Abortion and the law

 

In Australia, one in three women will have an abortion in their lifetime. This means that termination facilities are an essential health service that have been, or will be, accessed by a woman you know: a friend, a sister, a girlfriend…you. Yet abortion remains regulated under criminal legislation in most parts of Australia.

Woroni investigates the legal status of abortion rights in Australia and how the situation in the ACT measures up. 

 

Abortion. It’s a dirty word. It evokes imagery of bloodied foetuses, broken and undignified, hands and feet identifiable. It is, of course, imagery for which the pro-life propaganda campaigns deserve begrudging back pats for their exceptional use of Photoshop.

It is an under-acknowledged fact that unplanned pregnancy is a reality for many, many Australian women. In fact, over half of all pregnancies in Australia are estimated to be unplanned, and around one quarter of all pregnancies are terminated.

The sexual arena is rarely conducive to sensible, forward thinking, but even with preventative measures it largely comes down to a numbers game. In her fertile years, the average woman will cycle over 500 times, meaning that over a 35 year time-frame she has more than 500 chances to fall pregnant. According to the World Health Organisation, even if all contraceptive users used contraception perfectly in every sexual encounter, there would still be six million unintended pregnancies every year. In real, quantifiable terms an estimated 90,000 -100,000 Australian women have their pregnancies terminated every year.

In Australia, abortion is not a hot issue. Rather, it percolates at the periphery of public interest, occasionally launched back into the spotlight with political issues such as the RU486 debate in 2006, and the 2010 prosecution of a Queensland couple under the state’s abortion laws. But, for the most part, our exposure to the abortion debate comes via media channels from the US, giving us ample opportunity to saddle up our high-horses with an exhale of “only in America”. Only in America would state legislatures attempt to wrestle women into the stirrups, the latest manifestation of what is now being dubbed as the Republican Party’s “War on Women”. In recent months, a swathe of red states have initiated regressive legislative packages that force women to submit to a mandatory transvaginal ultrasound prior to undergoing an abortion procedure. It is, without hyperbole or exaggeration, state-sanctioned rape. Abortion in Australia is, by comparison, an extremely cold issue. A false polemic. And this is the problem.

The relative availability of abortion belies the fact that Australia’s system is embarrassingly fractured. And there is no social impetus for reform. In every state and territory, except the ACT and Victoria, Australian women do not have a legal right to choose. Yes, you read that correctly. They do not have an express right under law to make an autonomous decision to terminate their pregnancy. Instead, under the various state instruments, this right is ascribed to one, or sometimes two, doctors who must judge abortion to be in the best interests of the woman’s physical or mental health, or necessary to preserve her life.

Practically speaking, this requirement rarely poses any actual impingement on a woman’s ability to access abortion services. But this seemingly innocuous procedural hoop is latent with ideology that rejects the notions of moral agency and bodily autonomy that should feature front and centre in any self-respecting democracy. There is something irrefutably paternalistic in requiring a woman to justify her decision to a time-constrained doctor who legally possesses the right to refuse, regardless of the rarity with which such right is asserted.

Then there’s the fact that abortion remains regulated under criminal legislation in every Australian jurisdiction, except the ACT and Victoria. Most draconian and archaic of all the laws are those in NSW and Queensland. In legislation which pre-dates Federation, it remains a crime in NSW and Queensland for a woman to intend to abort her own pregnancy, for another person to intend to do so, and for someone to unlawfully supply or obtain for someone else the means to induce an abortion.

The “it aint broke don’t fix it” argument held sway until 2009 when a Cairns couple, 19 year old Tegan Leach and 21 year of old Sergie Brennan, were charged under the first and third offences after they imported an abortifacient drug from the Ukraine and used it to terminate Leach’s eight-week pregnancy. Their acquittals hinged on a technical interpretation of the “noxious” status of the drug. Had they been convicted, they were looking at jail time of up to seven and three years respectively. Despite the media fracas generated by the trial, and widespread academic criticism calling for the overhaul of the archaic laws, they continue to exist in the same form as they did when they first became operative in 1899.

Here in the ACT, abortion has been decriminalized since 2002, when it was repealed from the Crimes Act. Our laws are now described as the most liberal in the country. Really, all they do is regulate abortion where it belongs: under health legislation, alongside other medical procedures. As it stands, abortion in the ACT can only be carried out by a medical practitioner in an approved medical facility. A doctor’s referral is not required.

During the research for this piece, Woroni met with Kate*, a 23 year old ANU student who attended the Marie Stopes clinic in Civic for a medical abortion in 2010. She spoke openly of her experience, one that she likened to visit to a standard medical clinic:

“You have this idea of this stereotype of woman who gets an abortion and that’s just not true at all. I was there with my partner, there were two young teenage girls, an elderly Indian couple, a woman by herself – all different ages, all different ethnicities.”

Before seeing the doctor, a nurse performed an ultrasound on Kate with the screen turned away, confirming that she was eight weeks pregnant. The doctor then prescribed her with two doses of pills to take to induce the miscarriage. The first dose is taken during the consultation, and the second dose is taken at home 24-48 hours later. Within an hour of taking the second medication, the process starts. For Kate, at the upper threshold of the 9 week cutoff, the pain was agonizing.

“It’s not gradual pain. I started feeling sick and then I vomited explosively. I just remember thinking about nothing else but how to stop the pain, how I would never want to do this again. I was completely delirious, I couldn’t speak.”

During this time, Kate passed what she described as a grape-sized glob of tissue. A fortnight later she attended a standard follow-up appointment to ensure that the miscarriage had occurred without any irregularities.

While she bears no guilt in relation to her decision, Kate acknowledges the stigma that remains associated with women who have an abortion. “For me it was a simple decision…but I felt really guilty that I didn’t feel guilty, and I knew people would be uncomfortable with me not feeling guilty about it at all.”

With Victoria the only other state to provide the same ease of access to an abortion-provider as the ACT, access across the rest of Australia remains circumscribed by restrictive and outdated legislation. The inability of the abortion issue to make the transition from the academic arena, where the calls for reform are loud and frequent, to the political scene, suggests we can expect to see this antiquated and fragmented system in place for decades to come. For the tens of thousands of Australian women who access abortion facilities annually, reform is key to fully destigmatising this essential health service.

 

*Name changed to protect identity of interviewee.