In the majority of the states and territories, abortion remains in the criminal code, the exceptions being Victoria, the ACT and Tasmania. The current political mood indicates that this situation probably won't improve any time soon. It is more likely that the relative peace Australia has seen on abortion politics since the 1970s is over for now.
The landscape of reproductive politics seems to be changing in Australia, with anti-choice shots fired in NSW, Victoria, the Northern Territory, South Australia and Tasmania in recent months. Federally, Senator Madigan has threatened to hold the current government hostage over abortion.
In NSW the shift has happened suddenly, with the introduction of Zoe's Law, the foetal personhood bill currently before the NSW parliament. Zoe's Law aims to make it a crime to harm a foetus, specifically and beyond any harm to the mother. Abortion remains a crime in NSW.
Feminists, including myself, have opposed the bill because foetal personhood is anti-choice. It puts the (proposed) rights of the foetus into potential conflict with the rights of a mother. In the United States, this tactic has been used to side-swipe abortion rights. Both the Australian Medical Association (AMA) and the NSW Bar Association agree that it is a dangerous bill for both pregnant women and their doctors.
The Reverend Fred Nile, MLC, who typically has a number of anti-choice pieces of legislation before the parliament at any one time, originally sponsored the bill. However, it received more mainstream support, passing the lower house by 63 votes to 26. Premier Barry O’Farrell, generally regarded as a moderate on social issues, was one of those who voted for it.
Much of this debate is about whether a woman could potentially be criminally charged for harming her own foetus, or a doctor could be charged for performing an abortion. Medical and legal professionals have stated that the law is risky at best, and just as importantly, unnecessary legislation.
Since 2005, the definition of Grievous Bodily Harm has included “the destruction (other than in the course of a medical procedure) of the foetus of a pregnant woman, whether or not the woman suffers any other harm.” This is known as Byron’s Law.
In 2010 the law was subject to parliamentary review by Michael Campbell QC, and his report found that the current law “appropriately reflects the seriousness of the offence and, most importantly, differentiates between abortions and criminal acts by third parties resulting in fetal death.”
The members of parliament who passed the Zoe's Law bill in the lower house appear to have been reassured by a late amendment from Liberal lower house member Mark Speakman of Cronulla. The Speakman amendment attempts to specifically exclude abortion from the bill by including wording to the effect that it could only apply to criminal acts.
Unfortunately, abortion is still covered in the Crimes Act, making the Speakman amendment a feel-good exercise at best.
Are these just the demented bleatings of a fringe-dwelling religious right? Yes and no. While Australia is overwhelmingly pro-choice, the attack in Victoria came from Liberal MP Bernie Finn. In the NT, the Attorney General has proposed laws that criminalise pregnant women who drink alcohol. In NSW, a female Liberal member is sponsoring Zoe’s Law in the upper house. 'Zoe' was the unborn daughter of NSW woman Brodie Donegan, who was struck by a drug-affected driver in 2009. When Zoe died in utero, the driver who caused her death was charged with injury to her mother.
In South Australia, the Labor government defeated an amendment similar to that proposed in NSW, known as the Brokenshire Bill, by only one vote. A group including Liberals, a Nick Xenophon group member, and Family First members voted for the bill.
But in NSW Labor were split – eight Labor members voted for Zoe's Law, resulting in the expanded majority by which it was passed in the Legislative Chamber. The remaining 12 Labor members, including the Opposition Leader John Robertson, voted against the bill.
Federally, Prime Minister Abbott’s views on reproductive rights have been well documented. Perhaps less well known is Senator John Madigan, hailing from a party most in Australia thought was extinct, the right-wing Catholic Democratic Labor Party.
Madigan describes himself as “unashamedly pro-life” and in February last year he claimed that it was likely Australians were seeking gender-selective abortions because he had seen ''data that abortion on the basis of gender selection is happening overseas”. On this basis he introduced a failed bill to ban an unproven practice, mirroring a tactic used by successful anti-choice campaigners in the United States.
Post-July, when a grab bag of right-wing Senators holds the balance of power, these tactics could be successful, and pose a real problem, especially when combined with the current government.
Suffice to say that the consensus on women’s reproductive rights, if it ever existed, is under threat in Australia right now. It’s time to put on your armour and grab your weapon of choice.