Errol Price, Legal Director at Symmetra Global shares his insight regarding the recent American Abortion Law and how does Australian Abortion Law shape up.
Few, if any, legal issues dealing with personal rights and interests evoke such divergent views or hostile ideological positions as does that of abortion.[1]
It is therefore unsurprising that he decision of the US Supreme Court in Dobbs v Jackson Women’s Health Organisation [2] overturning Roe v.Wade [3] has reverberated across the globe.
The ruling has generated dismay in some quarters and jubilation in others, depending on one’s particular stance in the abortion debate. Since the recent Dobbs ruling was handed down the competing views have become ever more strident. As one American journalist put it: “the debate… has been thrown into an escalating culture war .[4]
Against this backdrop many countries are reviewing the legal and other issues which prevail in their jurisdictions with regard to accessing abortion.
Abortion and Family Planning in International Law
At the outset, it is worth noting that the vast majority of human rights lawyers assert that a woman’s right to full autonomy over her own body as well as the assumption of critical health and reproductive decisions are all features of a core and fundamental human right. [5]
Various international treaties and conventions enshrine principles which pertain to women’s autonomy, physical and mental health and the right to determine reproduction and planning of children.
The most important of these is CEDAW (The Convention for the Elimination of Discrimination Against Women)
The right to health under article 12 of the CEDAW Convention includes the right to bodily autonomy and encompasses women’s and girls’ sexual and reproductive freedom. In addition, article 16 (e) protects women’s rights to decide freely and responsibly on the number and spacing of their children and to have access to the information, education and means to enable them to exercise these rights. A decision have an abortion is an essential component of exercising these rights.
Countries which are parties to CEDAW, and other related conventions should in the ordinary course take steps to incorporate the various protective principles into their domestic legislation. [6]
American Abortion Law since Roe v Wade
Roe’s case did not settle the debate in the USA about abortion and the entrenched views on either side remained firmly in place. No common ground has been found between the two sides and many groups virulently opposed to abortion proclaimed it their mission to have Roe reversed.
The Anti- Abortion Position
The anti-abortion group posits that an embryo from the time of conception or at least at some later time of development in the womb is a human being and therefore, in law, is entitled to enjoy rights of personhood including the right to life. [7]
The State of Texas had indeed argued before the Court in Roe v Wade that a foetus is a person as envisaged by the US Constitution and therefore had a right to life under the fourteenth amendment. This argument was rejected by Justice Harry Blackmun, writing for the majority. The Court in Dobbs declined to express any view on this matter: “Our opinion is not based on any view about if and when prenatal life is entitled to any of the rights enjoyed after birth “wrote Justice Alito. Nevertheless in shifting authority back to the states he noted ‘ … States may wish to impose tight restrictions based on their belief that abortion destroys an unborn human being “
The proposition that a foetus is an unborn human being and enjoys legal personality will become the basic legal plank in the drafting of legislation prohibiting or restricting abortions. Some states have moved to invest legal personality in the foetus by way of legislation. This lays the foundation for abortion to be treated as homicide. [8] The potentially vast number of ramifications of this legal change has been illustrated when in July 2022 a pregnant woman fined for driving in a multiple-occupant lane in Texas contended that she was driving lawfully because she and the foetus were two people. [9]
The Pro-Abortion Position
The Court in Roe v Wade was called upon to consider a restrictive Texas abortion statute. It held that such laws were unconstitutional as they violated a woman’s right to privacy. This right to privacy, though not explicitly mentioned in the Constitution was held to be an implied right in the Due Process Clause of the Fourteenth Amendment to the Constitution.
The reasoning of Blackmun J. in Roe has not met with universal approval from constitutional lawyers.
Most tellingly it was criticised in a now famous article by Prof JH Ely (Yale University) an avowed supporter of abortion shortly after it was handed down [10]
“Roe v. Wade seems like a durable decision. It is, nevertheless, a very bad decision. Not because it will perceptibly weaken the Court–it won’t; and not because it conflicts with either my idea of progress, or what the evidence suggests is society’s–it doesn’t. It is bad because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be.”
Taking a similar line in dissent in Gonzales v. Carhart, a case in which the court upheld a federal restriction on abortion, Justice Ruth Bader Ginsburg ( a formidable supporter of abortion) essentially disavowed the reasoning in Roe, stating: “[L]egal challenges to undue restrictions on abortion procedures do not seek to vindicate some generalized notion of privacy; rather, they centre on a woman’s autonomy to determine her life’s course, and thus to enjoy equal citizenship stature.”
Viewed objectively and in its historical context, the ruling in Roe v Wade was an attempt to come to terms on a national level with socio-political and medical considerations which were pressing in the USA of the 1960s. These included an acceptance by the majority of the populace that women’s health overrode any “rights” of the foetus until the point of viability; and also, that science and medicine and not religion should provide the appropriate benchmarks for decisions on abortion.
Whatever stability that was engendered by Roe has now been upended by Dobbs. The states will be categorised as pro- life or pro-choice. The stage has been set for all manner of protracted lawsuits and hostile exchanges between opposing factions. Supporters of abortion will now put their minds to devising of stratagems to secure abortions for women living in states which deny them that right by legislation.
None of this can be regarded as desirable or conducive to the resolution of differences by political compromise. It creates a minefield for women living in prohibition states, adding the threat of criminal prosecution to the anxieties accompanying an unwanted pregnancy. [11]
Abortion Laws in Australia
In the first part of the twentieth century, procuring an abortion was a criminal offence in all states and territories. Abortions were carried out in an atmosphere of uncertainty, secrecy, venality of some doctors as well as corruption on the part of police. [12]
The seminal turning point came in the 1969 Victorian case of R v Davidson. [13]
A registered medical practitioner was charged with procuring a miscarriage under the Crimes Act, 1958. In the course of the trial the judge Mehennitt J (following an earlier English case of R v Bourne) gave instructions to the jury to the effect that the use of the word “unlawfully “in the statute meant that procuring an abortion in some circumstances could be lawful. He instructed further that the general defence of “necessity “was available to the accused and applied if “… the accused… believed on reasonable grounds that the act done by him was necessary to preserve the woman from some serious danger “
The test laid down in the Davidson case was accepted in Victoria and filtered through to other states giving doctors a degree of comfort when procuring abortion to prevent harm of some sort being caused or continuing for the pregnant woman. However, the general test was no substitute for the degree of certainty that could be provided by legislation.
Legislation
Since 1998 and starting with Western Australia and followed by other states and territories, abortion has been removed from the criminal codes (except In W. A.). The last was South Australia in 2021. The abortion laws in most states and territories follow a similar pattern with pregnant women free to elect to have an abortion until a gestational cut-off point is reached (except in the ACT where there is no gestational limit). After this point two doctors are required to authorise the abortion. [14]
The various Acts grant these doctors broad decision-making powers based on their medical expertise (except in W. A. where abortion is subject to severe restrictions after the twenty-weeks). The philosophical basis underpinning all the abortion laws can be encapsulated by this statement from the Queensland Law Commission.
“… termination should be treated as a health issue and not a criminal matter “
The gestational cut-off point differs from state to state, and this feature of the laws has attracted some criticism. [15] However, these differences do not appear to have created any significant dissonance, thus far. Now that abortion has been de-criminalised across Australia it seems unlikely that there will be a significant need to travel interstate for abortion- but only time will tell if this is the case. It seems that there are approximately 100,000 abortions carried out in Australia annually. [16]
In all states and territories there is a provision in the legislation creating a safe space around abortion clinics wherein protests may not occur. The High Court had occasion to consider the constitutional validity of the Victorian and Tasmanian statutes creating these spaces. [17] In the course of considering whether an attempt to dissuade a pregnant woman from undergoing an abortion is “a political communication.” Nettle J provided some interesting insight as to how the Court perceived the underlying rationale for having an abortion
His Honour Said: “it is an apolitical, personal decision informed by medical considerations, personal circumstances, and personal religious and ethical beliefs, qualitatively different from a political decision.”
The decision to have an abortion should be beyond the remit of Church and State and that is where State and Territory laws in Australia have placed it. Australia’s abortion laws are pragmatic, balanced and humane. This is something to applaud
Errol Price has decades of experience in commercial law, and specifically as an advisor to leading companies on equity, discrimination and workplace relations. He has helped in formulating human resource and workplace relations policies for many multinational and blue-chip companies as well as advising clients on the impact of equity and anti-discrimination have helped position Symmetra as one of the leading consultancies on diversity and inclusion. He has expertise in the laws pertaining to discrimination, harassment and bullying in the Australian workplace. This has provided the legal foundation for Symmetra’s highly successful diversity, EEO and anti-bullying and harassment programs, delivered across Australia for the past 15 years.
In recent years, Errol has gained experience in the field of privacy and data security laws in Australia and globally due to the fact that Symmetra is a leader in the provision and administration of online assessments for leaders and employees working in mullti-jurisdictional businesses. . Connect with Errol via LinkedIn.
[1] Tolentino J , Is Abortion Sacred ? : New Yorker Magazine , July, 16 , 2022
[2] 410 US 113 ( 1973)
[3] 597 US ___ (2022)
[4] David Von Drehle, The Court’s Abortion Ruling pours gasoline on our Culture Wars : Washington Post, June 24, 2022
[5] Batchelet Statement on US Ruling Dobbs v Jackson Womens’ Health Organisation : Office of the High Commissioner for Human Rights : 24 June , 2022 Zampas C. and Gher JM., Abortion as a Human Right : International and Regional Standards Human Rights Law [2008] Sifris R. and Belton S. , Australia : Abortion and Human Rights : HHR Journal June 2, 2017
[6] Australia signed CEDAW on 17 July,1980 and it was ratified by Parliament on 28 , July.1983; The USA signed CEDAW on 17 , July 1980 but Congresss has never ratified it.
[7] Radio interview with Prof C Chatman- entitled “ Some states want a fetus to be considered a person. Defining those rights is tough” NPR, 6 July, 2022
[8] Greasley K, Abortion as justified homicide (in– Arguments about Abortion): Oxford University Press(2017)
[9] The Guardian, 10 July, 2022 : Texas Woman given traffic ticket says unborn child counts as Passenger
[10] Ely JH, The Wages of Crying Wolf : A Comment on Roe v Wade : Yale Law Journal Vol. 82 No. 5 pp 920-949
[11] Who will be prosecuted for Abortion if fetuses are recognised as People ? , The Guardian , 18 May, 2022
[12] Haigh G., The principle of Necessity : article in The Monthly , November, 2007
[13] [1969] Vic Rp 85
[14] South Australia, Termination of Pregnancy Act, 2021 ( gestational limit 22 weeks); Queensland, termination of Pregnancy Act, 2008 ( gestational limit 22 weeks ); NSW , Abortion Law Reform Act ( gestational limit 22 weeks);ACT, Health Act 1993( no gestational limit ); Victoria, abortion Law reform Act, 2008 ( gestational limit 24 weeks ); Tasmania reproductive Heath Act, 2013 ( gestational limit 16 weeks ) W. A. section 199 and 259 of Criminal Code and Evidence Act ( gestational limit 20 weeks); Norther Territory, Law reform Act , 2017 (gestational limit 24 weeks)
[15] Millar E., Maintaining Exceptionality: Interrogating gestational limits for Abortion, SAGE Journals , 2 August,, 2021
[16] Melville C. , Abortion Care In Australasia ANZJOG, 28 April, 2022
[17] Clubb v Edwards; Preston v Avery [2019] HCA 11
