The right to terminate a pregnancy has been categorised as falling within a number of existing human rights norms, such as the right to health and the right to autonomy. Abortion cannot be a right if it is a crime; it is absurd for Australia to regard itself as a rights-respecting society while at the same time criminalising a woman’s right to choose to terminate a pregnancy.
On 21 November, Tasmania became the third Australian jurisdiction (after the ACT and Victoria) to decriminalise abortion. Given the controversial and emotive nature of the subject matter, the passage of the legislation was long and difficult. Ultimately, it represents a compromise position that, while far from perfect, is a significant leap forward and a victory for Tasmanian women who may now access abortion services without the threat of the criminal law hanging over their heads.
The new Tasmanian law removes the crime of abortion from the Criminal Code Act 1924 and introduces a new framework that regulates abortion as a health issue rather than a matter for the criminal law. This is significant for a number of reasons.
As long as abortion remains criminal, a woman's right to access it remains uncertain. In all Australian jurisdictions where abortion is a crime, it is subject to a number of exceptions, but their application is unclear. Both women and doctors are uncertain as to the precise circumstances in which abortion is legal, and conversely, the precise circumstances in which they face the risk of prosecution. Consequently, the lack of legal clarity negatively correlates with the accessibility of abortion services.
Criminalisation also contributes to the ongoing stigmatisation of abortion. The insistence that abortion should be treated differently to other health services, rather than regulating it within the health law paradigm, is judgmental and frames it as deviant.
The Tasmanian legislation allows “abortion on request” up to 16 weeks gestation. After 16 weeks gestation, a pregnancy may be terminated if two medical practitioners agree “that the continuation of the pregnancy would involve greater risk of injury to the physical or mental health of the pregnant woman than if the pregnancy were terminated”. In making this determination, the legislation enables doctors to take account of “physical, psychological, economic and social circumstances”.
The broad framing of this provision, which explicitly includes economic and social factors as falling within the parameters of what doctors may consider when determining whether to authorise an abortion, is a welcome development. In addition, the law imposes a duty to terminate a pregnancy where necessary to save the life of a pregnant woman, hopefully preventing deaths such as that of Savita Halappanavar in Ireland in 2012.
The Bill, as passed by the House of Assembly earlier this year, required a medical practitioner with a conscientious objection to refer a patient seeking to terminate a pregnancy to a medical practitioner without such a conscientious objection. This requirement was similar to the conscientious objection section of the Victorian legislation.
In addition, this earlier version of the Bill also imposed an “obligation to refer” on counsellors with a conscientious objection. This unique development does not exist in the Victorian legislation. Unfortunately, debate in the Legislative Council resulted in a significant watering down of the “obligation to refer” sections such that a doctor may now fulfil the referral obligation by providing a woman “with a list of prescribed health services from which the woman may seek advice, information or counselling on the full range of pregnancy options”.
Further, the referral obligation placed on counsellors in the earlier version of the Bill did not find its way to the final version passed by both Houses of Parliament.
A particularly unique component of the Tasmanian legislation concerns the introduction of access zones. This section prevents anti-choice protesters from harassing women within 150 metres of a clinic that provides abortion services. In light of the unnecessary humiliation and distress frequently endured by women whose dignity and privacy is undermined when protestors endeavor to infringe on their reproductive autonomy, the introduction of such access zones is significant.
The Tasmanian legislation represents a negotiated solution. Is it a flawless piece of legislation from a women’s rights perspective? No. Is it a giant leap forward and the continuation of a critical dialogue in the Australian community? Absolutely. Following on from the ACT in 2002 and Victoria in 2008, Tasmania has become the third Australian jurisdiction to decriminalise abortion.
The 16 weeks gestation threshold for “abortion on request” is less than ideal. In Victoria, “abortion on request” is available up to 24 weeks gestation. In Western Australia, despite abortion remaining a part of the criminal law, “abortion on request” is available up to 20 weeks gestation. In the ACT, there is no gestational limit to a woman’s ability to access abortion services without seeking the approval of a medical practitioner.
Nevertheless, in light of a move during debates in the Legislative Council to reduce the gestation threshold for “abortion on request” to 14 weeks, the end result remains positive.
On a related note, the requirement for the authorisation of two medical practitioners for abortion after 16 weeks gestation is also problematic. Empowering doctors, rather than women, to decide whether “the continuation of the pregnancy would involve greater risk of injury to the physical or mental health of the pregnant woman than if the pregnancy were terminated” is a paternalistic denial of women’s dignity and autonomy. It is especially unclear why the authorisation of two medical practitioners is required.
Ironically, on the same day as the Tasmanian Parliament passed a law that signifies progress for women, the NSW Legislative Assembly voted in favour of Zoe’s law, a Bill whose object is to “amend the Crimes Act 1900 to recognise the separate existence of the foetus of a pregnant women that is of at least 20 weeks’ gestation (as a living person)” for the purposes of certain offenses relating the “grievous bodily harm”.
Clearly, while there has been progress we still have much work to do before we can say that Australian law fully respects a woman’s right to health, dignity, privacy, autonomy, equality and freedom from inhuman or degrading treatment.
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