Róisín McGrath

In 2018, Ireland voted by a majority of 66.4 per cent to repeal the Eighth Amendment (Art 40.3.3 Bunreacht na hÉireann), which legalised abortion up to 12 weeks — but six years later, many barriers and inequalities continue to exist under the Health (Regulation of Termination of Pregnancy) Act 2018.

These barriers prevent equal access to the abortion services which the constitutional amendment envisaged to provide, breaching the State’s obligations under the international human rights framework to provide accessible health facilities and services in law and in practice to all without discrimination, a risk which has been reiterated by Marie O’Shea’s 2023 independent report into the provision of abortion services in Ireland.

In the case of abortion, exacerbated barriers include wait periods, the continued criminalisation of providing an abortion in certain circumstances, and the uneven geographical distribution of services across the island.

The latter has ultimately led to a “postcode lottery” which determines whether pregnant people in Ireland will have access to abortion services based on where they live.

One barrier which the government has attempted to overcome is the presence of pro-life protests outside of abortion service facilities such as GP clinics and maternity hospitals.

This is in light of the significant number of protests which have taken place since the referendum in 2018, with research published by Maynooth University in 2023 finding that they had taken place outside the facilities of as many as 46.6 per cent of abortion providers.

In reaction to these protests, which are intended to influence the pregnant person’s decision to seek an abortion, restrictions banning pro-life protests within 100 meters of abortion service facilities were introduced this year under the Health (Termination of Pregnancy Services) (Safe Access Zones) Act 2024.

Such restrictions are a welcome development but much more is required to ensure that all those who have decided to seek an abortion have equal access to do so without fear of intimidation.

In order to effectively ensure equality of access, all proposed solutions must be formulated with the view of achieving substantive equality. This requires states to acknowledge that people experience inequality differently both as individuals and as part of the groups to which they belong, not because of these characteristics but because of the disadvantage attached to such a characteristic.

Violations of sexual and reproductive rights, which are specifically included in the Committee on the Elimination of Discrimination Against Women (CEDAW) Convention, disproportionately affect women, people of minority genders, migrants, disabled people, homeless people, black people, and people of colour.

Those most affected often belong to more than one of these groups and so, as noted by Kimberlé Crenshaw in coining the term intersectionality, “if you are standing in the path of multiple forms of exclusion, you’re likely to get hit by both”.

One group particularly discriminated against is pregnant migrants and refugees who live in direct provision and do not have a PPS number as, under the Act, only those living in Ireland with a PPS number have access to free abortion services.

This group, along with disabled people and all others who are reliant on public transport, are similarly disadvantaged by the uneven geographical distribution of abortion services in Ireland.

O’Shea’s report highlights that in many rural areas especially in the southeast, northwest, midlands and border counties where there are few or no providing consultants and GPs, abortion services are “untenable”.

Uneven geographic distribution of services coupled with poor public transport infrastructure significantly limits these groups’ access to abortion services, a limitation which recent legislative developments have done little to reduce.

Substantive equality also empowers women to make choices regarding their reproductive health and bodies. The Act, however, includes a mandatory wait period for pregnant people (who are up to 12 weeks pregnant) requiring them to wait three days between consulting their doctor and receiving an abortion.

The National Women’s Council of Ireland (NWCI) has described this wait period as “patronising and demeaning to women as competent decision makers”, a sentiment echoed by O’Shea’s report, which recommends that the wait period be made optional.

Furthermore, third-party authorisation requirements take the reproductive health decisions of pregnant people away from them, undermining their autonomy. Where pregnant people are reliant on third-party authorisation, they are vulnerable to having their decision undermined by healthcare workers who abuse the right to conscientiously object.

As highlighted by O’Shea, healthcare workers who provide misleading information to actively obstruct or delay the person’s access to abortion can do so without impunity. Appropriate legislation must therefore be introduced to deter the abuse of this right in a manner which purposefully prevents access to abortion services.

Due to the very recent legalisation of abortion in Ireland, the State must take affirmative action to address the historical and systemic discrimination faced by marginalised groups in the context of reproductive health such as women, people of minority genders, migrants, disabled people, homeless people, black people, and people of colour.

Such positive actions could include the removal of the PPS number requirement, eliminating the mandatory wait period and increasing the number of providing consultants and GPs nationwide ensuring equal access to abortion for all, without discrimination.

These steps are imperative should the government wish to avoid the potential challenges of international human rights law cases which, as currently stands, it has opened itself up to.

• Róisín McGrath is a recent graduate of University of Galway School of Law and editor of the University of Galway Law Review.