the bill would be sent to be investigated by the health committee.

However, it is common for bills that have advanced to committee stage in the Dáil to later be amended, voted down, or delayed until they become defunct.

This is, in essence, what had happened. When the Dáil ended before the last general election, the unpassed bill lapsed.

The vote on Wednesday was not to change the law, nor even to advance the bill to a further stage. Instead, it was simply to restore the bill so that a Dáil committee could scrutinise it further.

If the bill had been restored, it would still have to pass through nine more stages before making a change to the law.

Ganley told The Journal he believed “a vote for the motion to restore the bill to committee stage is effectively a vote for, or endorsement of the bill,” saying the vote demonstrated a “need for more pro-life TDs in the Dáil.” 

The controversy surrounding the vote illustrates how a misunderstanding of the Irish legislative system can allow procedural votes and debates — particularly regarding polarising issues such as abortion — to be misrepresented as dramatic upheavals to the law.

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