Soft law problems with abortion time limits

Ruth Fletcher, Professor of Law, Queen Mary University of London, UK

Keywords: Irish abortion law, soft law, abortion time limits, failed early medical abortion, feminist legal witnessing

I am at the hospital because I have taken tablets for a medical abortion but the pills didn't work. I am still pregnant at 12 weeks and three days and the hospital said they can't help me any further (An abortion-seeker, Abortion Support Network newsletter, 26 September 2025).

Ireland’s new system of lawful abortion care shows that significant systemic change towards reproductive justice is possible, even in hostile times. Since #repealedthe8th thousands of lives are getting relief from unsupportable pregnancy, and gaining some freedom to make life with others on their own terms.

A fee-free publicly supported abortion service is being made available up and down the country through GP-led community health care in the first nine (plus six days) weeks of pregnancy and in maternity hospitals after nine weeks. Abortion-seekers no longer risk criminalization, even if they have an abortion outside the terms of the legislation, as the Health (Regulation of Termination of Pregnancy) Act 2018 (the 2018 Act) makes them exempt from its criminal offences. They are free to avail of their state’s public abortion care or to seek the independent support of feminist organisations such as Women help Women and the Abortion Support Network. But we know this is not enough.

The new abortion infrastructure shows us how reproductive inequalities linger after feminists have succeeded in changing the legal terrain. Even if those who are eligible for ‘early’ abortion care face fewer barriers in a post #repealthe8th world, the 12 (plus zero days) week legal time limit operates as a harsh cut off point, and the lawful pathways after 12 weeks are narrow and difficult to access.

Lawful abortion pathways are still being interpreted through a foetocentric lens to the disadvantage of pregnant people. And old and new hierarchies among life-makers mean that some of those who can get pregnant are deemed less worthy of recognition and support than others. The free public abortion service is not as accessible as it could be, especially for those made ‘late’ by their life circumstances, inevitably in brutally unequal terms. And criminalisation still threatens abortion providers and supporters who are not exempt from the rights-reducing and disproportionate new criminal offences in the 2018 Act, even if they can defend themselves legally on good faith grounds.

What kind of feminist legal work is called for now? 

Critical and feminist legal witnessing

This blog, and The Morrigan series out of which it grew, makes some space for answering that question. Here legal witnessing is a short-hand for the collection of critical feminist practices that involve active observation of law as it impacts on everyday life in order to repurpose that impact and use it to make an intervention towards transformative justice.

This kind of witnessing belongs to the feminist legal commons as shared expertise; it is not owned by any one in particular. We can see legal witnessing and the generation of transformative legal knowhow in the work of groups like Justice for Magdalenes or the peer support of organisations like the National Traveller Women’s Forum, as well as in the reproductive justice campaigning of the Abortion Rights Campaign.

Anyone can witness by accompanying another in observing the force of law on life and joining together to push back. This feminist witnessing is active, partial, situated and multiple. There are times when it needs to become professionalised, research-led, or specialist to make its intervention. But witnessing is always accountable to everyday people and their experience of law. That everyday accountability is what gives witnessing its power and makes it different from the kind of legal practice that affirms authority and violence in the name of law.

We #repealedthe8th but the powers that seek to keep reproducers in place, and at pace, have not gone away, indeed they are regenerating themselves in ways that are challenging to anticipate. In response, legal witnessing works as critical praxis to replace brutalising legal authority with careful legal engagement through three related kinds of activities: a) observing how law is concretely situated in everyday life, b) retrieving law’s multiple and diverse sources, and c) opening law up to different possible applications.

Witnessing soft law exclusions of ‘illegal’ follow-up abortion care

I have been fully informed of and understand to my complete satisfaction: … if my abortion fails and I have an ongoing pregnancy that goes beyond 12 weeks of pregnancy, it is illegal for a doctor to provide an abortion unless there is a risk to life or health, risk to life or health in an emergency or condition likely to lead to death of foetus (HSE medical abortion consent form) 

As we look at problems and challenges in a post-repeal world anew, one observation that came out of a May 2026 gathering of legal witnesses at QMUL (described by Smietana and colleagues here), is that there is more to do and say about how soft law is contributing to the understanding of what kind of abortion care can be made available.

Soft law is the collection of non-binding legal rules such as guidance and codes of practice that have significant legal effects, but in different ways to that of hard law with its binding, enforceable legal rules. As explained further in Witnessing Legal Sources of Time, current guidelines on a range of legal issues, including the operation of the 12 week time limit and the scope and meaning of a risk of serious harm to health and/or a risk to life after 12 weeks, do not yet take on board the full range of legal options they have available to them for implementation. They could draw on other legal sources to adopt more rights-respecting and harm-reducing perspectives.

In reflecting on interdisciplinary methods for doing this kind of legal work, including by engaging with arts-based methods to imagine what better abortion care might be, we thought it would be helpful to understand more concretely how some of the soft law measures are operating on particular issues i.e. failed EMAs up against the time limit (see the full blog series, supported by the SLSA, here).

Soft law on abortion care is not only fleshing out the hard or binding legal framework in practical ways, with guidance, plans and models of care. It is also having an impact on how the hard legal boundaries of that framework are understood, including in some cases by declaring what is illegal. We can see this most clearly perhaps in the case of the provisions in the guidance, and in the medical consent form which the guidance underpins, which related to ‘failed’ EMA up against the 12 week time limit.

The accelerated atmosphere of the post-repeal moment contributed to rushed policy decisions (see Taylor here), and the adoption of poorer standards of abortion care than might be expected (see Creswell on better post 12 weeks abortion implementation in Northern Ireland). As things stand, key soft law provisions in the HSE’s Model of Care (2023: 27), the NWIHP guidelines (2022: 20), the ICGP Quick Reference Guide (2025: 25), and the original IOG and RCPI Interim Clinical Guidance (2018: 8), all state that it is illegal to provide follow up abortion care after a failed EMA in cases where the pregnancy is ongoing and more than 12 weeks gestation, unless the exceptional grounds under ss. 9-11 of the 2018 Act apply.

This applies even though an early medical abortion has been lawfully certified and attempted before 12 weeks, but ‘failed’, and in spite of best clinical practice stipulating that incomplete abortions are best completed. As a result, some of the approximate 1-2% whose medical abortion regimen does not work, are being denied an abortion they need and left to fend for themselves when they have taken drugs that could have harmed the pregnancy.

If the current barrier to safe abortion in cases of failed EMA after 12 weeks is a soft legal one, it falls to the relevant bodies - namely the Department of Health, the Chief Medical Officer, and/or relevant the professional colleges - to use their jurisdiction and expertise to replace it with better guidance. At the moment, they seem to feel that their hands are tied and that they are prevented from adopting better policy and practice by The Law. But is this necessarily so? And what can be done to replace chilling and brutalising legal authority with warmer and careful legal engagement?

The blog series takes a step in the direction of careful legal engagement on the issue by drawing from the experience of abortion seekers and abortion providers in documenting the harmful effects of this policy and in thinking about possible alternatives. The series on witnessing failed EMA policy collects together a mixture of first-person reflections (Taylor, Kumar, Horgan, Walsh and Creswell) and research-led commentaries (Fletcher, Conlon et al, Smietana et al, Martin, Murray, Campbell and Schmid) for engaging other audiences and showing why this policy is not socially or legally justified, and ought to be changed.

The series also identifies a specialist research question for lawyers as to whether the current policy position is one among a number of possible legal options, or indeed whether it is ill-advised on the grounds of conflict with legal norms such as state obligations to fulfil rights. At the moment, the only legal advice that is publicly available on these questions as they have informed policy developments and their review, is a letter from the Chief Medical Officer, a letter from the Department of Health (both available as appendices in the 2018 Guidelines), and a recommendation from barrister Marie O’Shea in the independent review (2023) she conducted for the Department of Health.

While all of them provide some insight, none of them fully answer the question as to whether the current policy position is legally required. There is clearly a role for the people, texts and images that move in and out of critical legal witnessing practices to find ways of weaving new and adapted careful abortion pathways for all, including by removing soft law barriers for those who experience failed EMA up against a harsh time limit.

Thanks to the community of feminist legal witnesses out there in the world, to the IFPA for partnering, and to the SLSA and QMUL Impact Team for funding the workshop that inspired this blog and The Morrigan blog series.