Abortion rights is still an issue

August 10, 2013

The United States has led the world in deregulation of the financial sector, the economy and social services on the basis of “the market rules”.

This facilitated the great financial crisis from 2007 onwards with devastating impacts on the welfare of the majority of citizens globally. Yet when it comes to US women’s right to control their own fertility, just the reverse has taken place.

Increasing regulation has become the norm undermining the reality of individual choice.

In 1973, the US Supreme Court decision known as Roe v Wade ruled on the legality of abortion nationally up to 22 to 24 weeks, based on a doctor’s determination of viability of a baby outside the womb.

Yet 40 years on, the Texas Senate made international news in July when a successful 11 hour filibuster had to be held to prevent a bill being passed in the lower house which would dramatically limit abortion access and provision in that state.

This is not unusual in the US states where abortion access is getting worse every year. So how has this come to pass?

As soon as it was legalised, the attacks on abortion access began. The Hyde amendment in 1976 ruled that federal funding could not be used to assist abortion, a move which disproportionally affected poorer women.

This left funding up to the states with provisions under the Social Security Act in 1965 to provide Medicaid — a means-tested health and medical services program for low income individuals and families run federally,, but administered by each state to establish eligibility criteria; the type, amount, duration and scope of services; and the rate of payment for services.

Federal matching funding applied to specified services only. Now Medicaid is only available for abortion services in about 35 states for instances of rape, incest or to protect the life of the mother.

A further setback took place in 1992 when the Supreme Court passed the Casey ruling which allowed states to regulate abortion as long as they do not write laws that impose an “undue burden” on women.

Since then there has been an explosion in state imposed regulation, made possible by the electoral success at state, federal and local levels of Republican conservatives aligned with the Tea Party faction.

In 2011, 92 abortion restrictions became law in 24 states — nearly tripling the previous 2005 record of 34.

Last year, another 43 restrictions were passed in 14 states and so far this year some 29 pieces of legislation, which include 72 specific restrictions, have been passed in 22 states.

These restrictions typically include counselling on the foetus’s capacity to feel pain, mandatory ultrasound, a specified waiting period before an abortion can take place and parental notification for minors.

Since 2010, these have broadened to include bans based on gender selection and foetal abnormality, bans on public funding, bans on the use of telemedicine and reductions of the time cut-offs for abortion access.

One major feature of these attacks by conservatives is to impose the viewpoint that life, or personhood, begins at the point of conception when sperm penetrates ovum, not at birth.

While some of these measures are being challenged legally, most are already in practice and planning is underway to be able to effectively challenge Roe v Wade in the near future.

If this is successful then some states would criminalise all abortions regardless of the cause of the pregnancy and the woman’s wishes.

Clinics under attack

The big increase is in restrictions on abortion providers, which are typically clinics and not hospitals as was the case in 1973.

The number of abortion providers has been reduced from 2908 in 1982 to 1793 in 2008 when the last survey took place. These restrictions include tightening building and zoning regulations and regulations to impede the use of doctors not resident in the state.

Many of these appear as administrative health and safety issues rather than anti-abortion attacks, so it is hard to mobilise a fight against them.

The very success of the anti-abortion forces has further undermined the availability of doctors willing to provide abortion. Success in one state has led to a rapid spread of a similar piece of legislation in other states.

In fact there are four states with only one surgical abortion clinic so women have to travel quite large distances several times in order to have access.

It is estimated that access has effectively been banned in 15 states.

The Australian experience

So what relevance does the US experience have in Australia? Abortion is accessed under state law and is contained in the criminal code in all states except the ACT where it is legal.

In Western Australia, South Australia, Tasmania and Northern Territory the criminal code sets out when an abortion is not lawful and when and how it can be lawfully obtained.

In NSW and Queensland abortion is a crime for both women and doctors but common law interpretations of the criminal codes have effectively made lawful abortion available.

There is a wide variation in time of 14 to 24 weeks and appropriate provision of medical approval between states as well as mandatory counselling in Tasmania at present.

Most access is provided through clinics with some hospital provision available in most states.

Clinic access has allowed the organised harassment of clinic staff and women seeking abortion in the US as well as firebombing of clinics and the murder of doctors providing abortion. The Australian experience has been more moderate. Picketing and harassment is typical and there has been one case of murder of a clinic security guard in Melbourne.

In Australia personhood is defined as viability after birth and this has been constantly under attack by the Right to Life, major conservative religions and the Christian lobby.

Parliamentarians elected to upper houses on a religious foundation such as the Christian Democratic Party’s Fred Nile in NSW have introduced a constant stream of private members’ bills to try to mimic the US restrictions.

The latest is Zoe’s law — named after a child who was stillborn due to injuries her mother suffered after being hit by a car — which would allow people to be charged with the criminal offence of manslaughter if they cause a pregnant woman to lose her unborn foetus.

Nile has thrown in the sweetener that the law if passed would exclude abortion but there is no guarantee that such a law would not open the way for anti-abortion amendment in the future.

In fact Nile is opportunistically using this tragic accident to introduce legislation passed in 13 states in the US which exclude abortion because of the Roe v Wade law.

At present NSW law defines harm against a foetus as an aggravated assault against the mother.

In South Australia, Senator John Madden from the Democratic Labor Party has picked up on a further popular US restriction of gender-based abortion in his attempt to remove these from Medicare funding.

Regardless of the lack of evidence that such abortions are taking place in Australia this can only be an attempt to confuse and weaken the personhood definition and undermine abortion availability.

Whether either of these private members’ bills gets adopted is unlikely given there appears little movement through the state upper house and Senate. In the case of Zoe’s law the mother has openly attacked the Nile legislation as the intrusion of religion and opposed its implications on the right to abortion.

On a more positive note an abortion law reform bill was passed by the Tasmanian lower house in April, and is awaiting debate by the state's upper house. If passed it decriminalise abortion on request to 16 weeks gestation, and after that point if two doctors approve.

The state upper house has been bombarded with the usual misinformation and myths about abortion by the conservative anti-choice lobby, but has resisted a quick decision and has sought time to consider the information and evidence provided by pro-choice activists.

The most potentially positive step in guaranteeing access has been the inclusion of the abortion drug RU-486 (mifepristone) and its accompanying drug, misoprostol, on the federally subsidised Pharmaceutical Benefits Scheme (PBS) in July this year.

Both drugs are involved in medical abortion and their cost would be reduced from around $350-$400 for medical abortions with Medicare cards to about $14 for concession card holders and less than $70 dollars for general patients under a prescription from trained and accredited local doctors

This would be a huge benefit for poorer women as well as a benefit of accessible service through your local GP.

It would also be a major defeat for the anti-choice forces who could no longer harass women seeking abortion at clinics and hospitals since it would diffuse access to the interpersonal health discussion between a woman and her doctor.

Perhaps this is what underlies the Abbott promise not to attack abortion — just get this item taken off the PBS.

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