Non-development

While the cultivation of an inward flow for health care is often represented as a development opportunity (Wilson, Reference Wilson2011), governance of outward flows are usually only framed in development terms when states are too poor to provide adequate health care. Failures to provide controversial health-care services are not generally seen as failures of development because development is understood in economic rather than social terms. But as scholars of development have shown, development also works through techniques that manage reproduction and family life (Bedford, Reference Bedford2009). Decisions not to provide certain forms of health care contribute to development just as much as decisions to provide (see further, O'Connell, Reference O'Connell2005; Harrington and Stuttaford, Reference Harrington and Stuttaford2012). They present an opportunity to draw out the significance of domestic failures to provide health care, life-saving abortion in this instance, while relying on extra-territorial provision. Moreover, the concept of development has played a role in characterisations of the Irish state that help contextualise the normalisation of this domestic failure and extra-territorial reliance.

The conception of Ireland as a ‘developmental state’ (NESC, 2005; Murphy, Reference Murphy, Jacobson, Kirby and O'Broin2006, p. 101; see further, Ong, Reference Ong2006) emphasises its historical underdevelopment as a welfare state, the contemporary trend of relatively low spending on social protection, of weak redistribution through the tax and welfare systems, and its adjustment to global market forces through policies which encourage foreign direct investment and export-led growth. O'Riain (Reference O'Riain2004, p. 28) has argued that Ireland represents a new kind of developmental state, the developmental network state, which ‘mediates between the global and the local, connecting them and shaping their relationship’. Conceptions of Ireland as a ‘competition state’ similarly emphasise the state's role in global/local relations, but characterise the state as prioritising ‘the needs of global competitiveness over the welfare needs of its own citizens, especially the most vulnerable’ (Jacobson and Kirby, Reference Jacobson, Kirby, Jacobson, Kirby and O'Broin2006, p. 36; see also Kirby, Reference Kirby2009; Kirby and Murphy, Reference Kirby, Murphy, Adshead, Kirby and Millar2008). Both characterisations emphasise the need to pay attention to Ireland's underdevelopment of social services including health care, and to its economic reliance on foreign investment and export-led growth. These features of the Irish state − socially underdeveloped in health and welfare provision and economically reliant on non-domestic markets – are part of the backdrop to its non-development of legal local abortion services.

The CPA could have used its tools of governance to clarify, or even develop, the scope of an existing legal duty to provide abortion to women in life-threatening circumstances. In identifying abortion as a harm that needs to be reduced, the CPA's mandate clearly conforms with the general legal framework which depicts abortion as a wrong for infringing the legal value of foetal life. This kind of mandate to reduce abortion in general terms without consideration for the circumstances in which it may be requested is clearly problematic from a public health perspective (Berer, Reference Berer2000; WHO, 2012; 2004b). Such a perspective generally accepts that abortion can be part of a harm-reduction strategy given concern for the effects of pregnancy on women's health and well-being (Erdman, 2011). Abortion may also be justified as a public health measure on the grounds that protecting non-sentient life forms (such as the foetus before, and possibly after, twenty-four weeks' gestation) may not be sufficient reason in itself for restricting access to abortion (see further, RCOG, 2010).

However, Irish law clearly recognises that the ‘unborn’ has rights which restrict what can be done to it. But Irish law also recognises that a balancing act has to be performed between foetal rights and women's rights, and that women have a right to abortion when there is a risk to their lives as a result of pregnancy. Second, it is possible that the constitutional balancing of rights could be interpreted to include other grounds of abortion. The existing legal framework permits life-saving abortions and may permit other kinds of termination. Therefore, public health policy on abortion could legitimately recognise that some abortions are not harmful, and probably should clarify the kinds of abortion which it wants to reduce. But the Agency has ignored any public health mandate to support women in crisis pregnancy by allowing them access to life-saving abortion. The CPA has done nothing to clarify the scope of lawful, harm-reducing abortion, and it has not clarified the actual rate of domestic provision as a matter of medical practice. In failing to do so, the CPA has acted as if there is no public responsibility to provide lawful abortion services and has consolidated the practice of very limited, non-transparent provision.

The state has often been criticised by international human rights bodies for its failure to provide a legislative framework clarifying the circumstances in which abortion is lawful. The most recent criticism came from the UN Committee against Torture, in June 2011, where the Committee called on the state to provide legislation to clarify the scope of lawful abortion in Ireland.Footnote ²⁴ It has defended this failure by arguing that life-saving abortions are provided in Irish hospitals as a matter of practice on a doctrine of double effect type reasoning; i.e. that the intention is to save the life of the mother, and harm to the foetus is a secondary, unintended but necessary effect (see further, All Party Oireachtas Committee, 2000, p. 20). Terminations of pregnancy in cases of pre-eclampsia, ectopic pregnancy and cancer of the cervix have been deemed acceptable by the medical profession because they are not seen as deliberate interventions which have the purpose of ending the pregnancy (All Party Oireachtas Committee, 2000). The state replied to criticisms by the Commissioner for Human Rights in the following terms: ‘The Government is satisfied that any medical treatment necessary to safeguard a woman's life during pregnancy is available in Ireland. It has no plans to bring forward further constitutional or legislative proposals in relation to abortion.’Footnote ²⁵

This pattern of critique and defensive response culminated in 2010 with the finding in ABC v. Ireland Footnote ²⁶ that Ireland was in breach of Article 8 of the Convention. The Court found that C had not had an effective means to establish whether she had a right to abortion in Ireland when her unintentional pregnancy threatened to end her remission from cancer (McGuinness, Reference McGuinness2011). As a result, the Irish state is under an obligation to implement the formal right and provide clear guidance, legislative or otherwise, on the lawful grounds for abortion. The government has set up an expert group to address the implementation of the Court's ruling (de Londras, Reference De Londras2012).Footnote ²⁷ The CPA could have played a role in bringing stakeholders together to address this issue, but it has not.

The CPA could also have played a role in monitoring abortions that are provided domestically where the doctrine of double effect applies. In order to deliver on mandate 2 and assess whether there has been a reduction in the number of women opting for abortion in crisis pregnancy, the Agency has to track the rate of abortion. As I discuss below, the CPA has developed a public discourse on the Irish abortion rate through the use of extra-territorial abortion data. But there is no evidence of the Agency doing any work to clarify or have an impact on the rate of abortion at home. During the ABC hearing, the Court had to ask the Department of Health to generate figures on the abortions that are performed in Irish hospitals, as inadequate information was provided to support the state's claims.Footnote ²⁸ The legal reform process since 1997 has produced occasional reports of terminations performed in Irish hospitals, but there has never been a systematic review of, or clear information about, the scope of therapeutic provision. The Agency has started to cite domestic figures on the rate of teenage pregnancy, but it does not appear to have taken any action to clarify or monitor the numbers of terminations performed in Irish hospitals.

The CPA has also been publicly silent in response to the argument that terminations may be lawful when performed in circumstances where the foetus would not survive birth due to a lethal genetic abnormality. A number of women have come forward to talk about their experiences in this regard (de Barra, Reference de Barra2002; Sheridan, Reference Sheridan2012; McDonald, Reference McDonald2012), and there is considerable public sympathy for women who have to travel for abortion services even though they are carrying foetuses which will not live after birth (Enright, Reference Enright2012). Although legal acceptance of any change on this issue would obviously require judicial interpretation or legislative action, the Agency could have played a role in ascertaining or even developing stakeholder support for permitting abortions in such circumstances.Footnote ²⁹ There is no evidence that the CPA has acted to develop policy on the ground for lawful abortion, even though there have been several political opportunities when some action would have been possible.

In D v. Ireland (2006), the state itself argued before the European Court of Human Rights (ECtHR) that D may have had a legal right to abortion in Ireland, given that the term ‘unborn’ may not include foetuses with lethal genetic abnormalities. Indeed, D lost her case on the grounds that domestic remedies had not been exhausted and that the Irish courts had to be given the opportunity to develop the law in the light of the particular facts. The ECtHR stated: ‘[T]here is, in the Court's view, a feasible argument to be made that the constitutionally enshrined balance between the right to life of the mother and of the foetus could have shifted in favour of the mother, when the “unborn” suffered from a [sic] abnormality incompatible with life.’Footnote ³⁰ In May 2007, the Irish Times reported that the Health Services Executive (HSE) had funded the cost of an abortion in the UK for a woman whose foetus had serious congenital abnormalities that were incompatible with life outside the womb, and that approximately six other abortions for women in similar circumstances were funded by the HSE over the previous year (Carolan, Houston and O'Brien, Reference Carolan, Houston and O'Brien2007; Anon, 2008). During the 2002 referendum campaign, the Masters of the three major maternity hospitalsFootnote ³¹ made a joint statement in their personal capacities supporting the right of women to a termination of pregnancy when the foetus would not survive birth (Coultor, Reference Coultor2002; McCafferty, Reference McCafferty2002). The CPA could have taken some action to clarify support for developing law and policy on this issue, but it has not.

In common with other statutory agencies of its kind, the CPA has the power to gather information on services for crisis pregnancy and to collaborate with statutory and non-statutory bodies in developing policy in that regard. But the Agency has not exercised these powers in relation to information or policy on lawful domestic abortion. Moreover, it has remained silent on the issue of public responsibility for the provision of abortion services to women who need them and have legal rights to them. In failing to acknowledge the need to govern for domestic life-saving abortion services, the CPA draws on the history of an already underdeveloped welfare state. By failing to clarify, resource or develop policy on the delivery of lawful abortion services at home, the Agency plays a role in constituting a state which is unwilling to provide for the needs of its residents. This technology of non-development constitutes Ireland as a periphery by marginalising its role in the delivery of lawful health-care services to its own people, and by making them dependent on non-domestic services. The Agency contributes to the transnational flow for cross-border abortion care by producing the conditions for exit.

Exit

In a context where there is little state desire to provide abortion services, we could expect governance not to care about patient exit. Exit mechanisms usually come into being when governance wants to hold service providers to account by enabling exit and by providing guidance on how exit may be avoided. Although Hirschman (Reference Hirshman1970) did not see exit as only or primarily a market mechanism,Footnote ³² exit has come to be thought of mainly in those terms. Health governance usually adopts exit mechanisms when it encourages competition between providers and enables users to choose between them. As Pickard, Sheaff and Dowling (Reference Pickard, Sheaff and Dowling2006) show, the development of quasi-markets in the English NHS, where Trusts commission services for patients on professional recommendation, has meant that commissioner exit and professional proxy exit, as well as patient exit, have come to exert influence on the governance of health. As exit on this understanding triggers permission to exit, but not usually concern for the terms of exit, we might expect a minimalist regulatory approach to exit for abortion services.

On the other hand, in the context of controversial and restricted services like abortion, we have seen more coercive forms of exit regulation on the grounds of disapproval for the service itself, whether performed at home or abroad.Footnote ³³ Indeed, Irish abortion law has provided commentators with rich fodder for critiquing restrictive responses to exit for health-care purposes (Fletcher, Reference Fletcher1998; McDonald, Reference McDonald2009; Rossiter, Reference Rossiter2009). General jurisdictional principles, and when relevant EU law, usually mean that an individual has the legal freedom to exit their own jurisdiction in order to use health care which is lawful abroad (Clifford, Reference Clifford2002; Dyer, Reference Dyer2005; Chief Medical Officer, 2005). However, there have been moments where states have used domestic legal prohibitions to try and stop individuals from exiting the jurisdiction to use the prohibited health care (Hough, Reference Hough2012; Kreimer, Reference Kreimer1992; English et al., Reference English, MUSWELL, SHEATHER and SOMMERVILLE2006).Footnote ³⁴ One of the interesting dimensions of the Irish abortion context is that constitutional protections have been used coercively to try to stop individuals exiting the jurisdiction or to prevent third parties from assisting those individuals through the provision of information and support (Fletcher, Reference Fletcher1998; O'Leary, Reference O'Leary1992). The legalisation of freedoms to travel and to provide information in the 1990s changed this regulatory context, even if those freedoms have continued to be contested (Anon, 2007b; Schweppe, Reference Schweppe2008; Hewson, Reference Hewson2007).Footnote ³⁵ The CPA's governance of exit to use abortion services elsewhere presents an opportunity to track the implementation of a legal change from treating support for exit as something to be stopped, towards treating support for exit as legitimate and worthy of public funding. In so doing, the CPA's ‘exit strategy’ provides us with an important opportunity to consider the development of different exit mechanisms, and their role in the governance of transnational health-care flows (Jacob, Reference Jacob2012, Chapter 6).

The CPA has developed a governing technique which is neither minimalist nor coercive in the case of exit for abortion services. Rather, the Agency draws on public funds to accommodate and improve the quality of the exit experience. Through public information campaigns and collaboration with service providers and health-care professionals, the CPA has made the use of independent, extra-territorial abortion services an explicit option. Women still have to bear the considerable cost of paying for abortion care abroad (€400–2000 for the termination and €100–500 for travel expenses), but the public provision of information and counselling services so that they are free at the point of use is still significant, particularly in the context of a ‘two-tier’ Irish health service. Only 28.4 per cent of the population are entitled to free health care, and 42 per cent have private health insurance, in a health-care system where patients often pay user fees to see their general practitioner (Millar, Reference Millar, Adshead, Kirby and Millar2008, p. 101; see further, Brick, Nolan, O'Reilly and Smith, Reference Brick, Nolan, O'Reilly and Smith2010; Burke, Reference Burke and Barry2008; O'Connell, Reference O'Connell2005; Smith, Reference Smith2010).

Moreover, the Agency has not washed its hands of patients who exit, but represents itself as having an obligation to acknowledge patient exit and ensure certain standards of information provision in that regard. The extent to which the CPA has succeeded in improving the standards of support remains unevaluated and contested. Women travelling for a termination of a pregnancy with fatal abnormalities have reported great difficulty in getting appropriate support and information from their doctors (Sheridan, Reference Sheridan2012).Footnote ³⁶ But the Agency's representation of itself as working to improve the standards of support for those who use extra-territorial abortion is still significant. In facilitating and subsidising the provision of information about extra-territorial abortion services to clients of pregnancy counselling services, the CPA has drawn selectively on an international shift from coercive to persuasive strategies in the context of unplanned pregnancy (see further, Carabine, Reference Carabine2007; Lee, Reference Lee2004).Footnote ³⁷ Although it has maintained a coercive, restrictive approach to the provision of abortion at home, it has applied more persuasive and permissive strategies (Yeung, Reference Yeung2005) to women's use of extra-territorial abortion services.

The CPA adopted two initiatives early in its mandate which sought to have an impact on the abortion decision-making process and the exit experience. The Positive Options campaign was a public information campaign which sought to inform women about their options in a crisis pregnancy, including the option of using abortion services abroad.Footnote ³⁸ The Primary Care Guidelines were targeted at health-care professionals, particularly general practitioners, and sought to set some standards in relation to abortion advice if a woman was travelling abroad. These initiatives were adopted in response to concern over abortion-seeking women's failure to use Irish support services. A common public health argument against state reliance on extra-territorial abortion services was that domestic non-provision did not stop women from accessing abortion; it just delayed them in doing so. If women were delayed in accessing abortion, they were likely to have terminations at later gestations, and later terminations were riskier than earlier ones. But if women could be supported in accessing abortion abroad quickly, then these negative consequences could be minimised. Qualitative studies such as Mahon et al.'s (Reference Mahon, Conlon and Dillon1998) had shown that most women refer themselves to abortion clinics abroad by finding information on the Internet, in phone books, or through friends and contacts. Many women experiencing crisis pregnancy or choosing abortion did not use and were unaware of support services (CPA, 2002, p. 13; 2003, p. 17). In response, the CPA sought to improve the quality of information and support for abortion-seeking women with the aim of making travelling for abortion a less stressful experience.

The stated rationale of Positive Options, the Agency's public information campaign, was ‘to empower women to seek assistance without judging them or adding to their crises’ (Crisis Pregnancy Agency, 2002, p. 13). The adoption of this ‘non-judgmental approach’ to women's consideration of abortion was a significant development in public policy, given past decisions to take women to court for planning an abortion abroad. The Positive Options materials clearly address the option of extra-jurisdictional abortion: ‘This leaflet is for use by women who have received pregnancy counselling and have decided to travel to the UK for a termination of pregnancy’ (Crisis Pregnancy Agency, 2007, Appendix B). But Positive Options also promotes the use of pregnancy counselling services by subsidising them so that they are free at the point of use and by advertising their contact information through a wide range of media (Crisis Pregnancy Agency, 2008, p. 20). Women are told that they can discuss their options, including abortion if requested, during a free counselling session. Positive Options became the ‘umbrella brand’ promoting services offering state-funded crisis pregnancy counselling in Ireland (CPA, 2008, p. 18).  In this way, Positive Options has played a key role in creating a public discourse which is sympathetic to the needs of women with unplanned pregnancies, including their need for abortion abroad.Footnote ³⁹

The inclusion of information about abortion services in the Positive Options materials was contested from the beginning. The Agency developed the campaign in collaboration with the six voluntary agencies involved in service provision at the time: Cherish,Footnote ⁴⁰ Cura,Footnote ⁴¹ Dublin Well Woman,Footnote ⁴² the Irish Family Planning Association,Footnote ⁴³ LifeFootnote ⁴⁴ and Pact.Footnote ⁴⁵ There are now fifteen voluntary and statutory organisations under contract to the Agency. When the Positive Options campaign began, three of the pregnancy counselling services − Cherish, Dublin Well Woman and the Irish Family Planning Association − provided information about abortion services and three – Cura, Life and Pact − did not. Anti-abortion agencies also claimed to provide abortion counselling on the grounds that they would discuss abortion. During the development of the first National Strategy, the CPA did market research on what people wanted from pregnancy counselling services. One of the results of the market research was that people wanted clarity on which services provided abortion information. During this process, Pact changed its policy and began to provide abortion information as part of its pregnancy counselling service. This signalled the beginning of a shift towards the provision of abortion information as the norm rather than the exception.Footnote ⁴⁶

Once the Agency adopted the Positive Options materials, the contracted providers were under an obligation to use those materials, including the leaflet for women contemplating abortion abroad. This has caused considerable controversy in Cura in particular, and in 2007 four counsellors resigned in protest over being instructed to use the abortion leaflet (Carroll, Reference Carroll2007; Anon, 2007a). Support for the counsellors led to Cura refusing to distribute the Positive Options leaflet over a two-year period. As a result, in July 2007 the Agency initially refused to renew its contract with Cura, a contract then worth €700,000. A new three-year service level agreement, worth €2.2 million, was agreed in November 2007. This did not require Cura volunteers to distribute the leaflet or to refer women to other state-funded agencies which did provide information about abortion clinics. Rather, Cura would refer women to their general practitioners.

In the wake of the stand-off, the CPA materials now make it explicit that Cura and Life will not provide information about abortion services abroad. The Positive Options website now states: ‘Some agencies can provide information on abortion and abortion services outside the country, if you request it, during your counselling session. Two specific agencies – Cura and Life – will discuss abortion with you but will not provide information on abortion services abroad.’Footnote ⁴⁷ The management of information provision has commanded a great deal of the Agency's time, energy and resources as it negotiates governance which facilitates women's exit to use abortion services abroad. In the process, the provision of support for those who exit for abortion services has become the network norm, and those who do not want to include abortion information in their service provision are accommodated, but they have become the exception.

The Agency also worked with health-care professionalsFootnote ⁴⁸ in order to clarify and improve the support for women in crisis pregnancy. In so doing they sought to improve on the minimalist regulatory approach which has been adopted by the health-care professions in response to the issue of exit for abortion services. In 2004, the CPA drew up Primary Care Guidelines in collaboration with the Irish College of General Practitioners (ICGP).Footnote ⁴⁹ The Guidelines sought to provide general practitioners with the information needed to support a woman who found herself with an unplanned pregnancy, and include the information leaflet for women who had decided on a termination in the UK after pregnancy counselling. The Guidelines list the state-funded agenciesFootnote ⁵⁰ (including the two anti-abortion agencies) who offer confidential free pregnancy counselling (2004, p. 14). They list the organisations (excluding the two anti-abortion agencies and including Reproductive Choices)Footnote ⁵¹ that ‘provide contact details for abortion clinics, if requested, in a pregnancy counselling session’ (p. 14). The Guidelines also provide the contact information for Marie Stopes UK and BPAS, as two ‘organisations who have experience in dealing with Irish women who have opted for abortion’.

These Guidelines were published in a context where the Medical Council had routinely adopted a conservative stance on abortion (see further, Gantly, Reference Gantly2010), and where the government and the Medical Council had provided minimal guidance to health-care professionals as to what counted as a risk to life justifying termination of pregnancy. At the same time as the CPA and the ICGP were adopting the Primary Care Guidelines, the Medical Council adopted the sixth edition of its Ethical Guidelines (2004).Footnote ⁵² The relevant paragraphs of that edition of the Ethical Guidelines clearly refuse to accept that abortion can be a legitimate option for women, except in life-saving circumstances (2009, para. 24.6). The production of a policy document that represented a collaboration between the CPA and a body representing doctors, the ICGP, was a significant policy development in itself. The production of professional guidelines that contemplated abortion as a legitimate option for pregnant women was also an innovation. The focus on cross-border abortion care enabled a development in governance where a focus on abortion per se had not.

These two initiatives, Positive Options and the Primary Care Guidelines, were significant in announcing a change in public regulation when it came to abortion advice for women and members of the public, and for general practitioners and other health-care professionals. The public information campaign was the first proactive state strategy to address the perceived needs of women travelling abroad for abortion services. The state had previously legalised the provision of abortion information in a counselling context, and had funded the provision of non-directive pregnancy counselling on an ad-hoc basis through the Department of Health. But the adoption of a national campaign which promoted non-judgmental responses to crisis pregnancy, and provided free counselling services which contemplated abortion abroad as an outcome, was a significant change in public discourse and strategy on abortion. State disapproval of abortion has not stopped abortion travel becoming an object of networked governance. Exit in order to access abortion abroad is no longer governed mainly through a restrictive or minimalist framework. Rather the CPA has developed a publicly funded, supportive strategy to try and improve the quality of the exit experience and reduce the negative possible outcomes of travelling for abortion services. Although the effectiveness of this strategy remains to be evaluated, it does illustrate how state agencies may peripheralise abortion care by investing in the provision of support for travel rather than in the provision of the service, and how ‘exit’ can become a contested but managed focus for governance.

Use

The reporting of service use has become a prominent technique in the audit culture associated with new governance. Yeung (Reference Yeung2005) notes that although ‘publicity management’ has become a key technique of administrative ‘suasion’ (the promotion of regulatory compliance through the provision of information), it remains relatively under-investigated. For Hervey (Reference Hervey2008, p. 106), comprehensive quality monitoring systems are a key feature of new health-care governance as it seeks to enhance the patient experience through open reporting. The Agency has drawn on these techniques and applied them to women's use of abortion services in other territories, albeit in a rather minimalist fashion. By identifying abortion as a public health issue that can be reported and measured (Cook, Reference Cook2009), the CPA makes abortion an issue of population management. This understanding sits alongside, but is distinct from, the legal representation of abortion as a wrong performed by individual women and individual providers. It is also distinct from the representation of Irish women's abortion-seeking as a clandestine hidden activity which is not publicly recognised (Fletcher, Reference Fletcher1995; Rossiter, Reference Rossiter2009).

From the beginning, the Agency's ability to assess its own performance on the mandate of abortion reduction has been dependent on tracking the numbers of women who have abortions. The Agency needed to publicise abortion figures in order to demonstrate whether it was having an effect on abortion practice. As discussed above, it has not produced any figures on abortions in Irish hospitals. Rather, it has developed a practice of reporting the rate of Irish abortion by reference to the reported numbers of extra-territorial abortions on Irish residents, including the UK Department of Health's annual statistics on abortion. Under the Abortion Act 1967, medical practitioners providing a termination in England and Wales have a duty to certify the procedure and to notify the Chief Medical Officer of the termination within fourteen days.Footnote ⁵³ The duty to notify applies to non-resident and resident women in the NHS and in the independent sector. The Department of Health publishes an analysis of this information annually, an analysis which includes data on the numbers of women who provide Irish addresses. Once this data becomes available each year, the CPA releases a press statement publicising these numbers (Anon, 2011).

The data show that Irish women are the largest national group among non-residents who use abortion services in England and Wales. Some 67 per cent of the 6,535 notified abortions performed in England and Wales on non-residents in 2010 were on women from the Republic of Ireland, and 17 per cent were from Northern Ireland (Department of Health, 2011, p. 11). The data record a slow rise in the rate of notified abortion among Irish women from 1980 until 2001, when the numbers begin to drop again. The rate of notified abortion rose from 5.1 per 1,000 females aged 15–44 in 1981 to 7.5 in 2001, but had dropped to 4.1 as of 2011.

The data only record those women who give Irish addresses when they attended abortion clinics. This provides an incomplete picture because some women will not give their home address when they attend, some women go to clinics in other jurisdictions, and some women are accessing medical abortion over the Internet.Footnote ⁵⁵ The Irish Medicines Board have responded to the use of medical abortion by ordering customs to seize abortion drugs. Some 1,216 were seized in 2009 (Anon, 2010; Ruane, Reference Ruane2010). In response to the claim that Irish women were travelling to other jurisdictions (CPA, 2007a, p. 22; CPA and ICGP, 2007, p. 7; see also Human Rights Watch, 2010, p. 10), the Agency developed what it called a ‘monitoring system to gauge the numbers of women travelling to other EU jurisdictions for an abortion … In 2008, similar to other years, the Netherlands emerged as the only other country to which Irish women are travelling in significant numbers. Approximately 330 women travelled to the Netherlands in 2008 for abortion services’ (CPA, 2008, p. 4). In this way, the Agency developed a strategy of working with extra-territorial clinics in order to get a fuller picture of the abortion rate. The focus on the governance of abortion use in other jurisdictions has facilitated public recognition of women's demand for abortion services.

The reporting of extra-territorial abortion also entails an official acknowledgement that Irish women are having terminations for reasons other than life-saving need. Some 97per cent of the notified terminations performed on non-resident women in England and Wales identified ground C alone as their justification in 2010 (Department of Health, 2011, p. 36). Most (67 per cent) non-resident women are from the Republic of Ireland. Therefore, ground C is likely to be the legal ground which justifies most Irish women's terminations in England and Wales. In other words, the official reason for their terminations is because the pregnancy posed a risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman (DoH, 2011, p. 4). It is well documented that this ground enables liberal interpretations of women's reasons for abortion (BMA, 2007, p. 2), even though it makes women dependent on medical practitioners for authorisation (Sheldon, Reference Sheldon1997). By making the rate of extra-territorial abortion stand in for the rate of Irish abortion, the Agency has brought women's health within official discourse as a justification for Irish abortion.

The Agency's main motivation for publicising the abortion statistics, however, is in order to assess whether it is meeting the mandate of abortion reduction. In this way, abortion reporting continues to represent abortion as a harm, even as it acknowledges that Irish women are having abortions for reasons which would be illegal at home. The numbers of notified abortion have decreased since 2001, and the Agency regularly proclaims its success in reducing the abortion rate. Annual reports, speeches and press releases regularly note a fall in the numbers of abortion-seeking women. Then-chief executive, Caroline Spillane, said: ‘In 2008, 4,600 women travelled from Ireland to the UK for abortion services. The numbers of women travelling from Ireland, published by the UK Department of Health, have fallen for the seventh successive year, marking a decrease of 31% since the Agency's establishment in 2001’ (CPA, 2008, p. 4; see also CPA and ICGP, 2007, p. 7). Whatever the reasons for the fall in the notified numbers, the Agency is unlikely to be the main contributing factor given what is known about the reasons for women's abortion decisions (Mahon et al., Reference Mahon, Conlon and Dillon1998). But the Agency's legitimacy depends in part on being able to deliver on this mandate, and it has created a public discourse which identifies a link between its success and a lower rate of notified abortion.

The Agency's documentation and discussion of women's use of extra-territorial abortion services brings that use within official discourse. Through the reporting of abortion statistics they have developed a public discourse that recognises Irish use of abortion services, but normalises non-Irish provision. The CPA's abortion data strategy has meant that abortions which happen to Irish women on non-Irish soil have become officially accepted as Irish abortions. This has the interesting consequence of producing a public discourse which normalises abortions that would be illegal in Ireland. But their reporting of women's use of extra-territorial abortion care still represents abortion as a harm which needs to be reduced. As cross-border abortion care comes within domestic governance, governance claims a role in producing the abortion rate. Cross-border abortion care is governed lightly through forms of monitoring which include statistical reporting and negotiation with extra-territorial providers in order to gather data. In the process, women's use of abortion for non-life-saving reasons has become recognised as a public harm which needs to be reduced through ‘soft’ governance measures, rather than as an individual wrong which needs to be prevented or hidden.Footnote ⁵⁶ At the same time, this public body constitutes peripheral governance as it claims to address the abortion needs of its residents by tracking the numbers of women who are accessing abortion in the ‘core’ states, and claims to have an impact on their use of extra-territorial services.

Return

Although law has occasionally intervened to try and prevent women exiting for abortion, there is no evidence of legal intervention to prosecute women on their return from abortion services abroad. Jurisdictional principles and EU law should mean that women who avail of services which are lawfully available in other Member States would not be subject to prosecution in that regard on return.Footnote ⁵⁷ In some contexts, the threat of some form of punishment on return for use of health care which is legally restricted at home but lawful abroad, has been significant. The possibility of prosecution for assisted suicide on return for those individuals who accompanied loved ones to Dignitas in Switzerland has mobilised demands for domestic law reform (Lewis, Reference Lewis2011, pp. 120 − 21).Footnote ⁵⁸ A similar possibility of prosecution for female genital mutilation (FGM) performed abroad is another case in point.Footnote ⁵⁹ McHale (Reference McHale2013) has suggested that the NHS should consider denying free treatment to those who return from having had organ transplants from paid donees abroad. In the context of return to Ireland after the use of abortion care abroad, however, we have not seen the threatened use of existing legal rules against returning abortion users or their companions.Footnote ⁶⁰ Nor have we seen the development of new legal rules in order to punish abortion users or deny them access to public health care. On the contrary, regulation has historically adopted a minimalist approach to the issue of return, and there has been little acknowledgement or accommodation of women's post-abortion experience.

But more recently, women's return experience has become the object of harm reduction strategies by the CPA in response to criticisms of the domestic status quo. One of the key public health arguments against reliance on cross-border health care is that it compromises the continuity of health care and the ability to address complications which may arise after the patient has returned home. Although there is a dearth of evidence on the health impacts of travelling for health care, it is logical that women who experience complications on return home will have difficulty consulting those who treated them in the first place, given the distances involved. Women who use abortion services abroad are likely to be reluctant to approach local health services on return, because of public disapproval of abortion. If women don't look, or delay looking, for medical attention when they need it, or if local health-care professionals are not appropriately trained, their health could suffer. The CPA's strategy on post-abortion care has been one of the government's primary mechanisms in responding to this kind of critique. The governing logic of its response is that the criticism will be undermined if it can be shown that women are not overly comprised by, and do receive follow-up care after, treatment abroad. If women can access quality follow-up care at home, then having to travel abroad for an abortion is less of a problem.

As a result, the CPA has implemented its third mandate by putting considerable resources into providing and promoting post-abortion care on women's return from using extra-territorial abortion services. They have done so because they want to reduce the potential for negative health outcomes from abortion travel, and thus the demand for abortion reform at home. The third mandate itself has expanded slightly in scope during the Agency's lifetime. Originally, the mandate authorised the ‘the provision of counselling and medical services after crisis pregnancy’, and in 2007 this became ‘the provision of counselling services, medical services and such other health services for the purpose of providing support, after crisis pregnancy, as may be deemed appropriate by the Agency’.Footnote ⁶¹ The return strategy has worked in a similar way to the exit strategy in that it has involved contracting with service providers, a public information campaign, and collaboration with health-care professionals on guidance.

The first problem that the Agency sought to tackle was the low take-up of post-abortion services due to the stigma attached to abortion-related services and women's fear that they would be criticised for their abortion decisions. The National Strategy reported that the majority of women who travel for abortion ‘do not receive post-abortion medical check-ups or seek post-abortion counselling when they return to Ireland. Perceived stigma and secrecy surrounding abortion make it likely that, currently, women do not feel comfortable about seeking post-abortion services’ (2003a, p. 17). As a result, the Agency sought to remove the stigma associated with post-abortion services and to improve women's return experience.

The Agency contracted with service providers to make free post-abortion medical check -ups and free post-abortion counselling available to clients, in order to achieve this goal. As with the exit strategy, the return strategy has enabled an expansion in and beyond the six services that were involved in post-abortion support services when the Agency began in 2001. Nine services throughout the country currently provide free post-abortion medical check-ups, and fourteen, including two anti-choice agencies − Cura and Life − provide free post-abortion counselling.Footnote ⁶² CPA representatives frequently refer to the fact that the Agency has a strategic priority to deliver improvements in the availability and accessibility of post-abortion services (CPA, 2008, p. 19). A key difference between the exit strategy and the return strategy as they have developed in collaboration with service providers is that the post-abortion context has not led to service providers refusing to implement their contractual obligations, as in the Cura stand-off, discussed above. This distinction between refusing to provide abortion information and refusing to provide post-abortion care seems to suggest that the anti-choice providers involved are more motivated by harm prevention, as they see it, rather than by punishment of perceived wrongs.

In November 2008, the Agency's post-abortion strategy received fresh momentum with the launch of a public information strategy that focused on abortion aftercare.Footnote ⁶³ The Agency established a new website, <www.abortionaftercare.ie>, a free messaging service, and invested more resources in the promotion of post-abortion care (CPA, 2008, p. 20).Footnote ⁶⁴ At the same time, the Agency began tracking the use of post-abortion services and communicating an increase in take-up. Director Spillane said: ‘In the first two months of the campaign, there were 2,395 visitors to abortionaftercare.ie, while 654 SMS requests for information were received. In 2008, there was an increase of 12% in the number of post-abortion medical checkups funded by the Agency’ (2008, Director's comments). As the Agency plays a role in normalising the use of post-abortion services, it develops its own responsibility for governing women's return experience and minimising the negative consequences of public reliance on extra-territorial services.

As well as funding and promoting independent post-abortion services, the Agency worked with health-care professionals to address and improve the integration of abortion aftercare within general practice. At least since 2000, the focus on return after cross-border abortion care has enabled professional bodies to recognise a duty of care to women who have had an abortion. The Institute for Obstetricians and Gynaecologists stated in 2000: ‘We recognise our responsibility to provide aftercare for women who decide to leave the State for termination of pregnancy. We recommend that full support and follow up services be made available for all women whose pregnancies have been terminated, whatever the circumstances’ (All Party Oireachtas Committee on the Constitution, 2000, p. 44). The submission was adopted as Appendix C of the sixth edition of the Medical Council's Guidelines in 2004. The current, seventh, edition of the Ethical Guidelines provides that medical practitioners ‘have a duty to provide care, support and follow-up services for women who have an abortion abroad’ (2009, para. 21.3). The focus on return from abortion services has enabled professional regulation to avoid a punitive response to women who have had abortions, and instead to emphasise that these women deserve non-judgmental health care, like any other patient.

In 2004−2005 the Agency collaborated with the ICGP to investigate the provision of abortion aftercare, among other things. Of the GPs surveyed, 95 per cent claimed to provide post-abortion care, an increase of 7 percent from the figure reported in 1998 (Ni Riain, Reference Ni Riain2006, p. 36; CPA and ICGP, 2007). Since then, the Agency has developed a range of guidance materials which normalise and govern the provision of follow-up care after using extra-territorial services (CPA and ICGP, 2007, p.23; CPA, 2007a, p. 3). The recommendations are that patients have a post-abortion check-up three weeks after the termination, and that doctors confirm that a termination has been successfully carried out, assess the physical and psychological wellbeing of the patient, and advise about contraception. These abortion aftercare documents explain abortion procedures performed at the clinics (2007, p. 15), clarify that abortion is a low-risk procedure, outline the possible complications, and state that there is no established link between abortion and subsequent infertility, or between abortion and breast cancer (2007c, p. 26). The fact that abortion is in the patient's past and has been performed elsewhere enables it to be discussed more explicitly. As a result, the evidence base on abortion risks circulates in post-abortion governance strategies, and is available to contest the claim that abortion harms women.

In this way we can see that the political desire to rely on extra-territorial abortion provision has produced a governing technology which uses the moment of return to legitimate a form of abortion care. The return technology seeks to normalise abortion by removing stigma, subsidising post-abortion care and promoting professional duties to care for women who have terminated a pregnancy. But it does so on terms that assume that the abortion is performed in another jurisdiction and that abortion is a harm which can no longer be prevented.