Will abortion be available on ‘mental health’ grounds post-repeal?

The government proposes that after 12 weeks abortion will only be available on mental health grounds where there is a risk of serious harm to mental health. Once the foetus has reached viability, lawful abortion will not be available on health grounds.


The Government’s proposed law would allow for abortion on request up to 12 weeks (see explanation here). In some cases women will access abortion in early pregnancy in order to preserve their mental health; however, they will not be required to disclose that to their doctors.

After 12 weeks

After 12 weeks, lawful abortion will only be available in limited circumstances (see explanation here). These include where there is a risk of serious harm to the health of the pregnant woman, including her mental health. Some people say that this is the same ‘mental health ground’ that applies under the Abortion Act 1967 in England, Scotland and Wales. It is not.

This is the proposed Irish health ground:

4. (1) It shall be lawful to carry out a termination of pregnancy ….where 2 medical practitioners certify that, in their reasonable opinion formed in good faith –

(a) there is a risk to the life of, or of serious harm to the health of, the pregnant woman,

(b) the foetus has not reached viability, and

(c) it is appropriate to carry out the termination of pregnancy in order to avert that risk.

These are the grounds in the Abortion Act 1967 that refer to health:

(1)Subject to the provisions of this section, a person shall not be guilty of an offence under the law relating to abortion when a pregnancy is terminated by a registered medical practitioner if two registered medical practitioners are of the opinion, formed in good faith—

(a)that the pregnancy has not exceeded its twenty-fourth week and that the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman or any existing children of her family; or

(b)that the termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman;

In fact the Irish law will be far more restrictive than the Abortion Act 1967.

The standard applied

In Ireland, abortion would only be available on grounds of risk of ‘serious harm’ to mental health.  In England, Scotland and Wales, provided the pregnancy has not exceeded 24 weeks, an abortion is available if the risk to the woman’s mental health of continuing the pregnancy is greater than if the pregnancy were terminated. Unlike in the Irish proposals, there is no requirement to show that the risk is ‘serious’. This is a lower standard than that proposed for Ireland.

Time limits

In Ireland, abortion would only be available on grounds of risk of serious harm to mental health between 12 weeks and viability. After viability, the pregnancy would be ended by early delivery, whether induced or by C-section. By contrast, in the England, Scotland and Wales, after viability, abortion is available without an upper time limit, provided that the risk to the woman’s mental health is ‘grave and permanent’.

Whose health?

Under the Abortion Act 1967, doctors can take risks to the health of “any existing children of [the woman’s] family” in deciding whether to carry out a termination. Under the Irish proposals, only the woman’s own health can be taken into account.

Therefore, the proposed law in Ireland allowing for abortion on ‘mental health grounds’ is significantly more restricted than is the case in England and Wales.

Risk to health incl. mental health

Standard Time limit Requirements Comments
Ireland (proposed law) Not specified 12 weeks 3 day waiting period

 

1 doctor certifies

Available as part of the ‘protected period’ of 12 week abortion on request
UK Continuing with pregnancy would pose a greater risk to woman’s mental health than termination of pregnancy would 24 weeks 2 doctors certify to risk

Serious risk to health incl. mental health

Standard Time limit Requirements Comments
Ireland (proposed law) “there is a risk to the life of, or of serious harm to the health of, the pregnant woman”

 

Viability 2 doctors certify (a) risk, (b) foetus is not viable, (c) abortion is appropriate to avert the risk After 12 weeks abortion is not lawfully available where there is a ‘non-serious’ risk to mental health
Abortion Act ‘67 “termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman” No term limit 2 doctors certify to the gravity of the risk

 

 

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