Abstract
Drawing on feminist social reproduction theory and its concern for time spent reproducing the workers of tomorrow, this paper turns to Ireland's new periodic abortion law as a key source of knowledge for social reproduction. I show how law takes different qualitative approaches to measuring reproductive time as it uses a 12 week time limit to distinguish between better and worse reproductive subjects in a context of time poverty. I develop an account of calendaring, with its timelines, punctuations and paces, as a key concept of social reproduction that explains these different legal approaches. Calendars plot reproductive timelines with abstract and concrete moments; they punctuate timelines with different expectations of timeliness, and pace progress with administrative procedures like deadlines and waiting periods. In the process, some become entitled to abortion as timely subjects, others have to make a special case for their exceptional timeliness, and the possibility of being timed out of access threatens all with uneven effects. Periodic abortion law plays a key role in reproducing timely subjects and generating techniques for managing reproductive life cycles in capitalist societies.
Introduction: Time-Limited Abortion Law in a World of Reproductive Contradictions
On and off the job, abortions mark working time (Enright, 2017).
The uneven dynamics of global abortion regulation are capturing critical attention anew as feminist concern over the fragility of reproductive freedoms strikes home. Abortion restrictions are in flux as crises of care make contradictory demands of pregnant people as reproductive labour. Time-limited or periodic abortion laws offer a significant site for considering these tensions. They seem to bracket contradictions between pro-natalism and anti-natalism even as they also mark progression or regression in the struggle for reproductive freedom. Making abortion lawful for a limited period of pregnancy has been greeted as a significant win in countries like Ireland and Argentina (Browne and Calkin, 2020; Ely Yamin and Ramon Michel, 2023; Fletcher, 2018) by enabling abortion to become generally lawful and more than a therapeutic exception to criminalization. In other countries, notably the USA after
Critical analysis of global trends in abortion law, whether those trends are scaled at local, municipal, national, transnational or international levels (Calkin et al., 2022), could benefit from a renewed engagement with materialist feminist analysis of social reproduction (SR) and the gendered division of labour (Kotiswaran, 2023; Rigo and Alessandrini, 2023). A SR approach is vital for explaining the contradictory push and pull of abortion law because it sees pregnancy and ‘biological reproduction’ as labour (Bryson, 2022; Elias and Rai, 2019). In growing the workers of tomorrow, gestational labour is a practical human activity which contributes to the generation of value for capitalism in the world at large by turning natural reproductive materials into capitalist resources (Lewis, 2021; O’Brien, 1981). SR locates the reproductive labourer as an embodied and stratified site of tensions generated by capitalism's need for and of labour power (Bhattacharyya, 2018; Colen, 1995). And, SR provides feminist analysis with time as a key category of care labour (Elias and Rai, 2019; Everingham, 2002) whose rhythms take and make their own space even as they are compressed and re-arranged to fit with capitalism's speedy schedules.
Moreover, abortion law has been an under-used source of feminist theory (Petchesky, 1990; Smyth, 2005) that could contribute to the further development of the concepts and methods of SR. As abortion law periodises pregnancy in order to distinguish between reproductive subjects, it has generated a collection of timely mechanisms that warrant further analysis. These time-limited legal processes have been noticed for their role in constitutionalising abortion (Siegel, 2012), and in moving abortion law from a criminalized framework towards a more administrative health care framework, if unevenly and with ongoing contestation (Baird, 2017, 2024; Goodwin, 2020; Krajewska, 2021; O'Shaughnessy et al., 2023; Sanger, 2017; Sheldon et al., 2022). Typically such laws make abortion lawful for a defined period of time (e.g., 12–24 weeks), while also specifying grounds or indications (e.g., a risk to health) that have to be met to make abortion lawful in particular circumstances. They tend to be understood in the literature as the result of pragmatic compromise between political constituencies (Siegel, 2012), as a collection of timely processes which raise questions of substantive justice (Erdman, 2017; Millar, 2022), and as concrete barriers to reproductive rights provoking movement across borders (Beynon-Jones, 2012; De Zordo et al., 2023). If we build on this work to think more about the significance of
Momentous legal change, like Ireland's 2018 adoption of a time-limited abortion law, is of interest because it has something to tell about how law reproduces time, time that is itself socially necessary for the work of life-making. In 2018, Ireland moved to lawful abortion after 35 years of a campaign against a constitutional prohibition adopted in 1983 (de Londras and Enright, 2018). The year 2018 also fell during the ‘decade of centenaries’ and a period of ambivalence about the legacy of the young partially decolonized state (Frawley, 2021). The discovery of the remains of 796 dead babies on the grounds of an old mother and baby home brought to the fore the anxious reckoning with a history of gendered incarceration and forced family separation (Barry, 2022; O’Donovan, 2021). The ongoing struggle to make ends meet in the presence of precarious employment, poor social housing, inadequate public health care, and privatized child and elder care, has also made gendered harms and time poverty explicit (Murphy, 2015), particularly after the failure of the Celtic Tiger years of apparent growth and prosperity (Kirby and Murphy, 2011). If Ireland celebrated repeal of the Eighth Amendment and all repeal signified for a shift in legal recognition of gendered labour, it did so at a time of profound local as well as global crisis in care (Fortunati, 2023; Fraser, 2016). In this context, the different qualities of lived time (Elias and Rai, 2019) are not likely to be well understood by a mechanical counting of time with a regular and predictable clock. Rather the dynamics of legal change could tell us something about how people and communities are being sutured together for SR. How is this new periodic abortion law shaped by lived time of different qualities even as it also works with more abstract clock time in moving reproducers along?
The paper argues that abortion law reproduces reproductive labour time by calendaring, punctuating and pacing pregnancy. These techniques anticipate the contradictory needs of capitalist SR and reproduce abortion-seekers as timely subjects, that is as those who may become free of gestational labour, if they keep to time. As a result, we can see that abortion law brings a planned and timely reproductive subject into being at the individual level, while differentiating and stratifying gestational labourers as ‘good’ and ‘bad’ reproducers. The reproductive subject who is allowed to free herself from pregnancy is no longer only the exceptional subject in crisis, who may have an abortion because she cannot reproduce her own life without relief from pregnancy. Rather the reproducer has also become visible in law as the ordinary subject who manages any pregnancies efficiently through early and low cost intervention, or not. She is called on to respond flexibly to capitalism's need to combine reproduction of labour power with participation in productive societies. She is policed by the threatening possibility that she will be fixed in her pregnancy and subsequent parenthood unless she meets the abortion deadline. And she is disciplined for being late in meeting the deadline by being denied relief unless she can prove her worthiness for abortion on exceptional grounds, or take herself elsewhere.
I make this argument through the following steps: The next section shows how social reproduction contributes a theoretical framework for understanding how the regulation of reproductive biolabour time in pregnancy is a contribution to patriarchal capitalism and a key site for constituting the gendered division of labour, in all its racialised, able-bodied stratifications. The section on calendering develops an account of the calendar as a concept for SR theory in explaining how reproductive timelines are plotted with abstract and concrete moments so as to move the reproducer along. Calendars work with these material moments to distinguish between overlapping timelines of general legality and exceptional legality, and use them to suture together individual, social and environmental reproductive life cycles. Such a concept of calendaring enables the identification of historical and geographical changes in how reproductive timelines are plotted, and it enables identification of sources of material time as captured by law, sources that law has acquired through struggle, and may be reclaimed and repurposed for freeing reproducers.
The section on punctuating argues that calendaring enables the
The resulting analysis shows how abortion law takes time for SR by making the ordinary lawful withdrawal of gestational labour subject to time constraints, by specifying when time spent on SR counts for ordinary or extraordinary access to abortion, and by gathering together an administrative infrastructure for overseeing the role of timely abortion in the reproductive life cycle. These are processes which feminist activists are already reworking, including through their transformation (Duffy, 2024; Gago, 2020). If we expand the collection of concepts and methods for understanding the wageless value of time spent on SR, we can also contribute to the practical identification of features of time-limited law that could be reproduced otherwise. As Alessandrini says, institutional arrangements need not to be conceived of as blueprints for action, but as platforms for provocative practices that may disrupt dominant value-making processes (Alessandrini, 2018: 408).
Social Reproduction
In the 8-hr rest period, who is getting up at night for the baby? It would appear that the rhythmic temporalities of household life sit at odds with a model of daily life that has been set by the regularities and certainties of Fordist production. If we are seeing the emergence of global households then what does that do to time? (Elias and Rai, 2019: 212)
Social Reproduction’s key theoretical insight has been that capitalism draws on
Here I put to one side these distinctions and the debate about whether reproductive is productive, and instead focus on tracing how time counts for law as it regulates reproductive labour time. As Kotiswaran and others have argued, law is a key source of knowledge about continuity and change in the naturalisation of the gendered division of labour (Kotiswaran, 2023). Sometimes law participates in these processes in spectacularly violent ways. Federici's account of the European witch hunts as the violent re-arranging of gender relations, locates this violence just at the historical moment that capitalism was expanding its territories of accumulation through colonialism
SR scholars are
While the subjectivity of the housewife has had a strong hold on SR's conceptual imagination, other reproductive subjects involved in different kinds of life-making, inside and outside households, also have something to tell us about SR. Waldby and Cooper have analysed how the ‘clinical labourers’ who donate reproductive materials including eggs, sperms and embyros, have played an important role in enabling biocapitalism to expand its reach into new bodily and border-crossing terrain (Cooper and Waldby, 2014). Like domestic labourers they are typically unpaid for this work, although some receive partial compensation through expenses, and their contributions are necessary for biocapitalism to proceed. Unlike domestic labourers they are providing bodily materials directly to the scientists employed to pursue clinical research and expand capitalism's power to accumulate from bodies. Surrogates may be paid, partially compensated or unpaid as they are called on to share their gestational labour and turn kinship itself into a collaborative activity into which others are contracted or invited (Lewis, 2021; Unnithan, 2019). As clinical labourers and surrogates have made these reproductive contributions visible less as nature and more as biolabour, they have also shown how reproductive subjectivity moves in and out of the boundaries of the household. Abortion-seekers on the move may also be understood as alienated reproductive subjects who are called on to manage pregnancy withdrawal in ways that suit the relationship between capital accumulation and SR (Bryson, 2022).
Counting the time that is spent on unpaid care labour has been an important step in making capitalist reliance on SR visible (De’Ath, 2018; Elias and Rai, 2019). Time use surveys are one of the key methods used to measure time spent on SR and to enable mitigation, replenishment, and transformation of depletion. As Elias and Rai note, however, time use surveys tend to privilege quantitative methods and to flatten out key qualitative differences in lived time. One key qualitative difference lies in the distinctions between cyclical rhythms and linear clock time as they have made themselves felt on schedules working across caring and working lives (Conaghan, 2006). The rhythmic needs of human bodies for sleep and nourishment cannot be transferred to another. They have to be serviced in some way. But they can come to be accommodated in ways which combine cyclical rhythms and linear clocktime. Grabham's concept of brewing legal time with human and non-human materials as activist lawyers draw on the properties of cells to count the progression of HIV-related illness and make a claim for a disability-related payment is one example (Grabham, 2016). Chowdhury's work on how adjudicative temporalities stretch factual timelines, through feminist mobilization in defence of survivors of domestic violence, as they mix abstract and concrete time is another (Chowdhury, 2020). The work of juggling qualitatively different timelines becomes another kind of reproductive labour extending out from the household to any place where people are making time for each other (Elias and Rai, 2019). In seeking to understand further the qualities and processes of time as a site of SR, such distinctions between abstract and concrete temporalities, between human and non-human materials, and their generation of timelines for juggling and co-ordinating, could be useful.
Thinking with pregnancy as unpaid gestational labour time also allows struggles over abortion to be understood as struggles over the withdrawal or redeployment of labour (Kubisa and Rakowska, 2018), against the alienation of reproductive work (Brown, 2019), and for the freedom of those who do the unwaged work of producing life (Bryson, 2022). As Federici says, the significance of feminist analysis of SR is not just about identifying the field of SR activities that contribute to capitalist appropriation of gendered care labour (Federici, 2019). It is also about understanding the forms of exploitation and extraction that happen in the field of SR, and enabling the generation of conceptual and practical knowledge for their transformation (Bhattacharyya, 2018; Cruz, 2018; O’Donnell et al., 2023). Noticing how gestational labour time has taken legal form in order to hold reproducers to someone else's timetable could contribute to the generation of transformative knowledge for the freeing of reproducers.
Periodic abortion laws offer feminism a platform for imagining and actualizing (Cooper, 2013) transformative interventions (Houghton and O’Donoghue, 2023), a platform which is being stormed by feminist abortion activists around the world (Bloomer and Campbell, 2022; Enright, 2017; Gago, 2020; Kubisa and Rakowska, 2018). In turning to abortion law and its time-limited processes for determining when reproducers may lawfully exit pregnancy, I read legal processes as material knowledge (Kotiswaran, 2021; Rigo and Alessandrini, 2023). I pay particular attention to periodic abortion law as a collection of legal processes that take time from life's reproducers without necessarily going through the wage relation. If we are better to understand, and challenge, the injustices of taking time from people and environment with little or no return, we could learn more from time-limited abortion law.
The adoption of periodic abortion law is a fruitful site for investigating how law makes reproductive time run. The change to Ireland's constitutional and criminal law could be considered as a significant ‘transitional’ stage of modernisation. Indeed Ireland seemed to accelerate from a world of highly restrictive abortion law to one which made abortion lawful with no restriction as to reason, albeit to a time limit. The transitional moment held together calls to address legacies of violence against reproducers of all kinds (O’Donnell et al., 2023) with hopeful calls for the future of an aspirational and decolonizing state living with partition, peripheralization and privatization. If Ireland had been ‘out of time’ (Rao, 2020) in its past refusal to allow pregnant people to withdraw from pregnancy, the abortion referendum, much like the marriage equality referendum 3 years before, was perceived 1 as an opportunity to come into modernity's time (Enright, 2024: 24). But these ways of thinking about the legal reproduction of time and temporality focus on its significance at the general level of the state as it faces outwards to the world. If we turn to the collection of legal processes that are actually involved in making that law operate perhaps we can observe something else about its contribution to SR.
The new legal framework
2
for administering gestational labour time is typically understood as having delivered material legal change by enabling partial decriminalization of abortion (De Londras et al., 2022a; Taylor et al., 2020), ‘free’ public provision, and ‘on request’ criteria for abortion access with a harsh 12-week cutoff point (O'Shea, 2023). The legislative process followed a constitutional referendum on 25 May 2018 (Browne and Calkin, 2020; Fletcher, 2018) where 66.4% of voters voted to repeal the Eighth Amendment which protected a foetal right to life, and to replace it with the Thirty Sixth Amendment, a clause enabling the legal regulation of abortion. The new abortion framework has been criticized for failing to deliver for particularly vulnerable groups of abortion-seekers and for letting down some of the constituencies who had worked so hard to bring it into being. If we ask how does this time-limited law actually understand the reproductive time into which it intervenes what might we find? The use of legal categories of time for the purposes of periodising pregnancy and making abortion lawful is not entirely new. Concepts such as quickening, fertilisation, emergency and foetal viability are older features of abortion law that also mark the passing of pregnant time. Some of them continue to play a role in providing a justification for applying different criteria of lawfulness to abortion. But contemporary periodic abortion laws are distinctive in their use of
Calendaring: Plotting Reproductive Timelines with Abstract and Concrete Moments
[T]emporalities of pregnancy are irreducible to a linear timeline of ‘trimesters’, progressive ‘life stages’, or the bare temporal rhythms of biology (Browne, 2017: 33)
Calendaring abstracts social time as it turns connections between life events into a calculable series of lines across a month, or a year, or a lifetime. But calendars cannot abstract completely because they need concrete moments of time to anchor themselves and generate some movement for SR. Rather than see calendars as organizing historical time into units such as years, decades and centuries (Browne, 2013: 99), I’m interested in how calendars enable scheduling and the synchronization of different lived times. Capitalist clocks have long intervened into and calendared workers’ lives with a wide range of schedules, including retirement ages, holiday entitlements and contracted working time (Adams, 2022). The time of pregnancy, childbirth and childcare has also been organized around working schedules that are invested in managing institutional resources, including hospitals, schools and workplaces, in predictable ways (Murphy-Lawless, 1998). All of these processes have been the site of significant legal struggle as workers and reproducers have looked for calendared time to accommodate moments of rest, care and play, and recognize that time has different qualities, qualities which may need repair and future investment (Conaghan, 2006). But the work performed directly by law on the time of gestational labour, as it marks out different periods of pregnancy and grades the rights and restrictions that are attributed to them, is less well understood.
If we conceptualise calendars as being involved in a struggle between concrete lived time and abstract clock time then we can learn about the legal calendaring of pregnancy by asking how calendars fix on actual events in lived time and unfix pregnant time with abstractions. There may be no ‘natural’ time that is not also affected by social arrangements since the cycles and rhythms of our ‘natural’ bodies and environments are saturated with social effects of all kinds (Adam, 1995). But there are still limits on this natural time of the reproducer who after all can be killed by pregnancy (Murphy-Lawless, 1998; Murray, 2016). Critical analysis with time could move beyond older Durkheim-influenced binaries of social v natural time, clock v rhythm, and instead watch out for the many different social times that continue to circulate with and through clock and cyclical time. Rather than see calendaring as a purely linear process driven by the ever expanding needs of capitalism, here I think about calendaring as an always already multi-dimensional process which combines and recombines cyclical and clock time for the purposes of moving reproduction along. Calendars involve plotting life's moments along a timeline that joins up an individual life cycle with the ongoing life cycle of the world. They enable movement and measuring for reproductive purposes.
When we look at the impact of periodic abortion laws, such as Ireland's new statutory framework, 3 we can see how an abstract time limit (of 12 weeks in this instance) divides the legal pathways to abortion into those that are generally lawful and those that are exceptionally lawful. The effect of the time limit is to move beyond an exceptionalised approach and make abortion generally lawful subject to the abortion seeker meeting certain procedural considerations. In Ireland those considerations are that the pregnant person must be certified by a medical practitioner as having met the time limit and having waited 3 days between initial certification and the abortion (see Section 12 of the 2018 Act). This ‘early’ pathway is the most used in practice and the most significant in terms of legal change. 4 It changed Ireland from being a legal jurisdiction where abortion was only permitted when a woman's life was at real and substantial risk, to one where abortion is legally permitted without restriction as to reason.
But time-limited pathways of abortion's general lawfulness do not typically replace the old exceptional pathways to abortion, they co-exist with them. Exceptional pathways to abortion run alongside time-limited pathways, it is just that they only become practically useful after the time-limit. Ireland's periodic abortion law is explicit in adopting three kinds of exceptional pathway to abortion under Sections 9–11 of the 2018 Act, which require a special case for abortion to be made. The exceptional grounds for such a special case are: where there is a risk of serious harm to her health or a risk to her life (Section 9), where the pregnancy has a condition likely to lead to the death of the foetus either before, or within 28 days of, birth (Section 11), or in an emergency where the pregnant person is in immediate need of life or health-saving intervention (Section 10). In this way we can see that calendaring pregnancy with an abstract time-limited point on the reproductive timeline enables a distinction to be made between the general and exceptional lawfulness of abortion so that abortion freedoms may be assigned to gestational labourers in different ways.
The adoption of calendar weeks as a measure for legal abortion pushes back against legal scrutiny of a woman's reasons for needing to withdraw from pregnancy. During the reform process, the Citizens Assembly and others seemed to be persuaded by the rationale that a time-limited approach would prevent abortion-seeking rape victims from being scrutinised for their reasons (Citizens Assembly, 2017; Farrell et al., 2019). Legal calendaring with abstract time also pushes back against foetal development (e.g., viability) as another common marker of gestational time, enabling law to become less foetocentric. As calendar weeks enable a counting of time without direct reference to women's deteriorating health or to markers of foetal growth, gestational time becomes abstract in useful and not so useful ways. But the process of legal abstraction is not one way or singular since the measuring and scheduling of legal time needs material moments of lived time for marking its progress through stops and starts. The lived experience of reproduction and the stages of foetal development may be backgrounded by the abstractions of calendar time, but they do not fade from the scene altogether. Calendaring also works by finding and selecting-in concrete moments when it needs to fix abstract time in order to enable measurement and movement.
One of the interesting features of periodic abortion laws is that the need to measure gestational time has produced a need to identify a legal starting point, a starting point which typically starts with menstrual time rather than with conception time. Ireland's statute is explicit in drawing on menstruation and specifically the first day of a last monthly period for marking out the starting point of pregnancy, and the moment from when 12 weeks will run. Other key moments that mark out the calendar for general lawfulness include the moment of medical certification and the moment of the mandatory 3-day waiting period. The exceptional pathways on the other hand are calendared using moments of health deterioration, foetal viability, neonatality and crisis as well as medical certification, which do different work in measuring the weight of gestational time and deciding when a reproducer may be relieved of pregnancy. Abortion law's calendaring of pregnancy provides interesting insights into the moments of a reproductive life cycle that come to matter, the schedules that need to be co-ordinated, and the kind of resting time that is accorded, or not, to pregnant reproducers.
Menstrual time is typically understood to be cyclical, rhythmic time, rather than clock time, given the monthly repetition of events that are necessary for human reproduction (Steele and Goldblatt, 2020). This cyclical time is sensitive to the rhythm of the natural world and to technological interventions including contraceptive pills, and is not well represented by the clock as a measuring device. The formal recognition of the first day of the last menstrual period as the first day of pregnancy displaces conception, whether through heterosexual or in vitro fertilisation, as the previous legal staring point for measuring pregnant time. This legal location of pregnant time firmly in the cycles of the menstruating person is significant in its choice of the menstruating body as the reference, and in the doctrinal use of cyclical time for the purposes of measuring legal starting points. Calendaring pregnancy into different periods of gestational time (before, and, by implication, after 12 weeks) in order to differentiate between criteria for general lawfulness of abortion and criteria for exceptional lawfulness, enables differentiation between timely and untimely reproductive subjects. Calendaring makes reproductive labour time tangible by counting out gestational time with material moments, material moments of cyclical, professional, unhealthy, foetal growth and emergency time, moments which may go on to be reproduced otherwise. As abortion law claims time for reproductive growth from the biolabourer, it displaces the old pregnant timeline that ran from conception to birth with a new reproductive timeline that runs from menstruation to neontality.
As Adébísí says, the assumption that there is a single measure of time ‘serves, among other things, to make what is contrived and constructed seem natural and inevitable’ (2023: 136). Rather we can use the calendar as a concept for critically reading legal processes of time. Calendars invite us to ask what moments of abstract and concrete time are being used to mark out periods of lawfulness and to identify how legal time will be measured. Calendaring has the effect of enabling law to distinguish between periods of pregnancy when abortion is generally lawful and periods when abortion is exceptionally lawful. As they move between abstract and concrete time, legal calendars take a collection of moments of lived social time and plot them so as to distinguish between ordinary and extra-ordinary or exceptional abortion needs. Observing how such calendaring distinctions work in turn enables legal differentiation between ‘good’ timely reproductive subjects who are permitted to become free, and ‘bad’ untimely reproductive subjects who are only permitted to become free if they meet exceptional criteria. Stratified reproduction needs law to make such distinctions and legitimate treating racialized, classed and differently abled reproducers as if law's violent refusal of abortion is their fault. Calendaring generates reproductive subjects who seem equal as potential producers of future people before the law, but actually are treated differently.
Punctuating: Generating Differentiated Expectations of Timeliness
The girl's long walk ends at the Mercy school, where tardiness might earn you a smarting whack on the hand. The children from the home are always late to school – by design, it seems, to keep them from mingling with ‘legitimate’ students. Their oversize hobnail boots beat a frantic rhythm as they hustle to their likely slap at the schoolhouse door (Barry, 2022: 29).
Calendaring pregnancy has the effect of enabling timeliness to emerge as a justification for abortion's lawfulness, and of enabling some abortion timings to be depicted as better than others. Timeliness becomes an expectation of the individual reproductive subject as distinct from the public institution whose fair distribution of reproductive healthcare is held accountable in terms of timeliness. When abortion is made lawful on exceptional grounds in a criminalised framework, the justifications are effectively some version of rescuing the pregnant person from a crisis of self-reproduction. But when abortion is made lawful by reference to a procedural time-limit, ordinary timeliness is revealed as a substantive expectation of legal subjects, a normative expectation that punctuates pregnancy anew and calls for legal accommodation (Erdman, 2017; Millar, 2022). In the same moment that the legal form makes timeliness an explicit legal expectation, it also enables a differentiation between the general and the exceptional, the ordinary and the extraordinary, a differentiation which is mapped onto the time limit. This is a differentiation which is now brought within law, since exceptionality is no longer the sole marker of lawfulness but works together with timeliness to mark out the boundaries of lawful abortion. In the process, law reproduces a distinction between earliness and lateness and uses it to mark some abortions as more respectable than others. Early abortion, abortion before the time-limit becomes generally lawful irrespective of its reasons, while late abortion, abortion after the time-limit, becomes exceptionally lawful and needs to make a special case.
As early abortion emerges as a category of general legality, it risks reproducing the assumption that early abortion is better because the foetus is less developed. Foetal growth is no longer the explicit marker of abortion's legal justification, even if it still hovers there as a background reference point for counting more abstract time. Some medical ethics accounts regard an early abortion as normatively better because the foetus is less developed and is more lacking in the kinds of capacities which are typically referenced as entitling it to legal or moral status (Greasley, 2017; Romanis, 2020). In assuming that foetal growth is the human process that matters for assessing justifications for abortion, they obscure the work of the gestational labourer in growing the embryo or foetus into a child. A SR perspective allows us to appreciate that periodic abortion law punctuates pregnancy with normative timeliness in ways which centre foetal growth, obscure gestational labour, stratify gestational labourers and schedule abortion to suit productive timetables. Calendaring pregnancy with an abstract time limit decentres foetal growth as a concrete referent and allows other concrete referents, such as the work of pregnancy, to come into view.
If we focus on how periodic abortion law calendars gestational labour, the time limit comes into view as a means of incentivising early abortion and encouraging a low-cost intervention into the pregnant labourer's own ability to repair herself. This provides a less explicitly foetocentric way of understanding timeliness as earliness, but turns the timing of abortion practice (Beynon-Jones, 2017; Lee and Ingham, 2010) into a means of stigmatisation and discipline. Pregnant people typically access abortion as soon as they can because an earlier abortion is better for the person in the sense of requiring less intervention and having less risks (Erdman and Johnson Jr, 2018; Smith and Cameron, 2019; Upadhyay et al., 2014). Therefore, we could recognise ‘early’ as becoming an important legal threshold partly in response to women's abortion practice (Spillane et al., 2021; Upadhyay et al., 2022). The calendared timeline with an abstract end-point is one that actually accommodates most abortion practice by incentivising early use of abortion and making the withdrawal from pregnancy as efficient and low-cost as possible. But when law turns the end of ‘earliness’ into a deadline, whose breach has harsh consequences for pregnant people, it disciplines ‘tardiness’ and the perceived failure to be punctual.
If we look at the legal criteria for the other pathways to abortion from a time perspective we can see how they are generating implicit norms of exceptional timeliness and differentiating between reproductive subjects. The abortion seeker may be accessing abortion ‘early’ because the pregnancy poses a risk to her health, or because there is evidence of a foetal anomaly, or because she experiences the pregnancy as a crisis from which she needs immediate relief. But these concrete experiences do not need to be evidenced when abortion is made generally lawful, since a pregnant person does not have to provide her reasons. However, the legal recognition of these grounds of access (under Sections 9–11), subject to additional criteria, means that abortion is exceptionally lawful, as well as generally lawful in a time-limited way. If an abortion seeker misses the time-limit, she can only access a lawful abortion if she can show that she meets the legal criteria for exceptional treatment. Thinking about the legal boundary between general or ordinary legality and exceptional or extraordinary legality in terms of time, makes the standards of exceptional timeliness visible.
The adoption of a risk to health type criterion for abortion access, such as that in Section 9, sees reproductive time's role as progression and improvement through repair of the pregnant person (Macleod, 2019; Macleod et al., 2017). Reparative timeliness works with material time in recognising that living materials need time for repair after wear and tear. Abortion is recognised as being timely because reproduction of the reproducer herself is required. If a pregnancy is depleting a pregnant person to the point at which her health and life are being compromised, law will come to the rescue. The questions then become about what legal threshold of unhealthy time triggers repair enabling access, and what other legal criteria need to be met. There is now significant evidence that this pathway is being under-used in Ireland, and that people who could qualify for abortion on this ground are being denied (Chakravarty et al., 2023; Conlon et al., 2022; O'Shea, 2023). One of the key problems is that the law specifies that a risk of serious harm to health, or a risk to the life, of the pregnant person is required. In a climate where providers face criminal liability if they step outside the terms of the 2018 Act, there has been a failure to flesh out this reparative ‘risk to health’ pathway to abortion care as one which could facilitate access after the 12-week time limit.
Exceptional pathways which allow access to abortion on grounds of a foetal anomaly could be understood as allowing abortion when timeliness as speculation about reproductive futures is recognised as an expectation. Reproductive futures can be filled with hopes of many different kinds of time. The ending of pregnancy does not have to register as loss (Browne, 2022a), but it may do in terms which centre reproducers own investments in a reproductive future. Section 11 allows access to abortion when the foetus has a condition that means it is unlikely to survive birth. These legal terms look to reproductive futures (Baird, 2006; Kuberska et al., 2020; Meskus, 2023), but only allow reproducers to opt for an abortion in response when the future is hopeless. Only when reproductive dreams have been shattered by a prediction that the foetus-child will not survive, do a reproducers own speculations about investing in a future with children count.
The third exceptional pathway to abortion (under Section 10 of the 2018 Act) is the old familiar one which reproduces timeliness as crisis intervention. The necessity of an abortion in emergency circumstances has long been a timely standard that enabled ‘exceptional’ access to abortion when it was otherwise restricted (Gavigan, 1984). The crisis pathway is similar to the repair pathway in terms of its grounds for access, but different in terms of its procedural restrictions. Access is triggered by recognition of a risk of serious harm to a pregnant person's health or of a risk to their life, in other words as a need to repair the pregnant person. But the crisis pathway has no gestational time limit and no requirement of a second doctor's approval. In this way, the crisis pathway recognises that these restrictions operate as barriers to abortion and cannot be justified when a pregnant person is in immediate need of an abortion if she is to survive. The question then becomes what counts as crisis for law, and when will a person's own sense of reproductive crisis become sufficient to justify legal access in the least restrictive way possible.
Legal change in Ireland has reproduced a series of expectations for when abortion is timely as a matter of law with a view to foregrounding timeliness as earliness and stigmatising ‘later’ abortion. Failing some standard of timeliness becomes a way to find people at fault in some normative sense, and normative failings become justifications for denial, restriction or even punishment (Joshi, 2023; Phillips, 2022). But whether being later than expected is somehow unfair on others needs to be considered in the round. Being timely is not necessarily just a matter of being ‘on time’, but could depend on fit with the schedule, or rhythm, and avoiding a greater delay (Mills, 2014). This is why administrative procedures typically allow ‘interruptions’ of the clock when the timeline for delivering something by the deadline has to accommodate time spent doing something else that is socially necessary. Abortion law is reproducing concern over the appropriate use of precious time and making timeliness an important dimension for reproductive justice (Erdman, 2017; McCarthy, 2016; Ross and Solinger, 2017) in everyday life, in law and in institutional practice.
Pacing: Moving Reproducers Along with Deadlines, Waiting Periods and Certification
Theories of the high-speed society mistakenly assume that acceleration is occurring across all sectors of society and all dimensions of life (Wajcman, 2015: 34).
Abortion law also reveals the significance of pace as a concept for tracing timely SR, and of pacing as a technique that contributes to timely organization of reproduction for capital. By requiring that interventions into pregnancy are made by a particular time or take a particular amount of time, law demands that subjects speedup or slowdown in the exercise of reproductive freedom. Abortion law uses deadlines, waiting periods and professional certification requirements to accelerate and decelerate, fix and unfix, reproductive subjects. The pace produced by these techniques also intensifies or relaxes for differently situated reproductive subjects depending on the methods and places of provision. Subjecting an abortion-seeker to a timed deadline becomes a means of redeploying professional power and disciplining the abortion seeker, including by re-arranging the chilling effects of criminal law. In this way, we can see that abortion law is not only about ensuring the reproduction of the species and of labour power (O’Brien, 1981), but is also about distinguishing between different gestational workers with a view to valuing some gestational labour more than others (Chakravarty et al., 2023; Weinbaum, 2019). Those who can pace their abortion-seeking in relatively low-cost, early intervention ways are given more reproductive freedom, whereas those whose repair, speculation or crisis-management may move more slowly, are scrutinized and exceptionalised.
The future which periodic law anticipates (Adams et al., 2009) for abortion seekers is one where some will not meet the deadline. The presence of a time-limit in itself generates pressure, since pregnant people are likely to accelerate in order to meet the deadline, and avoid the more difficult and distressing reproductive routes if they can. But there are other features of time-limited abortion law that increase the time pressure and contribute to the acceleration-related anxiety we associate with the ‘high-speed society’, if unevenly (Wajcman, 2015). These include counting unconscious gestational time, bringing the deadline forward, requiring unnecessary professional approval time or waiting periods, and expecting virtual certainty of a diagnosis of fatal foetal anomaly when likelihood is all that is required. By counting gestation from last menstrual period (LMP) for the purposes of qualifying for an abortion, law shortens the qualifying time period because the clock is ticking before a pregnant person is or can know that she is pregnant. Consciousness of pregnancy is made irrelevant and unnecessary for the purposes of counting the pregnant time that qualifies for an abortion, as the qualifying time run simultaneously with menstrual time rather than with the time of pregnancy's awareness. This effectively takes 2 weeks of qualifying time away from a pregnant person before she even knows that she is pregnant, and before she even is pregnant.
Law generates pressure to accelerate and get an abortion speedily by telling people they have less time than they thought they had, given reliance on LMP as a retrospective starting point and inclusion of unconscious pregnant time. A woman can be pregnant retrospectively as a matter of law, before she has the heterosex or insemination needed to make her pregnant. For 2 weeks of the 12 weeks (or any other qualifying period of gestational time) she is not actually pregnant when pregnant time is running contemporaneously because she has not yet conceived. She becomes pregnant retrospectively as law looks backwards from the identification of a pregnancy to the first day of her last menstrual period as a starting point. And for 4–6 weeks she may not know that she is pregnant because she has not missed her menstrual period or acquired some other sign of pregnancy. In other instances failures to recognise pregnancy for a variety of reasons can also contribute to much of the pregnant time not being abortion-conscious time (McGuinness, 2024; Strong et al., 2023). If abortion law seeks to keep reproducers to time, it needs to recognise the time needed for becoming conscious and aware of being pregnant. Time limits have unfair accelerating and anxiety-generating effects when they include unconscious pregnant time in the time-limited period.
A second way that law produces pace through acceleration also arises through the material shortening of the qualifying time period as a result of the overlapping timeline of the practical method and place of delivery. Legal time runs simultaneously with the timeline for professional provision of abortion pills as the main method of delivering early abortion in practice. In practice, local access is heavily reliant on GP provided abortion pills, which is limited by national professional guidelines to the first 9 weeks (Health Service Executive, 2019). The World Health Organisation's guidance 5 affirms that abortion pills are safe to use in the first 12 weeks of pregnancy, but local Irish concerns about ready access to hospital support if needed, have contributed to national guidance adopting a 9-week limit (Duffy et al., 2023). After the 9-week point, abortion has to be accessed via a hospital whether with pills or as a surgical intervention. Since hospitals are less accessible, an abortion at 9–12 weeks becomes less accessible as a consequence, contributing to the pressure on abortion-seekers to get access in time. The Chief Medical Officer's interpretation of how to measure the endpoint of the 12-week deadline has also contributed to an intensified pace of abortion seeking (Duffy et al., 2023). The CMO's use of a mechanistic clock approach to material time (Institute of Obstetricians and Gynaecologists, Royal College of Physicians of Ireland, 2018: 30), by counting 12 weeks as 12 weeks +0 days rather than +6 days, shortens the deadline by counting less days as qualifying time.
Access is slowed down within the period of lawfulness as a mandatory waiting period is attached to the point when the decision is authorised, so as to separate out the moment of use from the moment of authorisation. Waiting is required in the name of reflection and respect for autonomy, but in a way which adds insult to injury by assuming reflection needs to be legally imposed. The fact that the waiting period overlaps with the 12 weeks means that it can become a block on meeting the deadline, and adds pressure to the deadline generating even more anxiety. Mandatory waiting periods slow the process down at a point when pregnant people are coming up against the deadline, are not clinically justified (de Londras et al., 2022b), and remind them that the pace of withdrawal is not under their own control (O'Shaughnessy, 2019). As a result, the possibility of being denied relief through missing the 12-week deadline generates a pressure to accelerate, but the 3-day waiting period warns abortion-seekers against being ‘too quick’. And on the other pathways, the need to qualify for exceptional access and to be certified as such, slows things down in a way that exacerbates vulnerability and reminds reproducers not to expect assistance.
The reparative, or risk to health, pathway slows an abortion seeker down and makes this legal pathway difficult to access in ways which reveal more about techniques of pacing reproductive time. This reparative pathway requires more professional certification time than is necessary and re-arranges the chilling effects of criminalisation so as to discourage providers from participation and leave abortion seekers on their own. This ground of risk to life or risk of serious harm to health for having a lawful abortion conjures up an atmospheric temporality of failed vulnerability by restricting support when it is most needed. As well as using the language of ‘serious harm’, this statutory section contributes to this legal atmosphere of worry over failed and failing vulnerability by requiring more professional oversight than is necessary in the shape of two doctors, one of whom must be an obstetrician.
Access, for those who qualify on grounds of having a pregnancy with a foetal anomaly, is slowed down by narrowing the terms for qualification and creating an atmosphere of fear, even though these pregnancies cost reproducers a lot in quantity and quality of time. Conditions ‘likely to lead to the death of the foetus within 28 days of birth’ (Austin et al., 2021; Browne, 2022b; Schlesselman-Tarango and Tarango, 2020; Turner et al., 2020) under Section 11 create a difficult distinction between fatal and non-fatal anomalies. The ‘likely’ failure of a pregnancy to progress towards a viable child becomes recognized as a foetocentric lawful ground for abortion. The statute uses the language of likelihood which could mean more likely than not, or on the balance of probabilities. But likelihood is being interpreted as having a certainty-like meaning as the chilling effect of the criminal law for providers means that a legal standard closer to a ‘beyond a reasonable doubt’ rather than ‘on the balance of probabilities’ is being adopted. While we know that this pathway is the second most frequently used pathway and that there clearly is a need, we also know that this pathway is failing those who are in significant distress about the development of their pregnancies in a direction that they find unsupportable.
The little-used pathway to emergency abortion under Section 10 of the 2018 Act shows us how the sense of abortion as a crisis needing immediate intervention is present in the law, but more backgrounded that it once was (Fletcher, 2013). Nonetheless, the effect of a sense of crisis is to push back some of the weighty restrictions that accompany the ordinary ‘risk to health/life’ pathway. The ‘emergency’ (Garland and Travis, 2020) pathway does this by pushing back the need for a second doctor, and the cut-off point of foetal viability. The
The real possibility of missing the deadline generates anxiety, including by denying repair to pregnant bodies, anticipating a hopeless reproductive future, or crisis in the reproductive present. Rather than rely primarily on criminal penalties to generate chilling effects and stigma, the legal criteria for access come together to form an administrative infrastructure that holds out the possibility of relief, and threatens to deny that relief, including by exacerbating vulnerability. Security in managing one's own reproduction (Erdman et al., 2018) is denied by legal invocation of the 12-week deadline, by making the alternative exceptional pathways difficult to access, and by further weighing down and truncating the relevant deadlines in operational practice. At the same time law has generated this administrative infrastructure for distributing or withholding relief. The chilling and stigmatising effects of criminalisation have not disappeared but have been re-arranged/re-directed away from pregnant people and towards those who assist them. While the chilling effects of criminalisation have been side-lined, the delaying and denying effects of public administration add more anxiety and vulnerability.
These different arrangements pace the possibility of accessing abortion and the administration of pregnant time as they generate feelings of relief, anxiety, vulnerability, hopelessness and urgency. This matters because it shows us how this abortion law regulates and disciplines less through criminalized stigma of and coercive harshness towards pregnant people, and more by accelerated pressure, anxiety, and vulnerability, including by using criminal law
Conclusion: Reproducing Timely Subjects
The arrival of conflict over time-limited abortion on the world stage in an age of time poverty is not an accident. It tells us something about abortion law as a site of the crisis in care and why abortion law is in such dynamic flux around the world as the regulation of social reproduction is pulled in different directions. The abortion time limit is vitally important because it materializes pregnant people as timely legal subjects, as those who may make themselves free of gestational labour
Abortion law calendars pregnancy into periods when abortion is generally lawful and when abortion is exceptionally lawful by using abstract time (calendar weeks in this instance) to generate a time limit as a legal means of distinguishing between the two periods. But such a calendar also needs concrete time to fix the time limit and mark its starting point and its endpoint. Legal calendars generated by time limits mix abstract and concrete time as they select in material moments for the purposes of plotting the calendar. Calendaring gestational time reproduces the pregnant person as one whose cyclical menstrual time is necessary for making gestational time run, and as one who may become free of gestational labour if she is timely in organising her abortion. Calendering pregnancy is a necessary legal process for facilitating a legal distinction between ‘early’ and ‘later’ abortion and for generating timely and untimely legal subjects.
While calendaring arranges already existing social time in ways which facilitate the generation of timely subjects, punctuation generates new, and adapted, legal expectations of timeliness. Punctuating pregnancy with a time limit has the effect of generating an expectation that pregnant people will be timely in their lawful withdrawal of gestational labour. Ordinary timeliness is understood as early in intervening into pregnancy and reducing the material costs of intervention, where later intervention would require more of the pregnant body, though still not as much as carrying a pregnancy to term and giving birth to a child. Extraordinary timeliness is understood as the kind of intervention into pregnancy which is justified because of a need for the pregnant person's repair, or for facilitating speculation about future reproduction, or for addressing an immediate crisis. In practice, all of these categories of extraordinary or exceptional timeliness are difficult to meet, in ways which show how little weight is put on reproducers’ own claims to repair, speculation or crisis. Periodic abortion law uses different expectations of timeliness in its punctuation of pregnant time and its demarcation of timeliness as earliness at the legal standard to be facilitated and supported, while timeliness as repair, speculation or crisis is stigmatised as lateness and used to discipline reproducers.
These new and adapted standards of punctuality have felt effects, felt effects which themselves become part of law's pace as abortion law uses deadlines, waiting periods and certification to move pregnant people along. The general lawfulness of time-limited abortion has produced an expectation that abortion-seekers will get relief. Routinising the relief, which had been provided by feminists working around and under the law (Duffy, 2024; Fletcher, 2016), and bringing it within law has produced a significant legal change. Pregnant and potentially pregnant people can pace their reproduction knowing that a free, safe and local abortion service has been secured, albeit one with painful limitations for too many. The real possibility that relief will be denied if you miss the deadline shows how anxiety-generating pressure is also at work in pacing the administration of reproductive labour time. The shorter timelines attached to the method and place of abortion's delivery run simultaneously with the timeline for abortion lawfulness. They have the effect of shortening the legal timeline in practice and further contributing to a perceived need for acceleration.
Abortion law teaches SR theory another way of counting time spent by unwaged reproductive biolabour. Legal calendars select material moments of concrete and abstract time for plotting out pregnant timelines and stretching the legal timeline of pregnant work from menstruation to neonatality. Legal punctuations characterise some timely abortions as meriting recognition and accommodation while others are relegated to exceptional access. Legal paces hurry time up, and slow it down, as deadlines, waiting periods and certification processes produce felt effects, including by generating anxiety over the possibility that relief will be denied. In this way, observing time-limits, and other time-reproducing features of abortion law, shows how the regulation of gestational labour is a key site of SR.
The adoption of a legal framework of reproductive timeliness could be a lived improvement on the legal framework of exceptional reproductive repair which characterized the pre-2018 legal order. That constitutional, criminal and administrative infrastructure only allowed women and pregnant people to withdraw from pregnancy if they were found to be on the brink of death as a matter of law. But the adoption and operation of a time-limited pathway to lawful abortion care raises new challenges and requires a rethink of abortion law as a means of regulating reproductive labour time. Tracing how abortion law has reproduced time provides a scholarly means of valuing the achievements of movements (Akbar et al., 2021; Enright et al., 2020; Spade, 2015) for reproductive justice as they make momentous legal change possible. But such analysis also enables critique, engagement and change on new legal terrain. Theorising in light of reproductive timeliness has the potential to develop new scholarly resources for criticising legal developments in SR, resources for tackling a ‘possibility for the process of re-composition’ of reproductive life (Federici, 2008). They could ‘make something happen’ (Collins et al., 2021) by contesting and contextualizing harsher versions of reproductive legal time, and by generating alternative calendars and clocks for holding law to account (Jacir, 2021). In the meantime, watching how time-limited abortion law actually reproduces time has generated the calendar, with its timelines, punctuations and paces, as a critical concept for theorising how reproductive time is itself reproduced. Patriarchal capitalism may need timely reproducers, but may yet be reproduced otherwise.
Footnotes
Acknowledgments
I would like to acknowledge all the colleagues whose thoughtfulness contributed to this paper and the larger project out of which it emerges, including Camillia Kong, David Whyte, Davina Cooper, Emily Grabham, Erica Millar, Eva Nanopolous, Giulia Zanini, Jane Krishnadas, Kate Malleson, Lizzie Barmes, Órla O’Donovan, Prabha Kotiswaran, Sally Sheldon, Sheelagh McGuinness, Tanzil Chowdhury, and the reviewers and editors at
Declaration of Conflicting Interests
The author declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author disclosed receipt of the following financial support for the research, authorship, and/or publication of this article. This work was supported by the Leverhulme Trust (Grant: RF 2022 545).
