The Right To Choose, Four Decades On


Forty years ago the US Supreme Court handed down a decision that affirmed a constitutional right to abortion in that country. Roe v Wade was decided a few years after the landmark legal decisions that provided access to abortion in Australia, the Menhennit ruling in the Supreme Court of Victoria in 1969 and the 1971 Levine ruling in New South Wales.

In Australia, abortion is a matter of state law. The law varies from state to state but abortion is de facto legal across the country. If you can afford to terminate an unintended pregnancy, you’re able to do so and that’s largely thanks to these landmark judgments passed in the late 1960s and early 1970s.

But 40-odd years on, abortion remains in the Crimes Act in New South Wales and Queensland. As former president of the NSW Legislative Council Meredith Burgmann puts it, "this isn’t fantastic at the legal level but it works at the practical level". This is usually but not always the case. In 2010 a young Queensland couple faced jail for procuring an illegal abortion using the drug RU486.

In other states and territories abortion is legal — although in some jurisdictions "maternal health" requirements and other caveats apply. (See this fact sheet from Children by Choice for a state-by-state summary of the law.)

Long term campaigner for women’s rights Eva Cox says she didn’t expect the law to remain so "messy and muddled" and for women in NSW and Queensland still to be relying on precedent, rather than statutes, for access to abortion.

Cox says she wouldn’t advise reproductive rights advocates to campaign for more certain abortion laws in NSW at this juncture. There’s a risk, she argues, that women’s access to abortion could be restricted — and a de facto regime is better than nothing. According to Cox, "The chances of getting something through better than what we have are slim." 

Burgmann, who served as a NSW Labor MLC from 1991 to 2007, says she would support any effort to legalise abortion in NSW that was likely to succeed, but that campaigners couldn’t bank on success. "Just saying, ‘Oh, it shouldn’t be in the Crimes Act, we should get rid of it’ can be quite damaging," she says.

"A few times in Parliament in the 1990s we thought the time is now right to get abortion off the Crimes Act. Ann Symonds and I did a straw poll in the upper house and lower house to see if it would get through. We thought it would get through upper house but not the lower house. Even some progressive MPs in the lower house thought they wouldn’t get it past their constituents."

"We did it twice, in about ’93 and again in the late 90s and each time we decided it was too dangerous. The experience in the other states, as in WA, was that they got amendments tagged on pieces of reforming legislation that made it harder for women to access abortion. Provisions for counseling and informing parents make the practical application of the law worse."

What’s more, the consequences of an unsuccessful reform campaign could be disastrous. "What if it gets voted down by the Parliament? What are the conservative elements in the police force going to do if they know the state parliament has voted to keep abortion on the Crimes Act?," asks Burgmann.

Burgmann’s concern that the victories won in the Menhennit and Levine cases could be eroded is supported by the experience of the United States, which has in recent decades seen an assault on Roe v Wade. In many states, women face serious obstacles to obtaining abortions. This is both due to aggressive campaigning by the anti-abortion movement and by the restrictive conditions imposed by state and federal legislatures. (See this overview of restrictions put together by the Center for Reproductive Rights.)

Deborah Bateson is the medical director of Family Planning NSW. She has worked with Family Planning for 14 years and is closely involved in the provision of information and care for women who present with unintended pregnancies.

"For me, the key is to ensure that women can access safe abortion and that their options aren’t limited by financial considerations and where they live." She regularly addresses healthcare professionals and says that she gets the impression that "people think abortion is sorted out. They are unaware that it’s in the Crimes Act and that it’s not a decision made by a woman and her doctor."

At all times, she says, "the bottom line is to ensure that women have safe access to abortion".  Still, Bateson argues that healthcare providers and their patients should feel protected. While abortion is on the Crimes Act, they are vulnerable.

"I think it’s reasonable to say that law in NSW is out of step with current public opinion," observes Bateson. "I do think it’s important that the law is in step with community attitudes. We must never stop examining where we are at with the law and use it as a force for good," she says.

A study published in 2010 in the Medical Journal of Australia took stock of community attitudes to abortion. 87 per cent of respondents indicated that abortion should be lawful in the first trimester (61 per cent unconditionally and 26 per cent depending on the circumstances).   

The legal status of abortion in NSW and Queensland may be stagnant, but the Pharmaceutical Benefits Scheme (PBS) Advisory Committee is currently considering an application lodged by Marie Stopes International to list RU486 and Misostopol on the PBS. Taken together these drugs can facilitate a non-surgical termination of a pregnancy. They were approved for import into Australia by the Therapeutic Goods Administration last year. Without PBS listing, the drugs cost up to $300 combined; if listed, the drugs could be priced at $5.90 each.

While they are circumspect about the prospect for successful law reform in NSW, Burgmann and Cox agree that it is worth reflecting on the progress in reproductive rights since Roe v Wade.

Australian women might have had access to legal abortion by the time the US Supreme Court made up its mind, but Roe v Wade "gave everybody an enormous boost", says Cox. Cox wasn’t deeply involved in the campaign for abortion but recalls the excitement at the time that "the idea of fertility control was becoming a reality. It was a cause for considerable optimism".

Similarly, Burgmann describes the Levine decision as "incredibly important". "The whole way in which women got terminations changed."

"It was really important", she insists. "These rulings gave us 40 years of safe and affordable abortion. Before that you had to take your life into your hands."

Launched in 2004, New Matilda is one of Australia's oldest online independent publications. It's focus is on investigative journalism and analysis, with occasional smart arsery thrown in for reasons of sanity. New Matilda is owned and edited by Walkley Award and Human Rights Award winning journalist Chris Graham.