Providing abortion care: Navigating the regulatory framework

Abstract

Abortion care in Ireland is heavily regulated when compared with other forms of healthcare and the decisions that providers make in navigating this environment have an important impact on access to abortion care. This article explores the regulatory framework from a provider perspective, analysing the Health (Regulation of Termination of Pregnancy) Act 2018 and other regulatory elements including the Medical Council Guide to Professional Conduct and Ethics for Registered Medical Practitioners (9th ed., 2024); the Health Services Executive Model of Care; and clinical guidance. Drawing on a qualitative study relating to early medical abortion in primary care conducted by the authors in summer 2022, the article uses a legal consciousness framework to explore how providers engage with the Health (Regulation of Termination of Pregnancy) Act 2018 in their clinical practice. The findings from this study support the case for legislative reform. However, the article also argues that access can be substantially improved through the development of clear guidance that prioritises a commitment to women's autonomy and health and is informed by the experiences of service users and providers.

Introduction

Abortion care is heavily legally regulated when compared with other forms of healthcare. Sometimes this abortion ‘exceptionalism’ (Corbin, 2014: 1176) reflects a view that providers of this care are somehow less reliable or trustworthy than other health service users/healthcare providers. Sometimes it reflects political compromises made during the legislative process (de Londras, 2020; McGuinness and Thomson, 2015: 188). And sometimes, too, as with Targeted Restrictions on Abortion Providers laws in the United States, it reflects a deliberate use of the law to make service provision unworkable (Siegel, 2021). The ‘chilling effect’ of this heavy regulation, and the corresponding impact on access to abortion care, has been frequently identified, including by the European Court of Human Rights (Scott, 2016). This kind of intrusive regulation is a feature of the Health (Regulation of Termination of Pregnancy) Act 2018 (HRTPA), where it is given effect in a range of ways. These include a 3-day waiting period for early medical abortion (EMA); reporting requirements; and the possible criminalisation of medical practitioners who provide abortion care. Providers have to navigate this heavily regulated environment every day and the decisions they make in doing so have an important impact on access to abortion care (Krajewska, 2022; Macintyre, 1973; Romanis, 2023).

As any socio-legal scholar can demonstrate, the law produced by legislators is not fixed and immutable but rather better viewed as ‘a process of ongoing production’ (Cloatre and Cowen, 2018: 441). As described by Sally Sheldon et al., referring to the Abortion Act 1967 (UK):

Even when a statute's text remains unchanged, its acquisition of legal meaning is an ongoing process, which involves interpretative work; development and consolidation of received understandings; evolving practices; and moments of challenge, rupture and revision. (Sheldon et al., 2019: 20)

This means that those who give effect to a law in practice have a degree of agency in how that law develops (Halliday and Morgan, 2013). We can see this played out in the long history of the Abortion Act 1967 (UK) where the operation of the Act has changed profoundly over the many decades of its existence notwithstanding that the foundational text remains the same (Lee et al., 2018; Romanis, 2023; Sheldon et al., 2019). This does not, of course, diminish the significance of legislative reform. The fact that legislation has a degree of fluidity does not mean that it is infinitely malleable. In England and Wales, for example, criminalisation of women (which term should be read throughout the article as including people who do not identify as women and who can become pregnant) casts an ongoing shadow and the case for legislative reform has been growing (Sheldon, 2016; Sheldon and Lord, 2023).

As we will see below, several aspects of the HRTPA clearly need reform. Nonetheless, it is useful to examine, in parallel with law reform work, the spaces which exist within the current framework, to interrogate how these are currently filled, and to think about how they might be filled in the future. This article seeks to do this, adopting a legal consciousness approach to its enquiry. Legal consciousness studies (studies of how people understand and work with law; Ewick and Silbey, 1998) have come to play a prominent role in socio-legal research, including research on abortion activism (Wilson, 2011) and on the operation of the Eighth Amendment (Enright and Duffy, 2022). As the field has grown, so too has the range of ways in which legal consciousness studies can be approached (Halliday, 2019). Our approach in this article fits broadly within a ‘law in action’ approach (Halliday, 2019: 867). As described by Simon Halliday, this approach foregrounds the legal consciousness of ‘key actors in the implementation process’ of law (2019: 868). Our aim in this is both to uncover the ‘background assumptions about legality’ (Halliday and Morgan, 2013: 2) that operate in this space and to identify ways in which abortion care providers might be able to claim greater agency.

At the core of the article are the findings of an empirical study conducted by the authors with providers of EMA in summer 2022. However, in order to fully understand how individual providers respond to and make decisions within the current regulatory framework it is necessary to first understand the detail of that framework. This article begins, therefore, by examining the Irish regulatory framework to facilitate understanding of the context within which providers make decisions under the HRTPA.

The legal and regulatory framework

While it is central, the HRTPA is just one element of a broader framework which regulates providers. This includes providers’ medical professional regulation under the Medical Practitioners Act 2007 as well as professional duties of care in contract and tort law (Madden, 2023).

The discussion below separates legal measures from clinical guidance although, as will be apparent, these are in fact closely intertwined.

The legal context

The HRTPA positions medical practitioners as (the only) gatekeepers for pregnant women's access to abortion care under each of the four statutory grounds. Thus, for a pregnant woman to access termination under s. 9, the HRTPA requires that two medical practitioners have certified that there is a risk to the pregnant woman's life or of serious harm to her health; that the foetus has not reached viability and that it is appropriate to carry out the termination in order to avert the risk. In respect of an emergency termination under s. 10, the requirement is that a single medical practitioner has certified that there is an immediate risk to the pregnant woman's life or of serious harm to her health and that it is immediately necessary to carry out the termination in order to avert that risk. For access to termination under s. 11, it is required that two medical practitioners have certified that ‘there is present a condition affecting the foetus that is likely to lead to the death of the foetus either before, or within 28 days of, birth’ (HRTPA, s. 11(1)). Finally, under s. 12, it is required that a single medical practitioner has certified that the pregnancy has not exceeded 12 weeks (dated from the first day of the woman's last menstrual period (LMP) (HRTPA, s. 12(5)). The medical practitioner must also ensure that a period of not less than 3 days has elapsed between the certification and the carrying out of the termination (the ‘3-day waiting period’) (HRTPA, s. 12(3)). In respect of each ground, there is a requirement that the medical practitioner/s have ‘examined the pregnant woman’ and that the certification is based on a ‘reasonable opinion formed in good faith’.

Provision of abortion care outside of these statutory grounds is a criminal offence, potentially punishable by a fine or imprisonment of up to 14 years or both (HRTPA, s. 23(5)). The scope of criminal liability is broad, covering the employment of ‘any means whatsoever to intentionally end the life of a foetus’ (HRTPA, s. 23(1)); the prescription or administration of any drug or substance (HRTPA, s. 23(2)); and, any action to ‘aid, abet, counsel or procure’ a pregnant woman to intentionally end or attempt to end the life of a foetus (HRTPA, s. 23(4)). While pregnant women are exempted from criminal liability (HRTPA, s. 23(2)), there is no exemption for medical practitioners notwithstanding that they are already subject to extensive professional regulation by the Medical Council of Ireland (Medical Practitioners Act 2007), and that their professional obligations, set out in the Guide to Professional Conduct, include a ‘duty to comply with the laws and regulations pertaining to [their] practice’ (Medical Council, 2024: 4).

In addition to their gatekeeper functions, providers are required to report each termination to the Minister for Health within 28 days of carrying out the termination (HRTPA, s. 20(1)). This report must include the provider's Medical Council registration number; the statutory grounds under which the termination was certified; the woman's county of residence or, if the woman lives outside the state, her place of residence; and, the date on which the termination was carried out (HRTPA, s. 20(2)). The Minister is required to provide a report based on these notifications, although this report must exclude information that could reasonably lead to the identification of either the provider or the woman (HRTPA, s. 20(5)).

As well as their obligations under the HRTPA, providers have legal (and ethical) obligations in respect of consent. The HRTPA states that nothing in the Act affects any enactment or rule of law relating to consent (HRTPA, s. 21). Thus, the standard common law and statutory provisions apply. The basic principle is that informed consent must be obtained and that providing medical treatment (which includes abortion care) without such consent gives rise to liability in negligence and, possibly, in battery (Madden, 2023). However, things become more complicated when issues of capacity to consent arise.

The age of consent to medical treatment in Ireland is set at 16 years (Non-Fatal Offences against the Person Act 1997, s. 23) and although there has been some debate regarding the application of this provision outside of a criminal prosecution (Law Reform Commission, 2011: 39–42), this approach to the age of consent is generally accepted in practice and is recognised in the Health Services Executive (HSE) National Consent Policy (2022). The position for under 16s is more uncertain as the Irish courts have not affirmed (or rejected) the ‘mature minor’ doctrine (i.e. that someone under 16 may consent to medical treatment based on the medical practitioner's assessment of their maturity). The lack of a clear legal position creates difficulties where under 16s seek abortion care without parental involvement (Lyons and Donnelly, 2023).

For adults, the Assisted Decision-Making (Capacity) Act 2015 (the 2015 Act) provides a partial framework for consent where a person's capacity is in question or is lacking. This includes a statutory requirement to support the person to make their own decisions and provisions allowing a person to formally appoint decision-making supporters (either a Decision-Making Assistant or a Co-Decision-Maker) to help them make decisions, which decisions could, if the person wishes, include decisions about consent to abortion care. The 2015 Act also authorises the Circuit Court to appoint a Decision-Making Representative to make decisions, which could, if the Court authorised them to do so, include giving consent to abortion care for an adult who lacks capacity. However, the 2015 Act is silent on how decisions should be made where a person lacks capacity to make a decision and one of these decision-making structures in the 2015 Act is not in place (Donnelly, 2016). The HSE National Consent Policy attempts to fill this gap. It states that in non-emergency situations, an intervention may proceed provided that it is in accordance with the person's will and preferences; it is made in good faith and for the benefit of the person; and, consultation required under the Assisted Decision-Making (Capacity) Act 2015 (and any additional consultation with anyone caring for the person or with a bona fide interest in the person's welfare considered appropriate) has taken place (2022 rev’d 2024, para. 6.8). If these conditions are not met, the Policy advises that legal advice should be sought (2022 rev’d 2024, para. 6. 12) and the matter is likely to be referred to the Circuit Court.

Clinical Guidance

Even the brief account set out above reveals many gaps in the legal framework. In respect of the HRTPA, questions arise regarding what an examination requires; how to assess risk and ‘immediate’ risk to life and health; how to measure seriousness of harm; and how to determine likelihood of death. Although the HRTPA affords the Minister for Health broad powers to introduce regulations (secondary legislation) in relation to ‘any matter’ under the Act (HRTPA, s. 3), the Minister has used this power only for technical matters (reporting; certification and review). Instead, operational questions are addressed in the Model of Care (MOC) developed by the HSE in collaboration with various stakeholders, including the Institute of Obstetricians and Gynaecologists (IOG) and the Irish College of General Practitioners, and approved by the Department of Health.

The initial MOC came into effect in January 2019 and has been revised twice; in 2020, to allow for remote consultation in the context of the COVID-19 pandemic (Spillane et al., 2021) and again in 2023, to give effect to some of the recommendations of the Independent Review of the Operation of the HRTPA (‘Independent Review’) (O'Shea, 2023) and to place remote consultation on a permanent footing. It is the MOC which identifies the clinical elements of the time limit for termination in primary care settings (69 days/9 weeks + 6 days LMP) and interprets ‘12 weeks of pregnancy’ in s. 12(1) as 84 days/12 weeks + 0 days LMP. The MOC also addresses consent by minors, stating that young people under 18 years should be encouraged to involve their parents or another responsible adult but that 16- and 17-year-olds should be presumed to be able to consent for themselves and that termination may be provided to someone aged 15 years or under without parental consent in exceptional circumstances (Health Services Executive, 2023: 12). This is broadly in line with the more general position on consent set out in the HSE National Consent Policy (Health Services Executive, 2022: 55).

From a provider perspective, the MOC is given concrete effect in the Interim Clinical Guidance commissioned by the HSE and issued by the IOG (2018, 2019a, 2019b) and, in respect of early abortion, by the ICGP (2021). While this guidance does not have formal legal status, it has enormous practical and regulatory significance, serving as a form of insurance for providers who can point to compliance with the relevant guidance as part of a defence to a legal challenge or fitness to practice proceedings before the Medical Council. As we will see from some of the provider responses below, clear guidance has identifiable benefits in terms of access. For example, the IOG Interim Guidance on Termination under 12 weeks supplements the legislative time limit with a crown-to-rump length (63 mm), based on best medical evidence of the upper limit of foetal size at 12 weeks +  0 days (2018: 10), thus allowing lawful access in situations in which dates are uncertain. This Guidance also contains important information, again based on international best practice, regarding the use of ultrasound scans, most notably that such scans are not mandatory in pregnancies of up to 9 weeks if the woman is sure of dates and there are no indicators of ectopic pregnancy (2018: 10). In a similar way, the Interim Guidance on Management of Fatal Foetal Anomalies and/or Life Limiting Conditions (2019) translates the legal standard into clinically meaningful guidance by setting out a non-exhaustive list of relevant anomalies/conditions which are ‘highly likely’ to lead to death in utero or within 28 days (2019: 13).

Inadequate guidance may also have a negative impact on access. The number of terminations because of a risk to life or health has been small (21 in 2019; 20 in 2020; 9 in 2021; 22 in 2022, 21 in 2023). These numbers are similar to those under the Protection of Life During Pregnancy Act 2013 which did not include any reference to risk of serious harm to health (O'Shea, 2023: 6). This suggests that the statutory entitlement to terminate a pregnancy on the basis of risk to health is not being adequately delivered. One reason for this may be that the Interim Guidance on Risk to Life or Health identifies that such cases provide a ‘unique challenge for the clinician with regard to estimation of risk’ (2019: 12) and then fails to provide any meaningful guidance for clinicians as regards how they might address this challenge.

Providers’ perspectives on the HRTPA

It is incontrovertible that the legal framework for abortion care in Ireland places more demands on providers when compared to other forms of healthcare. In the discussion to follow, we explore how providers understand and respond to these demands.

There is a growing body of literature on the delivery of clinical care under the terms of the HRTPA (Dempsey et al., 2021, 2023; Duffy et al., 2023; Horgan et al., 2021; Mishtal et al., 2022; Mullally et al., 2021; O'Shea, 2023; Power et al., 2021; Spillane et al., 2021; Stifani et al., 2022). Some of these studies were commissioned as part of the Independent Review of the HRTPA (O'Shea, 2023). Although the studies approach the issue from a range of perspectives, certain key themes emerge. Firstly, there are clear challenges for clinicians in the operation of the HRTPA in practice (Dempsey et al., 2021, 2023; Duffy et al., 2023; Mullally et al., 2021; O'Shea, 2023; O'Shaughnessy et al., 2021; Power et al., 2021). This applies to EMA but even more to terminations which take place in hospital settings. Secondly, there is a need for reform of the HRTPA (de Londras, 2020; Enright, 2023; O'Shea, 2023). Calls for reform arise from practical considerations and also from rights-based and principled perspectives. Thirdly, there is an established link between the operational difficulties created by the HRTPA and women's access to and experience of the service (Conlon et al., 2022; Grimes et al., 2023; Mishtal et al., 2022; O'Shea, 2023). We know that women continue to travel from Ireland to other jurisdictions, especially the UK, to access abortion care, and there are also women who are unable to travel and cannot access the service in Ireland. In addition, not all of those women who were able to access abortion in Ireland felt that the service met their needs (Conlon et al., 2022). Fourthly, in spite of the above challenges, the rollout of the EMA service has largely been a success (Horgan et al., 2021; Mishtal et al., 2022; Mullally et al., 2021; O'Shea, 2023). It was developed and led by providers at a grassroots level and overall it appears to be operating effectively, although there is still substantial geographical discrepancy in access.

In the discussion below, we draw on the findings of an empirical study which we conducted with providers of EMA in primary care settings (Donnelly and Murray, 2023) to explore providers’ legal consciousness. In doing this, we draw on the taxonomy developed by Patricia Ewick and Susan Silbey in their classic work on legal consciousness (1998). Ewick and Silbey identify three different responses to law adopted by people impacted by the law in question. These are: ‘before’ the law, where legality is viewed as objective and ‘relatively fixed and impervious to individual action’ (1998: 47); ‘with’ the law, where legality ‘appears as an arena in which actors struggle to achieve a variety of purposes’ (1998: 131); and, ‘against’ the law where ‘legality and its normative claims’ are seen as ‘a product of power’ and resistance as a way of countering this power (1998: 189). Like Ewick and Silbey, we do not ascribe normative significance to these approaches to law. Rather, bearing this taxonomy in mind, we review providers’ legal consciousness through an exploration of the following themes: the aspect(s) of the HRTPA to the forefront of providers’ consciousness; how providers interpret the HRTPA; how providers have adapted their practices to work with the law; and, the chilling effect of the criminal sanction on providers.

The empirical study

The qualitative study, which obtained ethical approval from the Social Research Ethics Committee, University College Cork, involved semi-structured interviews with fifteen providers of EMA services, carried out between April and September 2022. The gender breakdown of participants was eleven female providers and four male providers. Thirteen of the participants were in general practice and two were clinicians working in specialist sexual health clinics. Of those working in general practice there was a range of practice profiles, from sole practitioners to multiple partner practices to practices with a specialism in women's health. There was a geographical spread of providers between urban and rural locations. Participants were recruited through the sharing of project information by START Doctors (the Southern Task-force on Abortion and Reproductive Topics was established by a group of clinicians involved in Doctors for Choice to provide peer support for colleagues) and the Irish Family Planning Association. The authors jointly developed the interview questions and guide and piloted these prior to commencing the interviews and both authors conducted one-on-one interviews. During the interviews participants were asked, among other things, about the impact of the legal framework on the day-to-day provision of EMA.

The interviews were conducted online and recorded and automatically transcribed using Microsoft Teams software. These transcripts were corrected and reviewed to address any issues with the automatic transcription and to ensure that any relevant points or insights could be followed up in interviews with subsequent participants. The transcripts were then coded using NVivo software. Coding was agreed by the authors and once completed we worked collaboratively to identify and refine themes, adopting a contextualist method of thematic analysis (Braun and Clarke, 2006). The names of participants have been pseudonymised.

The empirical study has some limitations. Firstly, the recruitment process meant that respondents were self-selecting and there is a heavy representation of providers who are involved with START Doctors. Secondly, the study presents only the perspectives of EMA providers and it does not engage with non-providers or with providers of later term abortions. Finally, the sample size may be viewed as small (n = 15), although when viewed in the context of the number of GP contracts for the provision of abortion in 2022 (413 as reported in July 2022) our qualitative study represents approximately 3.6% of providers at that time. We were also satisfied that we had reached saturation in relation to key themes following 15 interviews and note that this is in line with findings of a recent systemic review which highlights that where the empirical study has a relatively homogenous study population and focused research objectives, as our study did, that saturation was reached on average within 12–13 interviews (Hennink and Kaiser, 2022: 7).

Impact of the HRTPA on clinical practice

To evaluate providers’ legal consciousness, we began by asking an open-ended question about the impact of the HRTPA on providers’ clinical practice. There was a notable uniformity in responses to this, with all providers identifying the 3-day waiting period and most linking this to the applicable time limits (9 weeks for access to community-based care and the 12-week legal limit). A substantial majority of providers found the 3-day waiting period to be problematic, with some variation in the reasons why this was the case. Some providers identified the inherently paternalistic nature of the requirement while most identified the practical problems which the wait created for women. These difficulties can be seen in the example provided by Dr H (which preceded the introduction of remote consultation):

[W]e had a lady last year during COVID and she made an appointment to see me and I wasn't aware of where she was coming from, and it turned out she got a bus from [another town] to [City] and then from [City] to [this town] and she saw me for about half an hour and she thought she could get Mifepristone on the first day there and she couldn't, obviously. And then I needed to bring her back again. And so it took her approximately 10 hours to see me for about 15 to 20 minutes. The three day wait; the three day wait is absolutely a nightmare.

Many of the participants in the study highlighted the challenges when the 3-day wait combined with other access delays, for example difficulties in getting timely hospital appointments. These problems become especially significant in cases where the operation of the 3-day wait causes women to time-out of being able to access termination in the community, or, most seriously, being able to access abortion care at all. Dr B gives an insight into the nature of the issues faced:

[I]f I was to get somebody calling me tomorrow and I said, OK, this person is 11 weeks I'd be saying, OK, X Hospital and Y Hospital have now both had their clinics for the week, so they're not going to be on again until Monday. Z Hospital is tomorrow, but that's too soon for this woman. So they can't see her until Tuesday. And sometimes you’d be looking and going she's going to be 11 + 5, 11 + 6 if they can't see her at the next clinic, she's not going to make it.

Many providers were not opposed to the use of waiting periods in abortion care in all cases, with several identifying benefits to allowing the woman additional time in some situations. However, most considered that this was something best addressed through good clinical practice guidance rather than by the imposition of a mandatory legal requirement. A small minority (2 out of 15) of providers found that mandatory 3-day wait to be useful, with Dr N identifying the benefits of being able to refer to the legal requirement to avoid being pressurised into prescribing in situations where they were clinically uncomfortable (e.g. because they felt that the woman was not sure about the decision or may have been subject to external pressures and needed more time to think).

I think if we didn't have that three day wait, I think the doctor, it's probably quite selfish of me, but I think the doctor would be under a lot more pressure to just, yeah, here you are – just take the pill.

Here, we see a view of law as offering an objective and external reason for action which then freed the provider from having to make a judgement which might be difficult to justify or sustain in the face of opposition by the woman seeking care.

All providers, but one, also identified the 12-week limit in their response to the open-ended question. While providers acknowledged that their exposure to this limit was less than providers in hospital-based care, several had directly experienced woman presenting in primary care close to the 12-week limit. The logistical difficulties which then arise in getting access to care within the legal time limit are described by Dr L:

You know, like that's the wall you come upon because you're kind of going, you know, you're like, I can do nothing. What's worse is if you, just say, if somebody who's unsure their dates and … because they're not really sure so you get scanned and then they're 11 plus 2. But like the scan was done on Thursday and you don’t get the report until Monday. Then you're like kind of gonna ahh, you know, they were 11 + 2 on Friday. I could have done something about it. Now you're 12. I can do nothing.

Although a small number of providers felt that the 12-week limit was too low and that a 14- week limit would better address women's needs, most did not have a difficulty with the limit as such. Instead, the problem lay in the inflexibility of the limit. As described by Dr L:

I mean, it's so it's so black and white in a thing that's grey. You know what I mean? And like it's dependent on a measurement. And a guess you know, like they they're measuring that crown rump length and if somebody measures it, you know a millimetre more or less, that's the difference between 11 + 5 and 12 + 1. And it's, it's 2 millimetres. It's just a ruler.

This inflexibility was seen as especially problematic in cases of failed abortions, with providers expressing strong views about the consequences where the procedure is timed out as in this scenario described by Dr S:

I have a case which is ongoing at the moment, and that's exactly what happened to her. And she's recently delivered a baby that hasn't done well at all, you know. Yeah, very, very problematic. So that's why I've got an issue with it, like, this lady's life has been ruined because of what happened, and it was simply that, there's the, she started the abortion, the abortion failed. And then when she attended the hospital, she was over the dates.

For the majority of participants, the other aspects of the HRTPA (certification/reporting requirement and criminalisation) did not emerge organically in response to the open question, although when specifically asked, all providers were aware of these. While some providers found the certification/reporting requirements to be an additional burden, they had been able to incorporate this into their practices. Providers’ main concern was that the reporting requirements were not useful in actually improving the service. This was especially problematic given the urgent need for good clinical data on the operation of the service; as described by Dr C, ‘we have absolutely no information whatsoever of who's seen, what gestation they are, where they come from, how far they travel, what their complication rate is and so on and so forth’. We will discuss responses to criminalisation in more detail below.

Interpreting the law

When asked where they looked for advice on legal issues when providing abortion care, providers identified a variety of resources. Many spoke about the value of having support groups of colleagues to whom they could refer questions, with almost all identifying START Doctors as an important support and information resource for both clinical and legal questions. However, there were also references to other smaller groups of colleagues providing easily accessible support to each other. As described by Dr N, ‘And then separately to that, we would have a smaller group with maybe a few more local questions or you know’ – ‘I'm going to be away on Friday. Would anyone be able to see whoever?’. In relation to START Doctors, Dr O’R observed ‘it's great because you get the collective mind or power of 256 people’. Dr M identified the important role played by the START WhatsApp group, emphasising the quality and reliability of the colleagues involved:

I'm on the WhatsApp group for START and that's just a brilliant resource. And you know there's consultants, there's colleagues, there's very knowledgeable colleagues, people who were involved in drafting the protocol. So you always get your answer there and usually within about 5 minutes of putting up your query. So that would be my main resource.

However, some participants had concerns around the ‘crowd-sourcing’ approach to legal interpretation. Dr H was ‘not always very happy about it. It sounds, I feel like putting up a message saying read the guidelines’ while Dr P noted:

[Y]ou'll get wildly differing opinions. And some of the very strident pro-choicers on the group could post stuff that is not actually correct re the legislation and the guidance, so if there's something you really need clarity on, I’d tend to contact the termination of pregnancy coordinator at X Hospital and they’ll speak to the consultant.

Dr P's view fits neatly into Ewick and Silbey's ‘before the law’ category. Law is seen as having a straightforward, immutable character with some legal knowledge (in this case, that of the hospital consultant) regarded as superior while other opinions (those of the ‘strident pro-choicers’) being seen as biased and less reliable.

Hospital consultants were generally regarded as a source of advice and support in interpreting the legal provisions. Dr O’C was very positive about the ‘really personal kind of wrap around service’ which the consultant in their local hospital provided. The implications of this kind of effective working relationship for access can be seen in the experience recounted by Dr S relating to the 12-week limit:

And I did have a case where the patient was 12 weeks by dates and … the professor when I got to talk to [them] said look … It's the crown, rump length that matters. So therefore let's do the scan and the crown rump length was 63 millimetres and the cut off for legal abortion is 65. So [they] said yes, that's fine, she can go ahead. So [they were] very scientific about it.

Here, we see Dr S ascribing a normative value to the ‘scientific’ knowledge represented by the crown rump measurement which can be contrasted with the less reliable temporal framework laid down by the law.

The converse of this can also be true, with the same provider describing a very different experience with another hospital which refused someone access on the basis that they were over the 12-week limit based on dates, without doing the scan and assessing the crown to rump length. While the START Doctors group appeared to be the first port of call for any queries among the group that we spoke to, other potential sources of support and legal advice were also mentioned, including the midwives in the local hospital, MyOptions, the Medical Protection Society, and Medisec.

New ways of working to fit within the law

For the most part the providers we spoke to adopted a pragmatic approach to service delivery, adjusting their own ways of working to accommodate the statutory requirements. As observed by Dr L ‘you kind of accept whatever hoops they want you to jump through just to sort of, like, get the legislation through and protect it’. Thus, providers generally work ‘with’ rather than ‘against’ the law (Ewick and Silbey, 1998).

As noted above the three-day wait was identified by all participants as an issue when asked about how the law impacts on clinical practice. A common theme among providers was how the layering of a rigid legal framework on top of a primary care service that is at or beyond capacity can impact on access to care. This is compounded when not all GPs or practices provide the service and so the usual opportunities to refer to colleagues when under pressure are not available. Providers described ways of working above and beyond normal practices to ensure that care is provided. One very simple example is providers blocking out designated appointment slots in the practice to ensure there is availability to see people within the 3 days so the waiting period doesn’t run over a weekend:

[F]or general medical services that are overwhelmed and very, very much booked out in advance, it just means the only way we can try to make sure we have the appointments we have is by setting them up in advance. So they're there to be used. (Dr B)

However, there was a view that this was not ideal and that the interaction of the law and the realities of clinical practice led to women seeking abortions being treated differently to other patients, when the ultimate objective was to integrate abortion care into standard general practice. Dr O’R describes:

I suppose in a way we positively discriminate them. You know there's waiting lists for to see a GP but we try and fit them in when they want, and it would be nice to fully normalize them, of course, and have them wait a day or two.

It is a sign of the deeply embedded limitations of the Irish primary healthcare system that a sign of normalisation would involve delayed access to care (Connolly et al., 2022).

Many providers spoke about ‘trying to squeeze [women seeking abortion care] in’ around the rest of the practice but acknowledged that there is finite capacity to do this, particularly when these consultations can take slightly longer than an average appointment. Dr K described how ‘I try to give them a double appointment because I think they need the time. But again, it's just it's just finding the time’.

Other providers spoke about working outside of their standard working hours in order to ensure that the impact of the 3-day waiting period on the person seeking the abortion was minimised. Dr C explained:

[I]f I get a call late in the evening, I will ring that number even if it's at 8:00 o'clock at night, because it sets the clock on that day, whereas normally we'd have had to offer her an in person appointment and if that was a Friday, it would be Monday.

Working weekends also featured, particularly in the early rollout phase, with Dr H noting ‘And so, done mainly on Sunday afternoons over the winter. And so that's pretty, you know, that's not very appropriate and everything so, uh, but you know it needed to be done and we got on and did it’. Other participants, such as Dr K, spoke of using designated ‘paperwork days’ to see women seeking abortion care:

I'm supposed to only do paperwork on a Thursday. It's my sort of non-clinical day, but I do end up doing just terminations on a Thursday because otherwise the woman has to wait until the following Monday if there's no one else around. Umm, which isn't great timing wise.

The introduction of the abortion service required providers to adjust how they manage and run their broader practices. However, most providers felt that the introduction of telemedicine had reduced some of the pressure because phone consultations did not necessarily have to take place during core practice hours. Dr C noted ‘so the three-day wait has substantially been changed and the harms of it modified by the telemedicine’. This finding echoes that of Spillane et al. (2021).

When asked about the certification and reporting requirements under the HRTPA, the majority of study participants spoke about developing new systems within the practice to manage the additional paperwork:

But it also includes the certification form, the notification form, the STC claim forms. These are all my bits. And so then when I’ve it all done I do the paperwork on the day and I hand what's left of my paperwork out to the practice manager and she processes that. She makes sure it's sent in, she claims, she sends the notification and then she knows two weeks after I've cleared it that I'm happy that this pregnancy is over because this pregnancy test is back and she closes the file. So we have a system and most of us have a system like that. (Dr C)

However, as noted above, many participants, while incorporating the additional requirements into their day-to-day practice, also raise concerns about the usefulness of the data being collected. Not all of the participants were negative about the reporting and certification requirements. Some providers described feeling that these reporting requirements provided additional protection for the provider:

I think it's a little bit of a protection. I like the legal framework and structure and limits around it because it's not, there's no sense that it's like a free for all do what you want to kind of thing. (Dr W)

Law here is viewed as a bulwark against ‘inappropriate’ access. This may reflect Dr W's own views as to the circumstances in which abortion should be available although it may also reflect a broader view regarding the value of legal regulation and the need for boundaries on clinical discretion.

Dr R was of the view that the paperwork provided prompts to guide the consultation, and also marked that the decision and the consultation were being taken seriously by the provider. They described how ‘it helps me to remind me about what I have to ask, but, yeah, it makes it more efficient. It makes it, you know, that it's a serious decision for them and it's not a willy-nilly kind of flippant thing that, do you know, that we treat it seriously’.

Even though many of the participants in the study identified a range of challenges they experienced when integrating abortion care into their practice, many of which derive from the HRTPA, there was also a sense of pride that the EMA service was working effectively within the confines of the legal framework:

I mean it's just so satisfying to see that we have managed to learn from the worst of convention and managed to kind of dovetail in, you know, innovation, imagination and really from a solid evidence base we've managed to get like a really fantastic service for women who can come to the GP in crisis, take their tablets, get sorted and get the contraception sorted and move forward in their lives. (Dr O’C)

Chilling effect of the law

The possibility of criminal liability for providers who operate outside the terms of the HRTPA was identified by some participants in response to an open question as an issue that impacted on their clinical practice. For others, this concern was not on their radar: ‘I haven’t really thought about it much’ (Dr H). This response was usually followed by a statement along the lines that this was because the provider in question wasn’t doing anything outside of the law: ‘I don't really think about it a huge amount because I'm not dancing outside the lines, you know?’ (Dr L). Many of the participants in the study expressed the view that they were not personally concerned that they would be prosecuted because they believed they were working within the scope of the legal framework. Some noted that the legal framework for EMA was straightforward when compared to the other grounds in the HRTPA. Dr B commented:

I think it's relatively easy for us to act within the law. The first part of the bill, the early pregnancy part, is quite easy to actually figure out where you are with. The other parts are the parts that are the most difficult in terms of the criminalization, where there are very, erm, decisions that you know you could put to two different people 100 times and you might get slightly different answers. So then that makes people very worried about those decisions. And I think that's really, really difficult then to have criminalization hanging over those decisions.

Providers’ lack of personal concern is no doubt enhanced by the fact that there has been no threat of prosecution and indeed that the Director of Public Prosecution (whose consent must be sought for any prosecution: HRTPA, s. 23(6)) has not had the practice of utilising criminal sanctions against medical professionals (Tumelty and Spain, 2021).

However, in spite of their lack of personal concern, when asked what they thought of the ‘exceptional’ features of abortion care when compared with other forms of healthcare, including criminalisation, most participants spoke of feeling uncomfortable with the inclusion of criminal liability for medical practitioners:

I don't go into work terrified of the guards, but, you know, you just have to be so much more careful. And there's no harm being careful. But we can be careful without being threatened. I think it's also very nasty to doctors, to threaten them with sending them to jail if they make an honest mistake. They do say if you make an honest mistake, you won't go to jail, but you could be in the, in the dock. I don't want to even be in the dock. The name in the papers, you know, all that stuff, it shouldn't arise. This is a medical thing. (Dr F)

Several providers also pointed to the fact that they are already subject to oversight and potential legal liability in negligence for any failure to adhere to accepted standards of practice, and so additional criminalisation was unnecessary:

You know, if they're being made in good faith and people are really putting their time into thinking them out, they shouldn't actually be facing criminal sanctions. It's quite enough that if you make a bad mistake, you're facing medical negligence charges anyway. Why do you need to add in these criminal sanctions to it? It just makes no sense. (Dr B)

Providers also identified the impact of criminalisation on patient care. Dr F explained ‘All they're doing is making everybody nervous, and if you're nervous, you're not going to work as well as if you're not nervous’. Dr C was very strongly of the view that criminalisation had a chilling effect on doctors and led to them adopting a more ‘doctor-centric’ approach. Dr C also contrasted doctors’ responses to abortion care with the way in which they respond to other forms of regulation, such as the legal uncertainties regarding minors’ consent:

we're more hypervigilant, more careful than we would be in other areas where the law is part of it. So like for instance around minors. You know where there's all types of interpretations of how you manage your consultations with a minor and consent. But we're not as hypervigilant about it. And I think that the consequence of the hypervigilance is then we become much more doctor centric. And a lot less patient focused and patient centred and the decision making then is made very much to facilitate and protect the doctor or the provider than the patient, because we are very concerned about getting it wrong and the strong arm of the law.

A potential risk of this doctor-centric approach is that it shifts the focus from respecting autonomy and informed decision-making by the person seeking abortion care. The provision of abortion care is singled out as being different, in need of further and more significant regulation than other healthcare, with doctors as the gatekeepers. As Dr C describes:

It's, it's that othering of a service. And doctors internalize it and get really vigilant. And sometimes we all need reminding at the best of times that why are we providing this service? We're providing it for, you know, it's for the patient. It should be about the patient.

Conclusion

This article has explored providers’ legal consciousness, through an empirical study of EMA in primary care in Ireland. This leads us to advance two arguments. Firstly, it provides additional support to the case for legislative reform and, secondly, it shows that, even short of legislative reform, the broader regulatory framework can be improved in ways that would enhance provider confidence and thereby improve access for those seeking abortion care.

The rights-based case for reform of the HRTPA has been effectively made elsewhere (de Londras, 2020; Enright, 2023, 2024). The empirical study informing this article offers a perspective from EMA providers about the kinds of reform that would be most beneficial for their practice. For a majority of providers, the most immediate need for reform related to the mandatory 3-day waiting period especially when combined with the 12-week limit and the legal prohibition on completing failed abortions that run over the time limit. These problems with the HRTPA were also recognised in the Independent Review (O'Shea, 2023) which was able to draw on service user perspectives from the UnPAC Report (Conlon et al., 2022). UnPAC very clearly showed that service users have made up their minds before they come to their doctor and that they want to access care as quickly as possible and do not see any benefit to a mandatory 3-day wait period (O'Shea, 2023: 86). The Review ultimately recommended the replacement of the mandatory 3-day waiting period with a duty to inform the woman of her right to a 3-day ‘reflection period’ if she wished (O'Shea, 2023: 26) and the extension of the 12-week limit in some situations. These are where the operation of the 3-day waiting period or the inability to make arrangements cause the woman to exceed the 12-week limit or where an initial attempt at termination has failed (O'Shea, 2023: 25). The findings presented here point much more clearly towards the removal of the 3-day waiting period, a position which also aligns with other provider research on this question (Mullally et al., 2021). The Independent Review also recommended that medical practitioners should be removed from the scope of criminal liability in s. 23 of the HRTPA (O'Shea, 2023: 27). Again, support for this recommendation can be found among EMA providers who identified the extensive regulation which already applies to medical practitioners. Overall, the message from providers is that these aspects of the HRTPA are restricting them from providing abortion care in an ethical and clinically appropriate way.

The second argument is that even without legislative reform, there are spaces in the legal and regulatory framework which can be exploited to enhance access to abortion care. Ruth Fletcher's critical engagement with the role of time in law (chronolegality) provides several helpful examples of such a space (2023, 2024, 2025). In respect of the 12-week limit, Fletcher notes that the HRTPA utilises both clock-centric (the 3-day and 12-week limits) and cyclical time (measuring the 12 weeks from the first day of the LMP: HRTPA, s. 12(5)). She shows that there is no requirement for legal time limits to be counted in an exclusively ‘clock-centric’ way, as for example in the MOC which adopts a 12 + 0 time limit, and argues that a cyclical time measurement could more plausibly be used, thus extending the cut-off point, facilitating greater access to care, and aligning more closely with clinical measurements of pregnancy.

Our examination of providers’ legal consciousness shows that providers respond differently to the law. This may reflect the provider's own values and beliefs regarding abortion (Donnelly and Murray, 2024) but it may also reflect providers different understandings of legality and different levels of comfort in working ‘with’ the law. This then indicates the importance of professional guidance in this sphere. The empirical study shows the importance of the MOC and of professional guidance in directing how EMA providers work in practice, including affording them a degree of confidence in operating in the shadows of the criminal law. The clear practical benefits which emerged from the change in the MOC to define the requirement to ‘examine’ in a way which allows for remote consultations (telemedicine) shows the potential of this regulatory space as a site for improvement. As identified above, there are other gaps in the HRTPA which potentially allow for a widening of access to abortion care within the existing statutory framework.

While the MOC has been amended following the Independent Review, the IOG clinical guidance has not been revised since the HRTPA came into force. This updating is essential to take account of the knowledge which has emerged in the years since the HRTPA came into operation. The need for immediate revision is especially urgent in respect of the Interim Guidance on Risk to Life and Health (2019), which, as currently formulated, does not constitute a usable or reliable resource for providers. Although better clinical guidance cannot address all of the limitations of the HRTPA, the regulatory framework can be substantially improved by clear guidance that prioritises a commitment to women's autonomy and health and is informed by the experiences of service users and providers.