Repeal of the Eighth Amendment: Information for the public

Women's health

Further information on issues relating to the repeal of the Eighth Amendment

The Institute of Obstetricians and Gynaecologists has received a significant number of enquiries regarding the planned referendum on the repeal of the Eighth Amendment from members of the public, medical practitioners, legislators and journalists.

The Institute wishes to provide further information on the questions that have most frequently been addressed to us in recent weeks.

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In November 1982 the government proposed a Bill for the Eighth Amendment to the Constitution, adding a new article 40.3.3 which stated that:
‘The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and as far as practicable, by its laws to defend and vindicate that right.’
A referendum was held in September 1983 with a vote of 67% in favour of inserting the Eighth Amendment into the Constitution and 33% against.
Over the next few years, the Supreme Court held in a number of cases that this provision of the Constitution prohibited information within the state on the availability of abortion services outside of the state. These rulings were overturned by the Thirteenth Amendment and Fourteenth Amendment in 1992, which legislated for the right to travel abroad for an abortion, and to receive information in Ireland about abortion services abroad.

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Further legislation was introduced in 2013 with the Protection of Life in Pregnancy Act which replaced the 1861 Offences Against the Person Act. This Act gives effect in statutory law to the 1992 Supreme Court ruling in Attorney General v. X that abortion is permitted where pregnancy presents ‘a real and substantial risk to the life, as distinct from the health, of the mother,’ including where the risk is through suicide.

The Protection of Life in Pregnancy Act permits abortion in circumstances where two doctors consider that a woman is at risk of dying unless her pregnancy is terminated. If she is at immediate risk of dying, the law permits that one doctor can make the decision to terminate the pregnancy. Outside these circumstances, the Act states that any termination is a crime that carries a prison sentence of up to 14 years for the guilty parties, who include the woman and her doctor.

Notwithstanding the provisions of the Protection of Life in Pregnancy Act, the existence of the Eighth Amendment poses major challenges for doctors when caring for pregnant women. Doctors have to decide how close to death a woman is in order to proceed with termination of pregnancy. The woman has no input into this decision other than to give her consent.

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The 2013 Protection of Life in Pregnancy Act will remain in force unless or until it is replaced by new legislation passed by the Houses of the Oireachtas. There will thus be no legal vacuum.

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12 weeks is one of three major milestones in pregnancy. The period up to 12 weeks is termed early pregnancy. The other major milestones are viability – or the possibility of survival outside the womb – at approximately 23 to 24 weeks, and term at 37 to 42 weeks when fetal development has been completed.

12 weeks is a milestone because most miscarriages occur in the first 12 weeks (which is in fact usually 10 weeks after conception since pregnancy is dated from the first day of the last menstrual period (LMP) and conception usually occurs 2 weeks after this date). Up to 50% of pregnancies miscarry in the first four weeks, typically before a woman is aware that she has conceived. Of the 50% that progress beyond 4 weeks, there is a significant further rate of miscarriage heavily influenced by the age of the woman. A 30 year-old has approximately a 10% chance of miscarriage, whereas at the age of 40, the rate is at least 35% and increases steeply thereafter each year to 75% from the age of 45.

In recommending a 12-week limit, the committee was particularly concerned about cases of rape. Its report specifically referenced the lack of a diagnostic test for rape, the difficulty presented in the verification of rape, the need to avoid further traumatisation of a victim of rape if some form of verification was required, and the likelihood that a verification process would be complex or even unworkable in practice.

The committee also expressed its concerns about the increasing use of abortion pills by women in Ireland which are purchased illegally over the internet, therefore with no certainty as to their origin and quality. Licensed pills are safe and effective when taken under medical supervision. They are now commonly used in medical termination up to 12 weeks of pregnancy in countries where termination of pregnancy is legal. However, when taken without medical supervision, there are significant risks. Women may take the wrong dose and may be afraid to seek medical assistance if complications arise.

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The ‘abortion pill’ is used for the medical termination of pregnancy in early pregnancy through the use of two medications, mifepristone followed by misoprostol.

Mifepristone blocks the production of progesterone, the hormone that supports the pregnancy before the placenta is developed. Misoprostol causes the uterus to contract and expel the pregnancy.

Different doses are prescribed depending on the gestation of pregnancy. Medical termination can be completed in a community and home setting before 12 weeks, with only occasional requirement for hospital facilities.

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In countries where medical termination of pregnancy is practiced, the woman attends a medical practitioner for a first appointment either in her GP’s surgery or in a woman’s health clinic.

A medical history is taken to confirm gestation, to ensure that her decision has not been made under duress and that she has no complicating medical condition. The process of the termination is described. Counselling includes discussion of the range of emotions commonly experienced after a termination.

A blood test is obtained to determine her blood group and to check for anaemia.

Routine ultrasound scanning is considered unnecessary in the first trimester in international guidelines unless there are concerns about complications such as ectopic pregnancy (a pregnancy outside the womb) if the woman reports bleeding or pain, or if there is concern about the accuracy of dates, for example where a woman has irregular or no recent periods.

It is best practice to undertake a risk assessment for sexually transmitted infection for all women, and then to screen for them if appropriate.

Effective methods of contraception should be discussed at the initial assessment and a plan agreed, and documented, for contraception after the termination.

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Mifepristone is prescribed by the medical practitioner and is usually taken at the clinic or GP practice.

Before 49 days (7 weeks) of pregnancy, 200 milligrams (mg) mifepristone is taken orally (i.e. swallowed immediately) followed 24 to 48 hours later by 400 micrograms (mcg) of misoprostol also taken orally. Increasingly, common practice is that misoprostol is taken by the woman herself at home.

Before 63 days (9 weeks), 200 mg of mifepristone is taken orally followed 24 to 48 hours later by 800 mcg of misoprostol also taken orally including by dissolution in the cheek or under the tongue. If termination has not occurred 4 hours after the misoprostol has been taken, a second dose of 400 mcg of misoprostol may be administered orally or vaginally.

After 63 days (9 weeks) and before 84 days (12 weeks) 200 mg of mifepristone is taken orally followed 36 to 48 hours later by 800 mcg of misoprostol administered vaginally. A maximum of four further doses of 400 mcg of misoprostol may be taken at 3-hourly intervals, vaginally or orally, until the termination is completed. 

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Medical termination is successful in 98-99% of cases. Termination is usually completed within four to six hours of taking the misoprostol though it can take up to a few days. Most women do not have bleeding or pain until they take the misoprostol. It can be painful, a bit like a heavy period, and painkillers are advised. Bleeding and spotting may continue for some days up to four weeks after termination, although 85% of women will have completed the termination within eight days.

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The Committee noted that ‘it could not ignore the extent to which Ireland has an underlying rate of terminations, the majority of which are carried out either in medical clinics in the UK, or in Ireland through unsupervised use of abortion pills, procured through the internet.’ All indications are that there is increasing use of this medication by women in Ireland.

Doctors have concerns about the growing use of unregulated and unlicensed medication, particularly where women may feel afraid to seek medical help if it is necessary, because of fear of prosecution and criminal sanctions

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As medical termination is experienced like an early miscarriage, bleeding and cramping is normal. Temporary side-effects due to medication can include dizziness, nausea, vomiting, diarrhoea, or temporary flushes and sweats. There are no long term complications.

The risk of death is rare although individual cases have been reported. The rate is estimated to be 2 in 100,000 or 0.002%. The main cause of death is infection.

The risk of infection is estimated to be 2 in 1,000 or 0.2%. While this risk is very low, it is very important that women feel able to seek immediate medical help without fear of prosecution in the rare cases of complications.

The risk of haemorrhage is estimated to be 1 in 1000 or 0.1%.

The risk of undiagnosed ectopic pregnancy is estimated to be 1 in 7,000 or 0.014%. The US Food and Drug Administration (FDA) records one case of death from a ruptured ectopic pregnancy in the USA between licensing in 2000 and revised labelling in March 2016.

The risk of incomplete treatment – where some tissue is left behind in the womb – is 3 in 100 or 3%. The majority of these cases do not require surgical intervention and will settle with conservative management, possibly including antibiotics.

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There is no medical need for a routine follow-up visit following uncomplicated termination, although in some countries, for example Germany, a follow-up visit is required two or three weeks after the termination.

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We can look at neighbouring countries with similar size of population as Ireland for examples.

In Scotland (population 5.4 million), data for 2016 shows most terminations (around 95%) took place before 13 weeks and that 73.5% of all terminations took place before 9 weeks. The majority of terminations before 10 weeks (89.4%) were medical. Women can access medical terminations in hospital or sexual and reproductive health clinics. A GP can make a referral or a woman can self-refer to a women’s health clinic.

For early medical termination in Scotland one or two appointments are usual after referral. There is an initial assessment appointment during which the woman is usually given a blood test to check her blood group and to see if she is anaemic; a routine test for sexually transmitted infections (STIs); and information and advice about methods of contraception that could be used after the termination. Finally, before starting treatment, the woman will be given a consent form to sign. In some instances, the first medication will be given at the assessment appointment. Since October 2017, women in Scotland have been able to choose to take the second medicine, misoprostol, at home to complete the termination.

In Norway (population 5.2 million), medical termination of pregnancy with mifepristone and misoprostol is available up to 12 weeks in the public hospital system. Since this method was introduced in 1998, there has been an almost complete change from predominantly surgical to medical termination. Women are also accessing termination at an earlier gestational age. In 2013, 82% of all terminations were medical compared with 6% in 1998 and since 2009 women have been able to take misoprostol at home. This has been associated with a further increase in medical versus surgical termination. No terminations in Norway are performed outside the public health system and 95% take place before 12 weeks.

The population of The Netherlands is larger at 17 million, but we include it as Irish women currently access abortion care there. Women can access medical terminations in 17 licensed clinics (90% of terminations) and around 100 licensed hospitals (10%). A GP can make a referral or a woman can self-refer. There is a 5-day waiting period between the first appointment with the doctor (who may be the GP she initially went to for referral) and the termination. When menstruation is between 12 and 16 days overdue, termination may be accessed without the 5-day waiting period.

Before 7 weeks, mifepristone and misoprostol can be prescribed by a GP, provided the practice is registered and fulfils the requirement of the Termination of Pregnancy Act (1984). After 7 weeks, terminations are performed in clinics or hospitals.

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Termination after 12 weeks of pregnancy will only be permitted when there is a threat to the life or threat of serious harm to the health of the mother, and in cases of fatal fetal abnormalities.

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A normal pregnancy lasts between 37 and 42 weeks. A baby born before 37 weeks is premature while extreme prematurity is when a baby is born before 28 weeks. Viability – the ability to survive outside the womb - depends on both biological and technological factors, i.e. the weight of the baby at birth and/or the level of neonatal intensive care facilities available, which are different in different parts of the world. Thus, there is no uniform, worldwide gestational age that defines viability.

In Ireland, which has world-class neonatal intensive care facilities, viability is currently considered to occur at approximately 23 to 24 weeks of pregnancy. Some babies born at 23 weeks may survive while many born after 24 weeks may not. In Ireland around 70% of babies born at 23 weeks and 50% born at 24 weeks will not survive. Among survivors the rate of disability is high, with lifelong complications such as cerebral palsy, blindness and/or deafness.

In relation to the question of viability, the Committee drew a distinction between termination of pregnancy because of risk to the life or health of the mother and termination because of fetal anomaly that is likely to result in death of the baby before or shortly after birth.

In the case of a pregnancy that is ended because of a risk to the mother’s life or health after viability is reached, best practice is that the delivery be attended by neonatal doctors, and full neonatal intensive care be offered if appropriate.

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No. Disability as a ground for termination of pregnancy is specifically excluded from proposed legislation.