By Kani Balamurugan
What does the overturn of Roe v Wade mean for Australia and what needs to be implemented nationwide to expand access to compassionate abortion care?
Image: Stephanie Keith/Bloomberg
[Trigger warning: this article mentions rape, incest and family violence]
In Ohio, a ten-year-old girl was denied the right to an abortion after being raped. This was a consequence of the recent ban that made no exceptions for rape or incest. The only way this child could receive life-saving health care was to leave her home and cross state lines to Indiana where abortions remained legal. As similar stories are shared and disturbing hypotheticals became reality, this culminates into one sentiment: ‘Abortion is healthcare. Healthcare is a human right.’
Contextualising the issue
Earlier this year, the American Supreme Court case Dobbs v Jackson (2022) overturned the landmark case Roe v Wade (1973) which had previously enshrined abortion as a constitutional right. For 49 years, Roe v Wade had federally protected an individual’s right to the safe termination of pregnancy until fetal viability. It returned reproductive autonomy to each individual and celebrated reproductive freedom. With its recent overturn, every state now has the individual discretion to ban or restrict abortion. In fact, abortion rights are now estimated to be highly restricted or threatened in 60% of American states. Trigger laws in states like Idaho, Kentucky and Louisiana took immediate effect to ban abortion following the overturn; whereas abortion remains legal in states like New York, Illinois and California.
Examining the issue through an Australian lens
The overturning of Roe v Wade has functioned as the impetus for global discourse surrounding reproductive rights. As of 2021, all Australian states and territories have decriminalised abortion. However, in certain circumstances, Western Australia considers abortion a crime under section 199 of the Criminal Code Act Compilation Act (WA). Nationwide safe access zones around abortion clinics have also been enforced. Although Australian legislation, policy and society uphold the right to abortion, the lack of open discussion about this matter further stigmatises abortion care. This is exemplified by the National Women’s Health Strategy (2020-2030) which indicates a commitment to attaining universal and cost-effective access to abortion by 2030. However, not once are the words ‘abortion’ or ‘reproductive rights’ used in this document.
In addition, the right to abortion in Australia is governed by each state's health legislation, which contributes to inconsistencies in abortion care. For instance, Queensland is the only state which does not criminalise abortion providers like nurses, midwives and Aboriginal and Torres Strait Islander workers. Additionally, South Australia and Western Australia mandate pre-abortion counselling, which can act as a barrier to timely access. Due to the vast differences across the nation, access to abortion has been described as a 'postcode lottery'. Namely, there is no uniform medico-legal infrastructure that stipulates restrictions on abortion based on gestation, the requirement of pre-abortion medical approval, criminalisation of abortion providers, mandated counselling, funding and treatment expenses.
As abortion is currently not considered routine healthcare in Australia, it can have serious implications for marginalised, disenfranchised and oppressed groups, including:
Aboriginal and Torres Strait Islander people
People of colour
Young people
LGBTQ+ individuals
Rural and regional communities
People with disabilities
Families experiencing domestic violence or coercive control
These communities are already required to overcome barriers to access basic healthcare. Restrictions to abortion care will only further disproportionately impact vulnerable Australians. Even if our rights currently appear infallible, the alarming political discourse in America jeopardises abortion care on a state-by-state basis, prevents expansion of access, and harms at-risk communities.
Collateral implications on human rights
The right to abortion in America is interwoven into the very ‘same constitutional fabric’ as several other human rights that endeavour to protect ‘bodily integrity, familial relationships, and procreation’. As such, the overturn of Roe v Wade undermines other interrelated judicial precedents.
Exacerbating these concerns, conservative Justice Clarence Thomas prompted the Supreme Court to reconsider all of their substantive due process precedents which strive to prevent the government from infringing upon fundamental rights. This would endanger the following rights that are provided in the Fourteenth Amendment:
Right to sexual privacy, established in Griswold v Connecticut (1965)
Right to access contraception, established in Griswold v Connecticut (1965)
Right to LGBTQ+ sexual intimacy, established in Lawrence v Texas (2003)
Right to LGBTQ+ marriage, established in Obergefell v Hodges (2015)
Here in Australia, this serves as a reminder that we cannot take our rights for granted. An attack on abortion care in America threatens human rights everywhere. Therefore, we must be strong advocates for reproductive justice and continue to uphold these freedoms for marginalised and disenfranchised communities. If it was ambiguous before, it is now abundantly evident that the right to abortion is not a gendered issue. Instead, it is a multi-faceted human rights issue that we are all involved in.
Proposed solutions
“There is no other area of healthcare that has been so stigmatised, marginalised and judged by policy makers and clinicians alike”
- Dr Catriona Melville (Australian and New Zealand Journal of Obstetrics and Gynaecology)
Essentially, stigmatising abortion exerts control over bodies, reinforces health inequities and bolsters the barriers to accessing essential healthcare. Its methodical destigmatisation requires dismantling oppressive power structures that drive systemic inequalities, such as race, gender, sexuality, ability and class. In Australia, reproductive freedom can be protected by:
Reforming law and policy to redistribute decision-making power to the most affected groups as outlined above
Empowering the healthcare system to establish abortion as an accessible and routine healthcare service and conferring legal protection to all abortion providers
Deficiencies of Australia's current legislative landscape that must be addressed include the over-regulation of the right to abortion and inconsistencies between state legislations. These perpetuate the stigma of abortion and further complicate access in Australia. As such, extensive law reform is required to amend current legislation and implement a national legislative scheme which expands access to abortion services and protects abortion providers.
However, legislation alone cannot support accessible, free, safe and compassionate abortion care. Politicians should vocalise their commitment to integrating abortion care and capacity-building programs for clinicians into Australian healthcare systems. In parallel, national health strategies should transparently establish metrics, outline steps and monitor the progress of their commitment. In preserving this fundamental aspect of justice, Australia still has a long way to go compared to the reproductive autonomy afforded in countries like the United Kingdom and the Netherlands. For instance, there is no mandated counselling or pre-abortion waiting period in the United Kingdom. Likewise, abortions are free of charge for Dutch residents, irrespective of whether it is performed at an abortion clinic or a licensed hospital.
The stories we hear about the inequities surrounding access to abortion should not be exploited as political pawns. Instead, they are an opportunity for Australia to introspect on how we as a society can continue to defend vulnerable communities while reconciling where abortion care fits into this landscape that intersects healthcare and human rights.
References
A Articles/ Reports
Center for Reproductive Rights, European Abortion Laws: A comparative Overview (Fact Sheet Report, 2022)
Department of Health, National Women's Health Strategy 2020-2030 (Strategy Report, 2018)
Melville, Catriona, 'Abortion care in Australasia: A matter of health, not politics of religion' (2022) 62(2) Australian and New Zealand Journal of Obstetrics and Gynaecology, 187, 189
B Cases
Dobbs v Jackson, 597 US (2022)
Griswold v Connecticut, 381 US 479 (1965)
Lawrence v Texas, 539 US 558 (2003)
Obergefell v Hodges, 576 US 644 (2015)
Roe v Wade, 410 US 113 (1973)
C Legislation
Criminal Code Act Compilation Act 1913 (WA)
D Newspaper articles
Barragán, James, 'In Roe decision, Justice Clarence Thomas invites new legal challenges to contraception and same-sex marriage rights' <https://www.texastribune.org/2022/06/24/roe-wade-clarence-thomas-contraception-same-sex-marriage/>
Butler, Peter and Dan Avery, 'Abortion Laws in All 50 States: The Latest Legislation and Court Rulings', CNET (online, 12 October 2022) <https://www.cnet.com/health/abortion-laws-in-every-state-where-is-abortion-legal/>
Kessler, Glenn, 'A one-source story about a 10-year-old and an abortion goes viral' The Washington Post (Online, 13 July 2022) <https://www.washingtonpost.com/politics/2022/07/09/one-source-story-about-10-year-old-an-abortion-goes-viral/>
Maiden, Samantha, 'Postcode lottery: Women's access to abortion in Australia under fire' news.com.au (Online, 28 June 2022) <https://www.news.com.au/lifestyle/health/postcode-lottery-womens-access-to-abortion-in-australia-under-fire/news-story/61f2bb5fd7eed2a69cb257f4e2da0f5b>
Matthews, Sue, 'Politicians must commit to upholding abortion rights' Women's Agenda (Online, 11 May 2022) <https://www.thewomens.org.au/news/our-politcians-must-commit-to-upholding-abortion-rights>
Mazza, Danielle, 'Women's Health Week: Breaking down the barriers to abortion access in Australia' Medicine and Health Lens (Online, 7 September 2022) <https://lens.monash.edu/@medicine-health/2022/09/06/1385061/womens-health-week-breaking-down-the-barriers-to-abortion-access-in-australia>
MSI Australia, MIS Australia calls for a national approach to increase access to abortion care (Blog post, 22 July 2022) <https://www.mariestopes.org.au/your-choices/msi-australia-calls-for-a-national-approach-to-increase-access-to-abortion-care/>
Priestley, Angela, 'Call for vigilance as Australia's own force birthers invigorated by US decision' Women's Agenda (Online, 27 June 2022) <https://womensagenda.com.au/latest/call-for-vigilance-as-australias-own-forced-birthers-invigorated-by-us-decision/>
Ratcliffe, Sarah, The U.S is fighting for reproductive rights - what does that mean for Australia (Blog Post, 7 July 2022) <https://www.vwt.org.au/the-u-s-is-fighting-for-reproductive-rights-what-does-that-mean-for-australia/>
Witherspoon, Andrew et al., 'Tracking where abortion laws stand in every state' The Guardian (Online, 28 June 2022) <https://www.theguardian.com/us-news/ng-interactive/2022/jun/28/tracking-where-abortion-laws-stand-in-every-state>
E Other
abortionstigmaresearch, 'What does the challenging of overturning of Roe vs Wade mean for abortion in Australia' (Instagram, 8 May 2022 AEST) <https://www.instagram.com/p/CdSlKH8vNRa/?fbclid>
Government of the Netherlands, I am thinking about getting an abortion. What should I do? (Webpage) <https://www.government.nl/topics/abortion/question-and-answer/i-am-thinking-about-getting-an-abortion-what-should-i-do>
MSI Australia, Australian Abortion Access Scorecard (Webpage, 26 August 2022)
Kani Balamurugan is a fourth-year Laws (Hons)/Biomedical Science student. She is passionate about the intersection between health equity and law reform. Kani is looking forward to her internship at The Royal Melbourne Hospital, where she will have the opportunity to provide recommendations that improve patient access to specialist care from RMH’s metro and rural/regional referrals. She intends to continue advocating for social justice in the medical space.