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Still keeping women out: a short history of Australian abortion law

Women all over the Western world, such as these protestors in Paris in1972, have had to fight for abortion rights. Marina Urquidi

Tuesday marked the 40th anniversary of the US Supreme Court decision in Roe v Wade (410 U.S. 113 (1973)), which found that Texas State law prohibiting abortion was unconstitutional. The landmark decision continues to be celebrated globally and is seen by many as ushering in a new era of abortion law reform although reform in Australia started on a similar model in the 1960s.

But victory in Roe v Wade has proved a mixed blessing and, in some respects, its continuing influence has helped entrench a second-best approach to women’s autonomy.

Australian abortion law has largely followed the logic of “medicalisation” of abortion in Roe v Wade. In Australia this legal approach means that, contrary to second-wave feminist demands, only doctors – not nurses or midwives – are legally authorised to perform surgical abortion procedures.

Roe v Wade

One immediate effect of Roe v Wade was to override all state laws prohibiting abortion performed by doctors, at least until the point of presumed viability of the foetus. The second effect was to entrench medical authority over abortion governance and procedure.

The case marked the culmination of a decade of feminist and medical campaigns to secure abortion rights in the United States.

While feminists as diverse as New York’s Redstockings and the National Organisation for Women demanded the repeal of all abortion laws, from 1970 the American Medical Association and the American Civil Liberties Union transformed the focus of mainstream campaigns from repeal to reform.

This sidelined the most radical and materialist claims of the women’s movement – that abortion was a political claim essential for all women’s autonomy and full human rights – and set the medically-focused parameters for the judgement in Roe v Wade.

In Australia

The lack of a bill of rights or similar constitutional instrument in Australia means there’s been no high court finding on abortion here. Instead, campaigners have targeted state and territory legislatures – to varying degrees of success. But here too, the medicalisation of abortion has prevailed.

Historically, the colonies that constituted pre-Federation Australia prohibited abortion based on laws replicating 19th century British criminal prohibitions. These had always allowed the exception of “therapeutic” abortions performed by doctors to save the woman’s life.

In 1938, the English case of Bourne (King v Bourne [1939] 1 KB 687) clarified the criminal defence of abortions performed by doctors to save a woman’s life, broadly interpreted to include psychological factors. The judgement confirmed the authority of the medical establishment over abortion and was understood as persuasive authority in Australian jurisdictions.

Still, the legal and clinical situation remained undesirable and was thoroughly exploited by corrupt police and practitioners capitalising on the perceived lack of legal clarity. And the focus on “psychological health” led many women to seek patronising psychiatric assessments declaring them unstable or unfit to mother.

Inspired by reform in the United Kingdom, in 1969 the South Australian Liberal government reformed state law to clarify, once and for all, the legal protection afforded to “legally qualified medical practitioners” operating to preserve a “woman’s life or her mental or physical health (actual or reasonably foreseeable)”, or in cases of foetal abnormality.

Soon after (in response to corruption scandals on the east coast), Judge Menhennitt in Victoria (1969) and Judge Levine in New South Wales (1972) passed judgements in the lower courts clarifying legal protection of doctors operating in regard to a woman’s physical and psychological health. In New South Wales, this included the consideration of her foreseeable economic situation.

Steps forward

From the 1970s, feminists such as the Women’s Abortion Action Campaign in New South Wales lobbied for the repeal of all abortion laws, and “abortion at no cost, with no legal restrictions, no quotas in public hospitals, lots of good clinics run by women, plenty of information about abortion, contraception and sexuality, no guilt trips and no discrimination against young, black or migrant women.”

But the medicalisation of abortion governance was well and truly consolidated in Australia by this time. Indeed, since the South Australian reforms, all abortion reforms passed in Australian legislatures have consolidated medical control of the procedure.

In 2008, the Victorian parliament passed the Abortion Law Reform Act to clarify the legal conditions for abortion, on the advice of the Victorian Law Reform Commission. The Act removes the need for doctors to provide medical or psychological justifications for abortion, stating simply that a “registered medical practitioner may perform an abortion on a woman who is not more than 24 weeks pregnant.”

For procedures performed after this point, justifications made in concert with a second doctor are required.

The Victorian Act is widely recognised as both a medical and feminist success. It’s been a long time since women’s liberation framed the tenor of mainstream feminist abortion demands. But it’s still important to consider the impact of the medicalisation of abortion.

Medicalised abortion

Australia is potentially facing a crisis in abortion provision, with services dependent on the commitment of a handful of doctors performing procedures mostly in the private sector in each state and territory. And the general doctors’ shortage is keenly felt in the reproductive health sector.

Last year, the historic Croydon Clinic, which was taken over by Marie Stopes International, announced that due to changes in its medical practice, it would no longer perform abortions after 24 weeks, leaving Australian women without access to this service in the private sector.

One solution to the doctors’ shortage could be to allow nurse practitioners to perform surgical abortions which, despite the TGA’s authorisation of RU486, remain common in Australian practice.

In the United States, the Roe v Wade judgement authorises “physicians” to perform abortions, which in some states has been interpreted to include nurse practitioners, depending on local laws. A recent six-year University of California study of patient outcomes in America found that first trimester abortions are “just as safe when performed by trained nurse practitioners, physician assistants and certified nurse midwives as when conducted by physicians.”

But in Australia, entrenched medicalisation has meant that local laws such as the Victorian Act preclude anyone other than a registered medical practitioner performing surgical abortions. The radical demands of the 1970s for “lots of good clinics run by women” appear highly prescient in this light.

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