It is well past time for legislative change when it comes to abortion rights. If women are not to live with the fear of repressive and discriminatory legislation governing the choices they make over their bodies, immediate progressive reform is essential, writes Carmen Espinosa.
Last December, more than 30 human rights and healthcare organisers co-authored an open letter to the NSW government describing the state’s abortion law as “archaic, cruel, and degrading” and denying women “the right to make decisions about her own healthcare.”
With the issue of abortion currently being voted on in state parliament, NSW has the chance to no longer remain the outlier within Australia when it comes to the criminalisation of abortion.
The case for legal reform is simple: we cannot legislate the present according to the values of the past. Abortion has been in the NSW Crimes Act since it was first legislated in 1900 and has been neither amended nor struck down in the subsequent 119 years.
The NSW Crimes Act 1900 and specific legislation surrounding abortion were inherited, almost in full, from Britain. British laws such as the Offences Against the Person Act 1861, which criminalised abortion and made it an offence for a woman to procure a miscarriage, reflected the prevailing moral and social standards of the time. They became the basis for NSW’s legislation.
The NSW Crimes Act 1900 defined attempts to procure or carry out an abortion as illegal under sections 82-84. The law, reflecting colonial standards of late 19th and early 20th century Australian colonialism, criminalised women who sought to “administer drugs” to themselves or to “the woman with intent”. Woman found to have attempted to procure an abortion faced 10 years’ imprisonment.
In the 120 years since the Crimes Act was enacted, views on morality and culture have not remained stagnant, nor has the philosophical debate of what constitutes a human life.
In 1961, the first oral contraceptive pill was made available in Australia. Though initially limited in its distribution, it was an important victory for women, giving them the freedom to avoid unwanted pregnancies and plan parenthood.
The pill became a forerunner of increased social mobility and visibility for women. Furthermore, it became the basis for ongoing social change that included legislation around equal pay for equal work and freedom from discrimination.
But, as then-NSW Greens MLC Mehreen Faruqi told state parliament in 2016: “The ongoing criminalisation of abortion restricts the availability of access, and stigmatises and shames those who require termination services.” Three years later, her words resonate profoundly across the state.
Continuing to treat abortion as a criminal, rather than medical issue is a throw-back to a bygone era of ethics and morality.
Common law interpretations of the NSW Crimes Act led to regulated abortion access in case where there was a serious danger to a woman’s life or physical or mental health.
A landmark precedent was set in 1971 through the R v Wald legal dispute. The case concerned the trial of five people — a surgeon, an anaesthetist, an orderly, the person who referred the patients and the owner of the premises — who had been charged with unlawfully using an instrument with intent to procure an abortion.
The case gave the court an opportunity to rule on what exactly could constitute a lawful abortion. Importantly, the ruling expanded the, until then, accepted definition of what constituted a serious threat to the health of the woman to include social and economic factors. Under this new definition, the accused were subsequently acquitted.
Almost 20 years after R v Wald, a second court case had far reaching effects on the law governing abortion in NSW. The 1995 CES v Superclinics (Australia) case saw a plaintiff pursue a civil case for the loss of opportunity to terminate a pregnancy due to the repeated failure of a number of doctors to diagnose a pregnancy.
While the case was thrown out in the initial hearings, it was appealed in the Supreme Court, where it was upheld. In doing so, the Supreme Court set another precedent that extended the period of time wherein the health concerns of the mother could be considered a viable option for termination to after the birth of the child.
Throughout the trial, pro-choice activists continued to call for abortion law reform, protesting outside the courts on several occasions. Such activism attested to the widespread public interest in abortion as both a moral and medical concern.
The understanding that abortion is a feminist issue has been largely shared by activist networks. Writing in The Australian Quarterly in 1982, John Warhurst and Vince Merrill suggest that the “highly coherent, well thought out campaigns” of the late 1960’s and 1970’s converted abortion into a social right.
Following the first legal challenges to the criminalisation of abortion in the early 1970s, it was throughout the late 1980s that social movements began to grow and protest. They gained substantial impetus from the sexual revolution of the 1960s, together with the push for progressive social change.
Shifting attitudes have demonstrated a clear liberalising trend since the late 1990s, with a majority of Australians today supporting abortion rights. In September 2015, the NSW Greens commissioned Lonergan Research to survey views on abortion. The findings showed 73% of respondents agreed “that abortion should be decriminalised and regulated within the health service”.
Within Australia, the right to terminate a pregnancy has become synonymous with a woman’s right to control her own body. Historically, reproductive reform and access has also typically been associated with other women’s liberation causes, including the right to work, equal pay and suffrage.
However, a more profound conclusion can also be drawn. Abortion reform is about a women’s fundamental right to make her own decision about her sexuality and physicality, without moralistic and punitive intervention.
As Karen Coleman put in an 1988 Feminist Review article, the right to terminate is inherently “about a women’s dignity and, in a male-dominated society” this dignity must be fought for.