[Alamy stock photo via TheJournal.ie]

Holly Cairns’ bill to liberalise Ireland’s abortion laws in various ways is being debated at second stage today in the Dáil. It’s extremely similar to a previous bill sponsored by Paul Murphy, which we wrote an explainer on.

Today though I want to focus a bit more closely on the three-day waiting period, because there are a lot of things about the way it’s discussed that don’t make sense, and I think that lack of making sense deserves closer examination. If today’s bill is defeated, Sinn Féin’s David Cullinane is bringing forward another bill which only eliminates the three-day wait.

Deputy Cairns set out some of the arguments for her bill in a piece in the Irish Independent, and I’ll use that as a jumping off point for engaging criticism of the three-day wait. I really appreciate Cairns for actually making the case for her bill by advancing arguments for it: so much of the abortion debate in Ireland now just consists of little more than repetitive slogans.

Here’s Cairns on the three-day waiting period, but the bold emphasis is mine:

[The three-day waiting period was] described as “a barrier to access” by a representative group of 300 abortion providers. The three-day wait period is not based on evidence or science and, in fact, the World Health Organisation recommends against it.

[Sunday Independent columnist Brenda] Power credits this provision with “saving the lives of up to 2,000 babies a year”, but there is no evidence for that. While figures suggest 2,036 women did not return for a second appointment in 2023, we do not know why.

Many of those women could have had a miscarriage, been referred to hospital, or even opted to buy abortion pills online.

A minority of women will of course change their mind, but an initial discussion with their GP could have informed that anyway.

In my view, the mandatory wait period is not just bad science, it is patronising and paternalistic — based on a mistrust of women and a false presumption we do not think about important decisions. However, my legislation does not remove the three-day wait period entirely, it makes it optional, so women retain autonomy over the process.

So what are the problems?

1. The three-day waiting period can act as a barrier to access, or it can fail to prevent any abortions. But it can’t do both.

Deputy Cairns, like a lot of pro-choice activists, makes two major criticisms of the three-day waiting period. One is that it’s an unacceptable barrier to women’s right to access abortion. The other is that it doesn’t prevent any abortions anyway. There is a problem here! If the three-day wait isn’t actually preventing any abortions, then it’s not a meaningful barrier to access. Sure, it might be “patronising and paternalistic”, upsetting, frustrating, or annoying. But it’s not functioning as a barrier if it doesn’t do any barring.

If, on the other hand, the three-day wait is acting as a barrier to women accessing abortion, that means it’s reducing the number of abortions. In other words, it is saving babies’ lives. There’s no having this both ways. People like Deputy Cairns or any of the TDs who want to get rid of the three-day wait need to be clear about which side of this argument they actually support. Is the waiting period a pointless bit of patronisation or an unacceptable limitation on women’s freedom of choice?

2. An optional waiting period, also known as no waiting period

I don’t understand what an optional three day waiting period is. I suspect it’s not anything. Checking the proposed legislation itself doesn’t make things much clearer. This is the existing language of the 2018 Act governing abortion in Ireland relating to the three-day waiting period.

3) The termination of pregnancy shall not be carried out by a medical practitioner unless a period of not less than 3 days has elapsed from— 


(a) the date of certification under subsection (2) by that medical practitioner, or

(b) where a certification was previously made in respect of the pregnancy by another medical practitioner for the purposes of subsection (2), the date of that previous certification. 


(4) A termination of pregnancy to which the certification referred to in subsection (2) relates shall be carried out as soon as may be after the period referred to in subsection (3) (a) or (b), as the case may be, has elapsed but before the pregnancy has exceeded 12 weeks of pregnancy.

The new bill replaces all this with:

Medical practitioners are obliged to inform the pregnant woman that she has a statutory right to a reflection period, which she may exercise, at her own discretion.

This is confusing and frankly a bit absurd. I’m not aware of any service provided by a medic where one does not have a “statutory right to a reflection period”. Maybe emergency surgery if you’re unconscious? A reminder that “you can wait if you like” is not in any sense a “reflection period”. Imagine if the three-month waiting period after notifying the state that you want to get married was “optional.” Speaking of which…

3. If waiting periods are unacceptable violations of autonomy, the state’s marriage laws are a travesty

The three-day waiting period is there to address one specific kind of case: the case of a woman who is making a decision to abort that, if she had to take a bit more time to think about it, would make a different decision. This could be someone who is panicking, someone who is still processing, someone who is not yet sure of how much support they will get from the people around them. It is not in general a hallmark of major life decisions that taking an additional 72 hours makes them worse. 


Cairns writes that all this is “based on a mistrust of women and a false presumption we do not think about important decisions”. It just isn’t. For every type of major life decision, some people will take it after careful consideration, and some people will take it impulsively, and some people will take it in a way somewhere in between those two. Marrying someone, moving to another country, having a child, making a career change: all of these have life-altering consequences. And all of them are decisions that are very often taken in a panic, or under pressure from others, or otherwise in a state in which having to take a bit more time would have helped. It would be strange if having an abortion was the only exception.

The state responds to these situations in a variety of different ways. As mentioned, to get married in this country you need to book a marriage notification appointment with your local civil registration service. That appointment needs to be at least three months before your wedding, and barring emergency waivers you are quite unable to get married before the three months are up. There are also various safeguards in place designed to prevent marriages of convenience, sham marriages and the like. Nobody thinks this is some kind of unacceptable restriction of the autonomy of people getting married. We recognise that marriage is a weighty thing and the state is right to make sure the decision to enter it isn’t being made lightly.

The same goes for the decision to have an abortion, even under the current constitutional position. Abortion, unlike marriage, is a matter of life and death. The Oireachtas can no longer take the position that the unborn are our equals, but it can and does accord some moral weight to fetal life. It does this, for example, by making abortion on request illegal after 12 weeks, and making it available after that point only on specific grounds. This is the obvious main reason for any restriction on abortion in Irish law, or anywhere. Most pro-choice people think the life of the fetus matters to some degree, and so most jurisdictions have some restrictions on abortion. 

The thing about the three-day waiting period is that it’s one of the most autonomy-preserving ways of doing a restriction. The women who change their minds are making an autonomous decision too, just one made after 72 hours of reflection after their initial consultation with the medic, a consultation where they may have received new information that could influence their decision. You could make an argument that the three-day waiting period is autonomy-enhancing. I don’t know if I’d go that far, but if you assume the state has any interest whatsoever in protecting fetal life, the three-day waiting period is one of the ways of doing it that restricts autonomy least.

4. It’s not plausible that the three-day wait doesn’t reduce abortion

Deputy Cairns notes that “figures suggest 2,036 women did not return for a second appointment in 2023”. I appreciate Deputy Cairns recognising the existence of these women. This is more than Marie O’Shea did in the report on which Cairns’ bill is based. For some reason, O’Shea ignored the HSE’s own data (which showed that over 2019, 2020, and 2021, there were 3,951 first appointments period that had no follow-up appointment) and instead opted to base her estimates on the effectiveness of the three-day waiting period on a survey from the journal Contraception, which looked at a nationally unrepresentative sample of abortion providers over just the first six months of 2019 and found a miniscule rate of women who attended a first consultation but did not present for subsequent consultations. To be clear, this is not a criticism of the study: it never claimed to be nationally representative and wasn’t even primarily looking into the effectiveness of the three-day waiting period. It’s just very strange that someone of O’Shea’s stature would use the study as she did instead of going directly to the numbers themselves. It would be like using an opinion poll with a high margin of error to get an estimate of the average age of the population in a year in which a full census was conducted.

Deputy Cairns is using the real numbers and for that deserves credit. Her move is to cast doubt on the real causes of the apparent change of mind. Again, she writes:

Many of those women could have had a miscarriage, been referred to hospital, or even opted to buy abortion pills online.

A minority of women will of course change their mind, but an initial discussion with their GP could have informed that anyway.

So we have four possible reasons for the 2036 women who went for their first appointment but not their second.

Two of these four are not going to be significant contributors. Is it likely that anywhere near 2000, or 1000, or 500, or 100 women a year will have a miscarriage in precisely the three days between their first and second abortion appointment? Is it likely that any substantial number of those 2036 women decided to purchase abortion pills online after their first appointment, trusting in An Post to get them there before the three days are up? It is not. 

That leaves hospital referrals, and women who would have changed their mind anyway after their first consultation, even without the three-day wait. The first thing I’d say about this is that if we wanted to, we could just find out for sure. This isn’t some impenetrable black box of knowledge. The Oireachtas could legislate to have the HSE collect more comprehensive data. Providers could simply be required to note whether or not they referred patients to hospital for an abortion.

Ireland is notoriously bad at collecting abortion data. We don’t collect data on age, employment, education level, obstetric and gynaecological history, urban or rural dwelling, current or historical contraceptive use. This kind of comprehensive data collection is standard in places like Britain, Sweden, and New Zealand, it’s recommended by the World Health Organisation and the (very pro-choice) Irish Human Rights Council, it’s done in a way that completely anonymises individuals, and it remains baffling that the Irish State doesn’t do it. Everyone, pro-life and pro-choice, should be able to get behind this. Before getting rid of the three-day waiting period, wouldn’t it actually make sense to do our due diligence and actually measure what we can about how it’s working? 

But even using the data we have we can say some things. The HSE confirmed in the answer to a parliamentary question by Carol Nolan TD that there were 12,099 ‘first consultations’ for abortion with GPs in 2023. There were 10,033 abortions in total. This makes, by my calculation, for a total gap of 2,066 (which is a tiny bit larger than the 2,036 figure that Deputy Cairns cites. This is for complicated reason which I’ll explain at the end of the blog: it doesn’t change anything about what I’m going to say next**). Let’s go with her figure of 2036. That’s the lowest possible number for ‘number of women who went to a first consultation but didn’t have a legal abortion in Ireland’. (That number could be higher for another slightly complicated reason***). There’s no way to explain away this gap by saying some of the women who didn’t go to their second GP appointment went to hospital instead. If they did, that would have shown up in the final figures as an abortion. You can’t make the final figure add up to more than 10,033. And that means that you cannot make the gap between the number of first GP appointments and the number of abortions any smaller than 2036 by appealing to hospital referrals.

What about women who would have changed their minds after the first consultation anyway, with or without the three-day period? Again, we could get data that would help with this. How many people decide not to proceed on the day of the first consultation, versus how many leave their GP without indicating that they’ve decided? 

What we do know is that under the current law at least 2036 women in 2023 didn’t get an abortion after going to their first appointment. Is it likely that the three-day wait had no impact? This comes back to my first problem, the whole “unacceptable barrier to access that isn’t actually preventing any abortions” thing. If the three-day waiting period did nothing to discourage abortion over and above what the initial consultation did, the most obvious reason for that would be that every woman who decided to go to her first abortion appointment had already firmly made up her mind. But if that was the case, then the consultation itself shouldn’t change her mind either. If, on the other hand, women going to their first appointment are open to changing their minds (as they’d have to be for Deputy Cairns’ hypothesis to be right), then why wouldn’t a three-day delay also have an impact on some of those women? Given that hospital referrals make no difference to the gap, and that miscarriages and abortion pills make a negligible difference, Deputy Cairns would have to stake her whole claim on this, and hold that almost all of the 2036 women would have been just undecided enough to change their minds after a first consultation, but just certain enough to remain completely unmoved by the three-day wait. This is what we call a punt. It might be true. But there’s no good reason to think it is.

What is likely is that things are more or less as they seem. The three-day waiting period is in fact reducing the number of abortions by, give or take, two thousand a year. In exchange it’s imposing a vastly smaller burden on women’s autonomy than does the wait for a marriage certificate. Getting rid of it now would be both wrong and foolish.

Ben

Additional statistics

**  I think Deputy Cairns made a very understandable mistake, here comparing the number of first appointments not with the total number of abortions (10,033) or the number of abortions that happen at a second appointment with a GP (we don’t have this figure for 2023), but with a number the HSE calls “Combined termination procedure and aftercare”.  (10,066) There is a third, followup appointment that women are entitled to after a termination, and for some reason the HSE grouped the second appointments (where the abortions actually happen) with these third appointments in their answer to Deputy Carol Nolan, which means we don’t actually know how many of each there really were. This number can’t be just the number of second appointments, because it is larger than the total number of abortions. That would mean that there were more abortions carried out by GPs in Ireland than there were abortions carried out by GPs and hospitals combined. This is, of course, impossible. I don’t blame Deputy Cairns for getting confused. I think Brenda Power made the same mistake when using the 2024 figures to defend the three-day wait. The way the HSE present their stats is a nightmare and it’s certainly possible I’ve got something wrong too. We need comprehensive data now.

*** Some women – for example in cases of medical emergency, or children with terminal illnesses – had an abortion without ever having a first consultation with a GP. This would mean that some of the final abortion figure consists of people who never interacted with the GP consultation system. But because we know the final abortion figure was 10,033, then every abortion that happened this way ‘replaces’ an abortion that was referred by a GP. So the more abortions are performed on women who never interacted with a GP, the fewer abortions there are performed on women who went to their first consultation. Since we also know the number of women who went to a first consultation (12,066) that means that it’s possible that even more women than 2036 went to their first consultation and then decided not to have an abortion. The key thing is that 2036 is the absolute lower bound.