(Image by Jakub Kopczyński from Pixabay)

One of the features of the Irish abortion legislation that has been getting a lot of attention lately is the three day waiting period. Under Irish law, an abortion that is carried out under Section 12 of the Act, which covers abortions that take place before 12 weeks, requires a three day wait between the request for the abortion and the performance of the abortion. This three day waiting period was inserted into the legislation at the suggestion of Simon Coveney, who claimed that the three day waiting period would, along with other safeguards, ensure that anyone getting an abortion in Ireland would have been highly likely to have an abortion anyway, either in Ireland with abortion pills or in Great Britain.

What is the impact of the three day waiting period on abortion? In short, no one knows for sure, partly because Ireland does not collect any epidemiological data on abortion provision (despite broad agreement that this would be a good thing to do), and partly because we have no control group: we can’t compare abortion in Ireland to abortion in an alternative Ireland without a three day waiting period. However, we can get an idea of the impact of the three day waiting period by considering the number of first appointments made with abortion providers, and compare them to subsequent appointments. 

The HSE pays abortion providers on an appointment basis, and so these data are available. The data are not published by the HSE as a matter of course (yet again: please give us data!!!), but were released in response to parliamentary questions. These official figures show that the number of first appointments were 11.5%, 18.4% and 19.3% higher than the number of subsequent appointments in 2019, 2020 and 2021, respectively. In total, the HSE recorded 3,951 first appointments over the three-year period that had no follow-up appointments. Because these figures correspond to the total abortions performed in the whole country, they are nationally representative, covering all abortion providers and all abortion appointments funded by the HSE.

On the face of it, it would appear therefore that a sizeable proportion of women who attend a first appointment do not subsequently have an abortion. However, we should note that not all of these appointments necessarily correspond to a woman changing her mind during the course of the three day wait. Some women will have miscarried, while others may have made an appointment with another doctor. Nonetheless, it is not possible to explain such a large discrepancy without concluding that a substantial number of women changed their minds during the course of the three-day wait. Thus, it appears that the three day waiting period has saved hundreds of lives at least – and potentially saved the same number of women from a decision they would subsequently regret.

The independent review of the State’s abortion regime to date, carried out by barrister Marie O’Shea, considered the impact, or lack thereof, of the three day waiting period. However, the review does not cite the nationally representative figures available from the HSE in drawing conclusions on the effectiveness of the waiting period in achieving its stated aim of allowing a period of reflection for women in advance of an abortion. Instead, the review cites a 2019 study published in the academic journal Contraception, which gathered data from four hundred and twenty abortions performed by twenty-seven GPs in Ireland over the first six months of 2019 (for context: at present, over 400 GPs in Ireland provide Termination of Pregnancy). The study’s primary purpose was to examine contraception usage before and after Termination of Pregnancy. The study was not nationally representative, nor did it claim to be, and found that the share of women who attended a first consultation but did not present for subsequent consultations was around 2 per cent. Ms O’Shea cites this figure as evidence that the three-day wait is ineffective at its stated purpose of giving women time to reflect on their decision, and contributes to her characterisation of the waiting period as an unnecessary burden that should be removed. 

Why on earth the review cites one small, unrepresentative study, performed over the course of less than one year, instead of the nationally-representative figures that were readily available from the HSE, is anyone’s guess. However two things should be clear to any objective observer: (1) the real impact of the three day waiting period is much larger than that implied by the study cited by O’Shea’s review, and (2) the failure to examine and include the HSE’s own data is an unacceptable omission, and the citation of a completely different dataset instead is misleading at best. It is dreadful practice to use data from a non-representative sample when population-level data are available, and should not be tolerated. If nothing else, the Department of Health has paid good money for this review, and should insist on the quality of the review being beyond reproach. It’s one thing to produce an obviously biased and skewed report, but quite another to cherry pick the data you report on. Serious questions should be asked about how such an obvious flaw wound up in the final report, and at a minimum, the report’s findings on the effectiveness of the waiting period should be discounted.

Ben and Muireann