After The Review : Law,abortion,reform and the legacies of information restrictions

Abstract

In 2018, the Irish electorate voted to remove the text of Article 40.3.3° that enshrined an equal right to life for foetal life to that of the ‘mother’ from the Constitution. This created an impetus for the Irish government to reassess the existing abortion information legislative framework. Until then, laws regulating information access were embedded in, and reenforcing of, anti-abortion ideologies. Information was treated in law as a strategic tool for reducing the number of people who chose abortion and as a potential threat to vulnerable subjects and the anti-abortion status quo. Much of the prohibitory and paternalistic governance of information was repealed with the Health (Regulation of Termination of Pregnancy) Act 2018. However, it is apparent from within the law, and the accounts of those who experienced or provided post-2018 abortion care, that the ideologies behind decades of anti-abortion information controls were not fully dispelled through the legalisation of abortion. There remains care-related issues due to the mandatory waiting period, criminalisation and issues with the boundaries of conscientious objection. To facilitate an abortion service that is truly abortion seeker-centred, the legacy of anti-abortion information controls needs to be acknowledged and worked against in legal and policy spaces.

Introduction

The Health (Regulation of Termination of Pregnancy) Act 2018 greatly changed how abortion information was regulated in Ireland. Previously, some types of information that assisted people to access an abortion, or could be said to have advocated abortion, was controlled and criminalised. Governments justified restrictions on publications, advertisements and crisis pregnancy consultations by claiming that abortion vulnerabilised pregnant people and foetal life, and it was antithetical to the beliefs of people in Ireland. In 2018, 66.4% of the electorate voted to remove the Constitutional impediment to abortion law reform: the Eighth Amendment. As a result, most anti-abortion information restrictions were no longer politically or legally tenable. In this article, I consider the legal changes introduced around the 2018 referendum. In part one, I describe the pre-2018 legislative framework and rationale behind the targeting of facilitative or affirming information and communications. In part two, I identify the positive legal reforms introduced by the government in 2018 that made the legislative framework less oppressive and more protective of abortion seekers and information sharers. In part three, I discuss how undoing decades of abortion exceptionalisation is difficult due to the pernicious nature of paternalism and negative framings of abortions. Despite the vital and necessary reforms introduced in 2018, the government perpetuated some of the narratives that had previously justified anti-abortion information regulations, i.e. that there is a need to protect assumed under/misinformed, crisis-driven, impressionable abortion seekers, and the Irish electorate favoured the government's intended restrictions. The 2018 Act has sustained some delays and care gaps by enacting a mandatory delay period, gestational limits, and an offence of aiding, abetting, counselling or procuring a person to have an abortion outside of the Act. Issues also remain with the permissible boundaries of conscientious objection. As a result, some abortion seekers are required to rely upon volunteer and overseas information and assistance providers. In part four, I discuss options for working to dispel the anti-abortion information strategies of the past and to realise the transformative potential of the 2018 referendum. The 2018 Act requires reform, and challenging and rejecting the enduring ideological foundations of anti-abortion information controls will be fundamental to this. Law-making should contribute to a culture and system of abortion access that is respectful and facilitative of the needs and wants of pregnant people. How information is regulated and supported by the State can further normalise and affirm abortion decision-making. Therefore, the mandatory delay period and gestational limits should be removed, abortion and assistance decriminalised, and specific boundaries and requirements placed upon conscientious objection.

Part one: The pre-2018 abortion information legislative framework

For decades, censorship and information controls were used in Ireland by the State and anti-abortion advocates to create barriers to access and to sustain societal condemnatory framings of abortion. In 2018, the primary piece of legislation was the Regulation of Information (Services Outside the State for Termination of Pregnancies) Act 1995. It regulated information that was ‘likely to be required by a woman for the purpose of availing herself of services provided outside the State for the termination of pregnancies' and information about abortion providers (section 2). This information could be lawfully published, broadcast or shared in public once it was ‘truthful and objective' and did not ‘advocate or promote' abortion (section 3). These terms were not defined. A pregnancy advisor (for example, a doctor or counsellor) could lawfully provide this information to a patient/client once they adhered to the truthful and objective requirement, did not advocate or promote abortion and counselled her on options for the continuation of pregnancy when information was requested by the patient/client or on her behalf (section 5). Displaying or distributing unsolicited regulated information and pregnancy advisors making appointments with abortion service providers on behalf of abortion seekers were prohibited (sections 4 and 8). This legislation was introduced following the insertion of the Fourteenth Amendment into Article 40.3.3° of the Constitution after a 1992 referendum. The Amendment read: ‘This subsection shall not limit freedom to obtain or make available, in the State, subject to such conditions as may be laid down by law, information relating to services lawfully available in another state'. The 1995 Act became those conditions. If the information in question did not fall under the remit of the 1995 Act, it could potentially violate the prohibitions in three other pieces of legislation. The Indecent Advertisements Act 1889 prohibited ‘indecent or obscene' matter, including those advertising abortion or abortifacients (section 17(1) Censorship of Publications Act 1929). The Censorship of Publications Act 1929 made it an offence to print, publish, sell or distribute any publication that advocated or could ‘reasonably be supposed to advocate’ abortion without a permit (section 16). Under the Censorship of Publications Act 1946, books and periodicals that were judged to have advocated abortion could be prohibited, rendering their importation, sale, advertisement, or distribution an offence without a permit (sections 7, 9 and 14).

There were three main justifications for each iteration of information control. First was the view that abortion was a moral wrong that should be criminalised. Information sources undermining offences or condemnations of abortion should, therefore, be foreclosed, suppressed or expelled. Conroy-Jackson (1992: 130) described anti-abortion interventions as hindering the development of a less condemnatory Irish ‘public language or vocabulary’. Information restrictions formed a part of that strategy. A second aspect was the perceived unifying effect of anti-abortion ideologies for nation-building. Ewick (2004: 80) outlined how an ideology needs to be ‘lived, worked out, and worked on. It has to be expressed and applied and challenged' for it to be ‘viable’. People can live according to those dominant principles and find comfort and security in knowing and holding others to the same standards. Controlling information that ran counter to hegemonic framings helped to reproduce the concept of abortion being, to use de Londras's (2015: 254) phrase, ‘un-Irish’. A third persistent foundational claim was that abortion availability endangered vulnerable pregnant people and foetal life. It was as if, to borrow from Butler (1997: 21), the mere speaking of the word ‘abortion’ was enough ‘to constitute an injury, as if the word performed the act, and the injured party were the defenceless “unborn”’. The concept of injurability is critical to understanding why and how censorship endured for so long. As O’Connor (1990: 153) said of censorship generally, ‘you can't prosecute a book merely for being unmannerly’. Legal interventions required an injury or a threat of an injury to a potential reader or to society. Information that facilitated or legitimised abortion was framed by its opponents as necessitating removal or preclusion to ensure the protection of vulnerable pregnant people and foetal subjects from what was believed to be the harms of accessible, normalised abortion (Farrell, 2024).

Part two: Legislating for normalised, facilitative information provision

In 2018, 66.4% of the Irish electorate who voted, voted to pass the Thirty-Sixth Amendment. This result delivered a seismic blow to the legitimacy of anti-abortion regulations. The Amendment removed the existing text of Article 40.3.3° that enshrined an equal right to life for the ‘unborn’ with the ‘mother’ (the Eighth Amendment) and the Fourteenth Amendment. The new text reads, ‘Provision may be made by law for the regulation of termination of pregnancy’. This change provided an opportunity and a duty for the government to address the anti-abortion orientation of information regulations. The legislation passed by the Oireachtas was the Health (Regulation of Termination of Pregnancy) Act 2018. The Minister for Health, Simon Harris, described the pre-2018 laws as being ‘in contravention of the principle’ of the reforms (Dáil Éireann debate, 4 October 2018). He was correct, as the purpose of the 2018 Act was to expand abortion access. Post-2018, a person can access an abortion in Ireland if they are under 12 weeks pregnant (counted from their last menstrual period), if an abortion could avert a risk to their life or a serious risk to their health, or if an anomaly would ‘likely lead to the death of the foetus’ within 28 days of birth (sections 9–12). A prohibitory legal framework where advice and assistance were criminalised was not legally, politically or practically feasible to the extent that it was under the Eighth Amendment. The harms caused by abortion restrictions, including information barriers, featured prominently in referendum debates and campaigns (Carnegie and Roth, 2019; O'Shaughnessy, 2021). The electorate by voting for change, had signalled a rejection of the foundational justifications for anti-abortion information requirements i.e. they were needed to protect vulnerable subjects, and abortion was regarded as an unacceptable moral wrong by the majority of the Irish people. The 2018 Act's ‘Repeal’ section swept away the existing suppressive framework by repealing the 1995 Act and removing the anti-abortion prohibitions in the 1889, 1929, and 1946 Acts (section 5). This removed significant barriers that would have encumbered the development of a truly abortion-seeker-centred and agency-affirming abortion information infrastructure. Publications can no longer be prohibited for ‘advocating’ abortion. Pregnancy service providers no longer legally have to guard their language in case they are deemed to have ‘advocated or promoted’ abortion. Nor are they legally required to refuse to make appointments on behalf of patients/clients (the latter two points must be considered along with section 23 offences that I will discuss below). Research from Duffy et al. (2023) found that these changes are impactful as professionals can provide more open, confident care. These changes are a testament to how perceptions of the ideal or legitimate use of information as a tool of governance for abortion control had shifted away from its paternalistic, interventionalist, condemnatory foundations among legislators.

The 2018 Act repeals were not the only changes made by the government to remove potential information barriers to abortion access. Simon Harris addressed a gap whereby anti-abortion organisations who described themselves as crisis pregnancy counsellors – referred to as ‘rogue agencies’ by the Crisis Pregnancy Agency/Programme¹ – operated without legal oversight (2003: 31). Over decades, the media, activists and academics exposed these organisations for using mis/disinformation to dissuade or prevent people from choosing abortion (Coyne and Lumley 2017; Coyne, 2018a; Finn, 2007; Holland, 1999). These strategies included providing mis/disinformation about abortions, pregnancy progression, and Irish and international laws. They also attempted to visibilise foetal life through testing and scanning. The 1995 Act's obligations for truthfulness and objectivity applied only to those sharing information about how and where to access a legal abortion abroad. The 1995 Act was embedded in anti-abortion principles as counsellors could, to quote the Minister for Health, Michael Noonan, ‘direct away from but not towards the option of abortion’ (Seanad Éireann, Tuesday 14 March 1995). Rogue agencies were criticised by legislators for using deceptive practices and vulnerabilising information seekers. However, successive governments refused to use law to intervene. One issue was that legal changes could potentially impact the State's abortion reduction aims. For example, another Minister for Health, Brian Cowan, expressed concern that counselling regulations could result in ‘driving out those who provide a good quality service and causing a deterioration in the overall provision’ (‘Pregnancy counselling services scrutinised’, 1999). Limiting or professionalising who could act as a counsellor or information provider could compound the vulnerabilisation of assumed crisis-driven, under/misinformed abortion seekers by reducing other anti-abortion service offerings.

The solution offered by governments post-2001 was to fund and promotes state-supported crisis pregnancy counselling under the Crisis Pregnancy Agency/Programme (Harney, 2009a, 2009b; Reilly, 2012). Obstructors continued to operate without legal oversight. It was the pregnancy services who provided facilitative abortion information who were the ones who risked criminalisation, should they be deemed to have advocated or promoted abortion or if they made an abortion appointment behalf of a patient/client. This regulatory approach created blocks to information access and continued to exceptionalise and stigmatise abortion. The government in 2018 adopted a different strategy as they were legislating at a time when directive counselling and refusals were roundly condemned, and the government was seeking to expand access to abortion. To protect vulnerable abortion seekers, the government designated ‘counsellor’ and ‘psychotherapist’ as protected professions (S.I. No. 170/2018). A Counsellors and Psychotherapists Registration Board now has a statutory responsibility for a register of members, examining training and establishing a Code of Professional Conduct and Ethics and standards. This change was not abortion specific; it applies to all who use these titles. It was, however, intended to address the mis/disinformation that circulated due to rogue operators.

It can be an effective strategy to focus upon information provision as a response to mis/disinformation. Rogue operators can avoid repercussions by using non-regulated terms to describe their services, for example, crisis pregnancy information provider or supporter. A problem with using service-based responses alone is that any sources of injustice and inequality may remain in place, perpetuating vulnerabilisation and paternalistic law-making (Mackenzie et al., 2014). In the context of abortion information, pre-2018 laws and orders were embedded in anti-abortion framings. The Crisis Pregnancy Agency/Programme was founded with an abortion reduction mandate (S.I. No. 446/2001). The Agency/Programme was required to devise strategies to achieve ‘a reduction in the number of women with crisis pregnancies who opt for abortion by offering services and supports which make other options more attractive’ section 4(i)(b). Counselling and information provision were central to efforts to abate the crisis and fill assumed information gaps to support a person to remain pregnant. To quote former chair Olive Braiden (Joint Committee on Health and Children, 27 October 2005), ‘the more opportunities a woman gets to talk about her crisis pregnancy and what she proposes to do about it, the greater the chance she will decide to keep the baby’. Caroline Spillane, a former director, described parenting as the ‘optimal outcome for any woman’ who was pregnant (Human Rights Watch, 2010: 39). Even with this abortion minimisation mandate, the Agency/Programme advertised its supported counselling services as being non-directive and ‘non-judgemental’, even using the tagline ‘no judge, no jury, just information’ (Crisis Pregnancy Agency, 2004: 13; 2010: 17). It did however fund and promote two anti-abortion counselling organisations: Cura and Anew (previously Life). Neither of these organisations provided full information services as they did not refer people to abortion providers, at times were found to have provided directive or part-directive counselling, did not always disclosure their anti-abortion stance and in Cura's case, refused to share the Agency/Programme's leaflet due to the inclusion of contact details for organisations who would share information about abortion services (Conlon, 2005: 20; Coyne, 2017; Holland, 2005; Joint Committee on Health and Children, 27 October 2005). Cura and Anew were later required to adhere to the Agency/Programme's service agreements including referring to a GP or another information provider. They were not obliged to provide information about abortion services under these terms or the 1995 Act (section 13). The Agency/Programme continued to fund and promote them as non-directive services to maintain a nationwide crisis pregnancy counselling infrastructure due to the belief that counselling could reduce abortions (Farrell, 2024). This approach aligned with the dominant abortion reduction strategies and ideologies in policy and legal spaces.

After the electorate voted for liberalisation in 2018, the approach of funding those who would refuse to direct people to abortion providers had less political legitimacy. The State would soon be providing abortions on a wider basis than a risk to the life of the pregnant person (as per the Protection of Life During Pregnancy Act 2013). It would, therefore, be incumbent on information providers – professionally and ethically – to direct people to abortion services or to non-directive information providers. As Simon Harris said, it was not ‘a particularly radical concept’ to require all crisis pregnancy services that were state-funded to provide pregnant people with information about all the legal options (Coyne, 2018b). The need for Harris to act to ensure that state-supported organisations provided information about legal abortion services did not materialise as Cura shut down after the referendum in 2018 and Anew ceased providing crisis pregnancy counselling in 2019 (Anew, 2020; McGarry, 2018). Engagement with these two services, and with Agency/Programme supported crisis pregnancy counselling generally, was already waning by 2018, with Mazars (2017) noting that the number of users was falling year-on-year. Many abortion seekers were travelling directly to abortion services abroad or ordering medication abortions online. Cura cited a drop in demand for its services as the reason for its closure, but Bishop Kevin Doran (2018) acknowledged that the status quo had changed. He said, ‘we should no longer expect or depend upon State funding for pastoral initiatives, even when they seem to coincide with the good of society’. His statement evidenced the shifting that took place around 2018 as the State largely abandoned using information regulations to attempt to direct people away from choosing abortion based on it being an intervention that was antithetical to the best interests of vulnerable subjects and the fundamental beliefs of people in Ireland.

The legal changes in 2018 created the space and political momentum for the government to strengthen areas where law and policy already recognised the agency of abortion seekers, albeit within the anti-abortion legal framework. For example, the Minister for Health in 1995, Michael Noonan, did not want to allocate state funding for crisis pregnancy services in a way that ‘forces women to go for one type of counselling rather than another’ (Seanad Éireann debate, 14 March 1995). As a result, organisations that shared information about abortion services abroad, like the IFPA, received State funding to provide non-directive counselling (O’Brien et al., 1998). The Crisis Pregnancy Agency/Programme worked with health boards and the Health Service Executive to establish non-directive counselling capacity in areas where there was a dearth of free-at-point-of-access options (Crisis Pregnancy Agency, 2005; Joint Committee on the Eighth Amendment of the Constitution debate, 15 November 2017). GPs, social workers and counsellors provided counselling and as Conlon (2005: 20) outlined, ‘all counselling delivered by statutory providers is non-directive, 3-option (i.e., will provide information on abortion services) counselling’. These services were an important part of abortion access as abortion seekers in reach of these organisations could avoid directive anti-abortion counselling, mis/disinformation and information refusals. Having any such services available, however, meant that abortion seekers in reach of these organisations could avoid directive anti-abortion counselling, mis/disinformation and information refusals. It was a shift away from, to borrow from Fletcher (1998), an ‘absolutist’ anti-abortion approach whereby information is regulated, denied and disseminated to serve abortion reduction goals and to reaffirm the dominance of anti-abortion ideologies.

Until 2018, information provision was primarily framed by governments as a strategy for alleviating the crises of vulnerable pregnant people, thereby reducing abortions (Farrell, 2024). The reliance on voluntary organisations to provide counselling reflected the intentions of some governments to distance the State from abortion. An illustration of this was John O’Connell, the Minister for Health who spearheaded the Fourteenth Amendment. His expectation of how this freedom would work would be that ‘voluntary agencies’ would provide information about lawful abortion services abroad but that ‘health boards’ would not. The State providing information was, in his view, akin to ‘advocating’ abortion (Dáil Éireann debate, 22 October 1992). O’Connell's vision was not sustained as the State shifted its relationship to abortion information provision, for example, through the Crisis Pregnancy Agency/Programme's work with the health boards and the Health Service Executive. The repeal of the 1995 Act provided the government in 2018 with an opportunity to create a facilitative and affirming information provision infrastructure. There was a notable shift whereby government members acknowledged and referred to abortion seekers as agentic decision-makers. For example, Simon Harris described abortion seekers as ‘intelligent human beings’ who could do research, consult professionals and make their own ‘informed decisions’ (Select Committee on Health debate, 8 November 2018). The important infrastructural recognition of this was the creation and operation of MyOptions information line. Abortion seekers can now obtain information about how and where to access an abortion over the telephone or webchat. MyOptions counsellors are not required to provide abortion seekers with information about supports for the continuation of pregnancy before sharing abortion information. Free, face-to-face counselling is still available for those who want it (HSE, 2023). Research demonstrated that MyOptions works well for those requesting an early abortion (Grimes et al., 2022). Conlon et al.'s (2022: 41) study quoted an abortion seeker, ‘Katherine’ who said, ‘You just want somebody to listen to you. And you just want somebody to, you know like, give you information, facts and information only. And I got that from [MyOptions] … It was them really just asking you “what do you want to do?”’. This approach, by departing from the condemnatory, guarded control of and requirements for information of the past, facilitates abortion access in Ireland and continues the normalisation and destigmatisation of abortion and abortion assistance.

Part three: Enduring legacies of anti-abortion information controls

Not all post-2018 abortion seekers reported a straightforward care pathway. Research has flagged several enduring access issues. Stifani et al. (2022: 2) were correct when stating that ‘new laws do not seamlessly lead to accessible abortion services’. From provider accounts, it seems that shortfalls are related to the fast roll-out of a new service and workload burdens in an overstretched and underfunded public health system (Dempsey et al., 2023; O'Shea, 2023). The influence of law cannot be discounted, however. As Fletcher (2018: 244) remarked:

The old ways of doing things are difficult to root out because they are matters of habit and institutionalization. We know that the legal ideology of gendered restrictions like the Eighth is a weed, which threatens to pop up all over the place in the new garden that we have worked so hard to clean up.

Conlon et al. (2022: 222) also observed this, stating, ‘[o]ur data shows how the legacy of the Eighth Amendment and social and cultural contestation regarding abortion in Ireland shape the experiences of people seeking abortion care since legalisation’. I believe that some of the foundational principles of pre-2018 anti-abortion information regulatory strategies have also endured. The Oireachtas failed to entirely dispel the logics of anti-abortion information controls in two areas. First was the government's continued claim that criminalisation and barriers were necessesary to protect vulnerable subjects. Butler et al. (2016: 2) recounted how invoking vulnerability as a reforming motivation can lead to people replicating ‘paternalistic logics’ that deny the agency of the subjects of interventions. Such framings can then, as Ahiska (2016: 2015) recounted, ‘legitimise[s] certain actors with a certain authority to describe, analyze, and solve the problem to help these women’. In this context, such legacies resulted in legislation that perpetuated the idea of abortion as a threat and facilitative information also potentially being so. Secondly, the government adhered to the argument that the 2018 Act restrictions reflected the majority view among the electorate of how abortion should be regulated. Simon Harris rejected most proposed Bill amendments and adhered to the General Scheme that the government had published before the Thirty-Sixth Amendment referendum. Harris claimed that the electorate approved of the General Scheme by voting to pass the referendum. Hence, the 2018 Act was shaped to reflect this claimed consensus (Dáil Éireann debates, Thursday, 4 October 2018 and 18 October 2018; Seanad Éireann debate, 6 December 2018). It is important when considering what is next for abortion services that legislators consider how the ideologies and justifications behind decades of information suppression and criminalisation can hamper the normalisation, destigmatisation and accessibility of abortion.

The intervention in the 2018 Act that is most reflective of the previous legislative framework is the mandatory 3-day delay period. The 2018 Act prohibits a medical practitioner from lawfully providing an early abortion unless ‘a period of not less than 3 days’ has elapsed between certification and the abortion (section 12(3)). It may not seem like there is a connection between the 1995 Act and the 2018 Act. The 2018 Act does not mandate counselling or prohibit appointment-making. How the 2018 government framed the delay period evidenced the ideological threads and strategic connections with the 1995 Act. Under the 1995 Act, abortion seekers had to contact abortion providers themselves. Once their appointment was made, their doctor, midwife or counsellor in Ireland could re-establish continuity of care and communicate with abortion services on behalf of their patient/client. As Minister for Health, Michael Noonan described this intervention as creating a de facto ‘period of reflection’ or ‘cooling off period’ (Dáil Éireann debate, 9 March 1995; Seanad Éireann debate, 14 March 1995). The government justified this break in care using two abortion minimisation and condemnatory principles. Firstly, proponents claimed that it would protect any crisis-driven pregnant people from making under/misinformed, rushed decisions to have an abortion. The gap was created with the hopes that she may consider any information received from a doctor or counsellor, or would seek out additional advice or support, that would facilitate or convince her to continue her pregnancy. This was the outcome that legislators believed to be in the best interest of the pregnant person. Secondly, the intervention was part of legal restrictions and requirements that demonstrated that abortion would not be, to quote Noonan, ‘condoned in law’. Abortion would remain exceptionalised within healthcare, as its gravity was such that ‘it is not a case of a woman telling a dentist she has a toothache and him telling her she should have the tooth extracted’ (Noonan, Dáil Éireann debate, 9 March 1995). Abortion was treated as a condemned intervention that required the oversight of the criminal law. Hence, while the 1995 Act permitted some lawful dissemination of information about abortion services, abortion remained an outcome to be worked against.

The 1995 Act was limited by how the government viewed their obligations to protect foetal rights to life under the Eighth Amendment and the dominance of anti-abortion ideologies generally. O’Carroll (1991) recounted that traditional thought processes mean that ‘[w]ords take on a specific and narrow meaning’ in culture and language. Abortion was spoken of as a dangerous, injurious intervention. Hence, information that affirmed or facilitated abortion was also framed negatively. Safeguarding foetal rights to life was why, Michael Noonan explained, the 1995 Act was not ‘neutral’ on abortion and barriers to access were inserted so that the law would not lean ‘too much’ towards assisting abortion seekers (Seanad Éireann debates, 13 and 14 March 1995). The information freedom in the Fourteenth Amendment was relegated by the government in 1995 to an inferior legal status to Eighth Amendment foetal protections. This reflected what Smyth (1992: 8) termed restrictive ‘political-legal linguistic formulae’ produced by law that confined women's lives to narrow possibilities. With abortion information, the foetal subject had a right to life, and this right needed to be prioritised and protected in law. However, a freedom only needed the State to ensure citizens could avail of it and not overly impede it (Dáil Éireann debate, 9 March 1995; Seanad Éireann debates, 13 and 14 March 1995). Therefore, the government did not consider pregnant people's Fourteenth Amendment freedoms in 1995 as challenging the primacy of foetal rights protections. They considered their strategic uses of information prohibitions and requirements to be legitimate, effective and required by law to achieve abortion minimisation and exceptionalisation.

The government in 2018 did not have similar constraints. The Thirty-Sixth Amendment removed the Eighth Amendment's foetal right to life. The almost two-to-one votes in favour of change signalled the electorate's support for a transformative, liberalised, abortion-seeker-centred legal framework (Referendum Ireland, 2024). An RTÉ exit poll found that 75% of respondents knew how they would vote before the campaign, with 84% of yes voters citing the right to choose as one of their most important issues (McCullagh, 2018). The government's failure to fully embrace that transformative momentum demonstrated the endurance of the ideologies and justifications behind anti-abortion information regulations. The mandatory delay period was a political decision and one embedded in a view of abortion as the option of last resort. The Tánaiste, Simon Coveney, was reportedly swayed to support legal change due to the inclusion of the mandatory delay period. His rationale for supporting the intervention demonstrated how aspects of paternalistic, anti-abortion thinking from the previous iterations of information control remained interwoven in the legislative imagination. The ‘pause period’, as he termed it, between non-directive counselling and abortion would protect pregnant people and foetal life from assumed rushed, insecure decision-making (Coveney, 2018). Another example of the use of ‘paternalistic logics' from a reform supporter was Deputy Bernard Durkan framing the delay period as a confirmation for pregnant people that they would be ‘protected, that their interests will be borne in mind and that they will be protected throughout’ the abortion process by the State (Dáil Éireann debate, 17 October 2018). The delay period would also continue to exceptionalise abortion within healthcare by communicating what Coveney (2018) termed the ‘magnitude’ of the decision to have an abortion. The Taoiseach, Leo Varadkar (2018) expressed similar sentiments when he affirmed that while more abortions would be ‘legal’, the government would seek to put measures in place to ensure it would also be ‘rare’. The delay period could contribute to this by prompting the abortion seeker to ‘reflect’ on the information that they received from their doctor in their first appointment, potentially deciding against an abortion (Dáil Éireann debate, 23 May 2018). By continuing to frame abortion these ways, the government cast the delay period as caring and protective and reflective of the wishes of the electorate, despite it being a barrier to abortion access and stigmatising. This was akin to how the 1995 Act instrumentalised information provision and breaks in care. The delay period is, therefore, an example of how the 2018 Act has not fully broken with anti-abortion information regulatory legacies.

The mandatory delay period is not the only issue with the 2018 Act. Section 23 of the Act renders it a criminal offence, with a potential fine or imprisonment for a maximum of 14 years, to ‘aid, abet, counsel or procure a pregnant woman to intentionally end, or attempt to end, the life of the foetus…otherwise than in accordance with the provisions of this Act’. Reform advocates frequently criticised the pre-2018 criminalisation of certain forms of information sharing or communications for creating a ‘chilling effect’. Woodman (1985: 200, 202–203) described foreclosures intended to avoid legal actions in media reporting as ‘censorship by anticipation’. In the area of abortion information, the Cork Abortion Information Campaign [1991] spoke of a ‘censorship mentality’ whereby people were afraid to create or share information due to the ‘spectre of illegality’ surrounding it. The Fourteenth Amendment and the 1995 Act opened up spaces in which people could be more confident about sharing abortion clinic information lawfully. However, the 1995 Act created offences and the 1889, 1929 and 1946 Acts remained operative. The 1995 Act's prohibition on advocating or promoting abortion and on assisting abortion seekers with appointment-making sustained this ‘chilling effect’ in consultation and counselling rooms. In D v Ireland (2016), A, B, and C v Ireland (2010), Mellet (2016) and Whelan (2017) applicants spoke of the issues they faced obtaining the information and guidance that they needed from their medical teams. For example, in Mellet (2013: 5), the applicant described the 1995 Act as creating difficulties for ‘healthcare providers’ differentiating between ‘“supporting” a woman who had decided to terminate a pregnancy and “advocating” or “promoting” abortion’. Mellet's medical team used euphemisms when referring to travelling for an abortion and she was referred to a family planning organisation for further information and counselling. Amnesty International (2015) described the 1995 Act as a:

…complex, unclear and confusing piece of legislation. The terms used are vague and undefined; there is no clear distinction made between information provision that is criminalized versus what is legal. Doctors and counsellors are understandably unsure of what they are permitted to say to patients, frustrating their ability to provide comprehensive, quality care to women and threatening the doctor-patient relationship.

It is unsurprising that within a hostile, anti-abortion information framework, information sharers were cautious about what they were willing to communicate or disseminate. To break with this legacy of guarded or defensive information sharing or silence, the 2018 Act should have dispensed with the previous paternalistic, condemnatory model of prohibitions. The government should have decriminalised abortion and aiding, abetting, counselling or procuring one, to protect information sharing. The 2018 Act also has gestational limits and the 3-day delay period only begins when the pregnancy is certified as being less than 12 weeks LMP (section 12(3)). There is a risk of ‘timing out’ of community GP care (post 9 weeks’ care is in a hospital) or abortion care at all as a result (Duffy et al., 2023: 55).

Sustaining criminalisation is misaligned with a legal framework that encourages informed, considered decision-making. Instead, the 2018 Act has perpetuated the condemnatory framings that drove and shaped previous criminalisation of abortion (under the 2013 Act and the Offences Against the Person Act 1861) and also anti-abortion information regulations. For example, Deputy Bernard Durkan described the 2018 Act as not allowing ‘abortion on demand’ as a way of convincing critics to support it (Dáil Éireann debate, 17 October 2018). The ‘aid, abet, counsel or procure’ offence has also arguably continued the casting of suspicion upon those who share facilitative or affirming abortion information created and sustained under the pre-2018 information regulation framework. One of the express justifications given by Michael Noonan for continuing the criminalisation of certain forms of information dissemination and communications under the 1995 Act was to prevent information sharers (i.e., doctors) from unduly influencing a vulnerable person to choose abortion (Dáil Éireann debates, 9 and 10 March 1995; Seanad Éireann debate, 14 March 1995). These actors required the oversight of the criminal law to protect vulnerable subjects. This protective imperative was adapted and reproduced in the 2018 Act. Harris exemplified this when he said

criminalising a person who does this is necessary from a policy perspective. The health and well-being of pregnant women are at the heart of this policy. Helping a pregnant woman to end her pregnancy outside of the provisions of the Bill is not in her best interests and may on occasion put her health or her life at risk. (Dáil Éireann debate, 28 November 2018)

Harris was concerned about coercion from personal connections, but he was clear that even those who helped a pregnant person as a ‘benevolent act’ were bound by this restriction (Seanad Éireann debate, 11 December 2018). There is no section 23 exemption for those who assist abortion seekers with their consent. On the surface, this may seem like a positive intervention. Illegal abortions may be unsafe, especially if a person cannot access medication abortion from trusted sources like Women on Web. However, just as calls to ameliorate vulnerabilities can be a spark for law reform, they can also be used as, to quote Munro and Scoular (2012: 191, 194) ‘a mechanism for social control’. Governments can use claimed protective laws to ‘bolster the image of the state as a benevolent force’. Especially, when vulnerability is regarded as, to borrow from Butler et al. (2016: 1), ‘victimization and passivity, invariably the site of inaction’. Considering the 2018 Act's criminalisation as part of the history of anti-abortion information regulations, there is another reason why the ‘aid, abet, counsel or procure’ offence was included. For those who favour an abortion minimisation approach, there are perceived benefits to having what Leo Varadkar described as a ‘doctor-led system’ of medication abortion provision. He said:

the doctor could talk to [the abortion seeker] about other options, which a website does not do. Options could be continuing the pregnancy or adoption. The doctor could offer the woman counselling and, of course, there would be a 72-hour period² during which women could reflect on their decision … What we want to do is put in place a new system that is much safer than the one we have now, that allows people to discuss alternatives and that is compassionate. (Dáil Éireann debate, 23 May 2018)

The criminalisation of abortions outside of the formal healthcare framework provides opportunities for information and counselling strategies that may divert a person away from choosing abortion. Framing such interventions as being for the benefit of the abortion seeker has perpetuated some of the ‘paternalistic logics’ behind the pre-2018 Act legal framework. The logics are replicated by casting doubt on the informed decision-making abilities of abortion seekers, the ability of medical professionals to provide appropriate care without potential criminal penalties, and the bona fides of those who wish to support a person to access abortion outside of the formal legal framework. The State is framed as the protector of vulnerable abortion seekers while creating legal barriers through criminalisation and the mandatory delay period. The perceived abortion reductionist potential for information provision remains implicit in law as evidenced through government justifications for continued criminalisation and interruptions in care. An additional issue is the perpetuation of the ‘chilling effect’ of criminalisation for medical professionals working within the formal system as they are not exempt from these offences.

There is another legacy issue in an area of the 2018 Act where the Oireachtas did attempt to legislate for change: conscientious objection. The boundaries of legitimacy around conscientious objection and information sharing were a long-contested part of the pre-2018 legal framework. Anti-abortion activists and the most conservative anti-abortion legislators often differed from governments and the judiciary in where they would denote the boundaries of morally and legally acceptable information sharing. A key factor that shaped these categorisations follows an observation Butler (1997: 24) made, ‘the firmer the link is made between speech and conduct … the stronger the grounds for claiming that speech not only produces injury as one of its consequences, but constitutes an injury in itself, thus becoming an unequivocal form of conduct.’ A state can respond to these injuries through prosecutions. In the Irish abortion context, some anti-abortion proponents believed that providing the names, addresses and contact details of abortion services abroad was a form of unlawful referral as it was the first step of the abortion care process. For example, the Society for the Protection of Unborn Children [1991], referred to non-directive counselling, providing clinic details, and assisting with appointment making as ‘not the simple provision of information but is active cooperation in the killing of a child’. Information providers were complicit in any abortion that followed (Coulter, 1995). The majority of the Oireachtas largely rejected this distinction by passing the 1995 Act. Michael Noonan was clear that the government differentiated between performing abortions and providing information (albeit in a restricted and controlled way) when he said of the 1995 Act, ‘this is not an abortion Bill about the procurement or assisting in the procurement of an abortion; it is about information’ (Seanad Éireann, Tuesday 14 March 1995). He did, however, amend the 1995 Act to include an express ‘conscientious objections’ clause confirming that no person would be ‘obliged’ to provide information about how and where abortions could be accessed abroad (section 13). This caveat was aligned with the 1995 Act's overall anti-abortion foundations. Noonan was clear that professional guidelines required objectors to refer people to information sharers, though he did not mandate this or a duty to disclose an objection in the 1995 Act (Dáil Éireann debate, 9 March 1995).

The 2018 Act allows for conscientious objection but requires objectors to ‘make such arrangements for the transfer of care’ so that the abortion seeker can find an abortion provider (section 22). Objections are limited to medical practitioners, nurses or midwives who may be involved in carrying out or participating in an abortion. It should not cover information provision. The 2018 Act may have been a missed opportunity for the government to disavow the anti-abortion, paternalistic logics of the past and to shape the law to affirm information sharing as a key, normalised part of healthcare delivery. The 2018 Act does not define what arrangements are required to ensure an abortion seeker is not obstructed. There are no remedies or enforcement mechanisms for those who are obstructed. All the offences therein are targeted towards those who provide or assist with illegal abortions. O'Shea (2023: 14) described the current regulatory framework as appearing to allow those who obstruct access to care through providing ‘misleading information’ to act ‘with impunity’. The same seems to apply to referral refusals. Donnelly and Murray (2020: 130) cite one interpretation of the boundaries of objection whereby it would not extend to ‘ancillary tasks’, but they state that may need to be confirmed by the courts if there is no statutory clarity. Applying to the courts is a resource-heavy and burdensome task. Due to the privileged position that anti-abortion conscientious objectors had under the previous legal framework, the 2018 Act could have confirmed duties around referrals and information provision in a more direct way. Doing so may have tackled the legacies of anti-abortion information regulations, protected information-based rights, and outlined the consequences for those who attempt to deny care through information refusals or providing misinformation. A clear, affirming approach would help with the destigmatisation of referrals and facilitative abortion information provision.

Despite barriers to access, people still choose to end their pregnancies, just as they did when abortion and information restrictions were at their strongest. Abortion seekers have long been assisted in Ireland by family planning organisations, activists and diaspora organisations. Butler (2016: 12–13) recounted that when infrastructures fail to provide ‘a liveable life’, movements can become ‘galvanized’ as people come together to address conditions of precarity. Irish healthcare systems have always incorporated state, private, voluntary and charity providers (Heavey, 2019). The notable aspect of the abortion information provision was that law largely worked against those who wanted to provide, especially after the enactment of the Eighth Amendment and before the Fourteenth Amendment. Around the Eighth Amendment referendum, information providers included multiple student unions, some IFPA staff, Well Woman, the Irish Pregnancy Counselling Centre and Open Door/Line Counselling (Farrell, 2024). After Well Woman and Open Door/Line were restrained from providing information or assistance on the basis that these activities violated foetal rights to life, the Women's Information Network was founded to disseminate abortion clinic information (Attorney General (at the relation of The Society for the Protection of Unborn Children) v Open Door and Dublin Well Woman (1988); Women's Information Network, 1993). There were also diaspora groups like ESCORT and the Irish Women's Abortion Support Group (Fletcher, 2015). When information restrictions were at their most oppressive due to the Open Door precedent, one clinic in London noted that due to the ‘phenomenal information network’, many abortion seekers were still able to access care abroad (Holmquist, 1990). The 1995 Act, despite its issues, brought positive changes. Three years after its enactment the IFPA stated, ‘…for these women [who sought counselling] things have changed a lot – and for the better’ (O’Brien et al., 1998). Conversations could be more open and direct. However, the barriers sustained by the 1995 Act meant that many abortion seekers continued to rely upon volunteer organisations like the Abortion Support Network, online abortion medication services like Women on Web and Women Help Women, and overseas hospitals and clinics to find out how and where they could access abortion care. The people involved in information dissemination and assisting with abortion travel did so because they wanted to prevent the further vulnerabilisation of abortion seekers. They were also committed to affirming choice, centralising the agency of pregnant people and challenging dominant anti-abortion ideologies. Information sharing was a form of practical assistance and an act of resistance.

In his opening speech to the Oireachtas about the 2018 Act, Simon Harris said:

I look forward to an Ireland where any woman facing a crisis pregnancy can be assured that she will be treated with compassion and able to access all of the care she and her family need in this, her country, supported by those who love and care for her. That is the objective of the Bill… (Dáil Éireann debate, 4 October 2018)

His statement demonstrated how arguments in favour of reform intended to ameliorate vulnerabilities are, to borrow a phrase from Munro and Scoular (2012), a powerful ‘descriptive, rhetorical, and political device[s]’. The government intended to legislate so that people in Ireland could rely upon home support and health care. Yet, the 2018 Act, by creating barriers to care through the mandatory delay period, criminalisation and unchecked obstructors, has sustained another pre-2018 information dynamic for many: the need to rely upon volunteer groups and overseas services. Clarke (2019) said of the Abortion Support Network, ‘[after the referendum] everyone was telling us that ASN could close now. We knew that we would never be able to close … having us, a small charity in another country, as your safety net, is failing some of your most vulnerable people’. ASN and Women on Web are still providing information and assistance to Irish abortion seekers (ARC and Grimes, 2021; Conlon et al., 2022; RTÉ, 2024). As Enright (2022: 7) rightly stated, it is ‘irrelevant that some help is available from private charities such as the Abortion Support Network; the state cannot delegate its responsibilities to them’. The 2018 Act perpetuates the need for these groups and hospitals abroad to continue advising and assisting some abortion seekers from Ireland. By interrogating the rationale behind those barriers, it is evident that strands of the anti-abortion, paternalistic thinking that moulded the pre-2018 information regulations are still present in parts of the 2018 Act.

Part four: Dispelling legacies and law reform

Since its enactment, activists, academics, NGOs and the Department of Health have published studies into the experiences of abortion seekers under the 2018 Act. As I discussed above, removing the pre-2018 Act anti-abortion information framework has allowed for a more open and facilitative approach to information provision. Post-2018 research has also demonstrated that the remnants of paternalistic thinking and abortion exceptionalisation continue to have some negative impacts. There are accounts of people post-diagnosis of a foetal anomaly being handed hospital information on sheets of paper, being spoken to in guarded language, having to weigh up options for testing while considering travelling before the cut-offs for gestational limits in England and staff being 'wary' of sharing information about abortion services abroad despite it being legal to do so (Conlon et al., 2022; TMFR, 2022; ARC, 2021: 68). Other abortion seekers experienced information refusals, directive counselling and received mis/disinformation (ARC and Grimes, 2021; Chakravarty et al., 2023; Grimes et al., 2023; Mishtal et al., 2022; O'Shea, 2023). Some abortion seekers were wary of engaging with counselling due to concerns over ethos or unwanted information provision, while others viewed it primarily as an unnecessary aid to decision-making (Conlon et al., 2022: 125; Grimes et al., 2022). ASN has helped people unable to access an early abortion as the delay period pushed them over the gestational limits or they were delayed by rogue organisations (Kennedy, 2021). Such experiences increased stress and risked timing abortion seekers out of care. The delay period, criminalisation, and gestational limits created or augmented crises. The 2018 Act, as it currently stands, impedes the development and operation of a fully trusted information and advice infrastructure that centres informed, conscientious decision-making and the agency of pregnant people. The Oireachtas must examine how law has perpetuated the condemnatory ‘chilling effect’ that should have been left in the past with the repeal of the pre-2018 information legal framework.

The Independent Review of the Operation of the Health (Regulation of Termination of Pregnancy) Act 2018 was commissioned by the government in 2021 to examine the operation of the 2018 Act as part of the statutory review obligations (section 7). The initial responses of government members to The Review were not encouraging from a law reform perspective. They rejected the idea of amending the 2018 Act using reasons reflecting the same claims that limited the transformative potential of the legislation; this is what the Irish people want and is needed to protect vulnerable subjects. For example, former Taoiseach Leo Varadkar continued condemnatory framings of abortion by stating, ‘I don't think anyone thinks that abortion is a good thing. It's sometimes necessary but it's not a good thing’ (Bray, 2023). This opinion may shape how the government interprets their mandate to create a legal framework based on what they believe to be ‘in the best interests of women and children and infants' (Leo Varadkar in Young, 2023). The government held firm in their adherence to the 2018 General Scheme to justify barriers like the mandatory delay period (Sherlock, 2023). Their focus is operational, to optimise existing service delivery. The Minister for Health, Stephen Donnelly, has even criticised an opposition Bill – Health (Regulation of Termination of Pregnancy) (Amendment) Bill 2023 – for going ‘miles beyond what people voted for’, in his opinion (Clarke, 2023). That Bill proposed to address some of the enduring issues by removing the delay period, decriminalising abortion, and expanding gestational limits until foetal viability or if the foetus is not expected to live longer than a year after birth. Instead of addressing the sources of injustice and inequality, part of which may be tied to the troubling legacy of information restrictions, this government seems to be continuing what de Londras (2020: 35) described as a ‘troubleshooting’ approach within existing legal parameters.

There is hope, however. Arguments invoking the need to protect vulnerable subjects can motivate governments to reform oppressive laws and address legal vacuums. The electorate should not object to such changes as polls, research, consultations and post-Eighth Amendment referendums have demonstrated that when asked, many favour a more liberal approach than legislators, or have rejected more restrictive proposals (Farrell, 2024). Once acknowledged, the progressive orientation of the majority of the electorate may open up spaces in which governments feel secure and obliged to reform the law once more. The Health (Termination of Pregnancy Services) (Safe Access Zones) Act 2024 is such an example. It prohibits communications that are intended to influence the decision of a person to avail of, or to provide, abortions within 100m of an abortion healthcare premises (section 2). This legislation was promised in 2018. However, in 2021, the media reported that the government had scrapped plans to introduce it (Loughlin, 2021). Instead, existing public order legislation would address protests or harassment. Stephen Donnelly contested these reports, stating that he was ‘fully committed’ to creating ‘safe services for all women’ (Department of Health, 2021). Now, through the 2024 Act, abortion seekers and providers have a form of protection and grounds for complaint against anyone attempting to sway their decision-making through protests or attempts at ‘sidewalk counselling’ (Coyne, 2018c). The introduction of this legislation demonstrated that this government, or a future one, may be open to amending the existing framework to better reflect the transformative vote in 2018. Such changes could tackle enduring hardships and reduce the effectiveness anti-abortion instrumentalisation of information provision or restrictions.

In the first instance, the mandatory delay period should be abolished. It is paternalistic and fails to account for existing infrastructural or resource-based delays. Abortion seekers should be empowered to request information and space as they need them to make an informed, secure choice. Decriminalisation including of the ‘aid, abet, counsel or procure’ offence – and removal of gestational limits will assist with this as people can have more open conversations, engage in counselling, and wait for test results. The law in Ireland should move on from a system that was sometimes guarded due to legal requirements. It needs to be clear that there will be no criminal or professional consequences for those acting with the informed consent of their patient/client and in accordance with evidence-based care. Otherwise, some abortion seekers may have to continue to rely upon the kindness and capacity of volunteers and international healthcare systems. It may also be desirable to prohibit obstructive information practices such as denials of information or the provision of mis/disinformation. Such measures may be difficult to enforce if obstructors adapt their strategies, so these efforts would need to be coupled with non-legal approaches such as additional promotion of MyOptions as a source of abortion information and additional professional training on ethical duties or values clarification workshops. Removing barriers to care will also assist those who encounter obstructors, as they can access abortions at a later date. These changes will help to facilitate access, reducing the risk that pregnant people will be vulnerabilised based on their decision to have an abortion. Such reforms would also continue the destigmatisation of abortion. A final small but important change that would also assist with the normalisation of abortion would be to remove the final eight books prohibited for advocating abortion from the Register of Prohibited Publications (Censorship Board, 2016). Revoking the prohibition orders would be a symbolic gesture, signalling the end of the decades of the suppression of counterhegemonic and facilitative abortion information. As ‘Martha’ remarked in Conlon et al.'s (2022: 140) study, ‘the law has come a long, a long way but it hasn't come far enough’. All that is needed is the political will and the legislative courage to dispense with the legacies of anti-abortion information controls once and for all.

Conclusion

In this article, I detailed how the referendum in 2018 provided the space, political will and legal means to remove regressive anti-abortion information legislation. This involved repealing the 1995 Act and removing the advocation of abortion from censorship laws. Now there is a framework that can address anti-abortion mis/disinformation, harassment, intimidation and misrepresentation in counselling and outside of abortion service premises. I noted the positive impact that this has on abortion care provision in Ireland. Next, I argued that there was more work to be done to dispel the legacies of paternalistic and anti-abortion information law-making fully. The continued influence of these ideologies limited the transformative potential of the 2018 Act. The government legislating for abortion in 2018 introduced a mandatory delay period and failed to fully decriminalise abortion, including an offence to ‘aid, abet, counsel or procure’ an abortion outside of the provisions of the Act even in cases where the pregnant person gave her consent. They did so using the familiar arguments that they were protecting vulnerable abortion seekers and it was the will of the Irish people that such barriers remained in place. As a result, not all abortion seekers are experiencing care in Ireland in an affirming way. Compounding this is the risk that abortion seekers may meet a conscientious objector/obstructor or will have to rely upon volunteer or overseas providers for information, advice and assistance. To conclude, I demonstrated that change is possible, as evidenced by the 2024 Act. To tackle the enduring shadows of the information strategies that sought to dissuade or divert people away from abortion, the government should remove the mandatory delay period, decriminalise abortion – including the ‘aid, abet, counsel or procure’ offence – and remove gestational limits. Legislators should amend the legal framework to ensure that it does not operate as a barrier to wider abortion provision or to destigmatisation and normalisation. Information regulations and infrastructures should centre the needs of abortion seekers, the conscientious providers who wish to help them, and treat abortion as a legitimate option.