Why Doesn’t Everyone Have Equal Access To Abortion In Australia?
In March 2021, when South Australia became the final jurisidiction in Australia to decriminalise abortion, it was heralded as ‘a historic day for women’.
The decriminalisation of abortion in Australia began in the 1990s and didn’t end until 23 years later. But the groundwork for liberalising abortion law began decades before the 90s.
In Australia, roughly one in six pregnant people have had an abortion by their mid-30s. And around a third of all Australian people who conceive will choose to terminate a pregnancy at some point in their lives.
Even though having an abortion in Australia has been legal since the 70s, it’s still not accessible to everyone who needs it.
And it can also be really confusing trying to understand why.
Abortion in Australia was regulated under the criminal law for a long time.
When settlers invaded Australia, they brought England’s criminal laws with them.
They were laws that had been written by all-male parliaments during the early 1800s, where women had no rights, there wasn’t a scientific understanding of reproduction, and abortion was a fringe practice that wasn’t considered to be proper medicine. And at Federation in 1901 criminal laws were written into separate state and territory codes and constitutions. Under these laws, abortion was seen as a crime.
Because every state and territory has a different approach to law, legislation, and policy, they also have a different approach to abortion, and that’s created what’s usually called Australia’s ‘confusing patchwork of abortion laws’.
Throughout the 19th century in Australia, abortion was criminalised. It was illegal for a person to get one, and doctors were condemned for giving one.
Then in 1939, a judge in the UK allowed legal access to an abortion for a minor who had become pregnant after having been raped.
It was the first landmark ruling in abortion case law, and it challenged the blanket criminalisation on abortion.
Criminalisation had pushed abortion service provision underground. Backyard abortions were risky and unsafe, for both the doctor and the patient. By the 60s, the maternal death rate from illegal abortion was so high, it was considered a public health crisis.
Over the course of the 20th century, the outcomes of individual cases – like R v Bourne in the UK, and like the Menhennitt ruling ruling in Victoria in 1969, and the Levine ruling in NSW in 1971 – forced the law to catch up with social realities and view abortion through a medicalised framework.
For doctors, these cases clarified that they could be protected for performing an abortion if they decided it was necessary to protect a pregnant person’s physical and mental health, with consideration of social and economic factors, and when patients gave informed consent.
But for patients, although there was a way to access abortion, that access became about doctors qualifying you as ‘unfit’ enough to receive one.
What followed was a push from activists and doctors who were willing to test the law. Through this, the Australian public came to understand abortion within the framework of a person’s right to choose.
Barbara Baird, Flinders University: “Abortion services started to be provided more liberally around the country at different pace, but certainly, SA, VIC, and NSW, and then the NT started to really open up the provision of abortion services in the 70s.”
By the end of the 70s, Australia was allowing safe legal, surgical abortion that was listed under Medicare.
But that didn’t mean more people were suddenly able to access it.
Overregulation of Abortion
When legal abortion provided by doctors entered the public arena, conservative politicians tried to restrict access to services as much as possible.
They did that by completely overregulating when and how someone could have an abortion, legally.
For example, rules were imposed around how far along the gestation period an abortion could be legally carried out.
Gestational limits still exist today, despite most leading health bodies widely opposing them because of the added pressure and stress they can put on pregnant people.
And different states have different rules about what those limits are.
In SA, people can request an abortion up to 22 weeks and six days. Other states range from 16 to 24 weeks. The ACT has no gestational limits, and in the NT a medical practitioner’s decision determines the final call, regardless of gestation.
What can happen after 22 weeks also varies state to state.
In some places an abortion may be approved. But it’s most commonly under circumstances of fetal abnormality, and it often needs to be approved by two doctors. The decision doesn’t usually take into account whether a person’s economic situation changes later in their pregnancy.
In the early 90s, when the medical abortion pill RU486 arrived as an early-stage alternative to surgical abortion, that too became a way for politicians to restrict access.
Despite being internationally recognised and used for safe effective abortions up to 9 weeks, and successfully trialled in NSW and VIC by the World Health Organisation, RU486 was banned from Australia for pretty much the entire term of the Howard Government.
It wasn’t approved for commercial import into Australia until 2012, after a decade of lobbying.
The Conscience Vote
Access to abortion care has always been affected by something called the ‘conscience vote’.
When politicians vote to clarify abortion law in parliament, they usually use a conscience vote. It’s a mechanism that allows MPs to vote according to their own personal beliefs, instead of voting as a representation of the official policies they support.
Conscience votes are typically exercised on issues that conservatives feel have a sensitive moral dimension. (Think euthanasia, capital punishment, sexuality, and drug reform).
Even though legislation in all states and territories now recognises that abortion is a medical procedure, Australian parliaments have always treated it as a politically destabilising and sensitive moral issue, rather than being an essential healthcare issue with specific party policy attached to it.
The conscience vote has ultimately allowed abortion to remain a marginalised health service, not a primary one. So it can still be incredibly hard for many people to access.
BB: “In Australia, abortion services are provided, predominantly if not almost entirely, in the private sector. And that means you might need to find, let’s say $500, for a simple first trimester procedure.
Poverty is a really big issue if you’re having to seek an abortion through the private sector. And if you want to generalise, you can say that VIC, NSW, QLD and WA all have really good private clinics, but they all cost money.”
Those costs go up for regional Australians who have to travel to metropolitan areas to access private clinics.
Only in the NT and SA are abortions predominantly provided in the public sector. But this presents its own unique access challenges and there are still major wait-times for people seeking an abortion in the NT.
Currently, it’s estimated that only 1,500 of Australia’s 35,000 GPs are registered prescribers of medical terminations in Australia.
BB: “A lot of Tasmanian women still fly to Melbourne to get an abortion because there’s just no public care, only small numbers of, GPS and no private clinics.
Most doctors overwhelmingly support abortion, but that doesn’t mean they want to become an abortion provider. There’s a real mismatch with their attitudes and then their actual commitment to offering that service as part of their practice.”
Looking Forward; Abortion Policy
SA recently passed legislation to decriminalise abortion in the state, which made it the final Australian jurisdiction to do so.
The bill was introduced by Greens member Tammy Franks who made it clear that they were pushing for reform, to view abortion as a healthcare policy matter.
Franks said, “This policy is supported by the Greens of South Australia. It is, indeed, not a conscience vote for the two members of the Greens in this parliament because this is our party platform that we took to the state election: that abortion is a health issue, not a criminal matter.”
The demand for policy improvements is the newest and most promising thing to emerge in the reform space.
Australia still has a long way to go to providing access to safe and affordable abortion services, without constricting gestational limits.
BB: “Decriminalisation doesn’t necessarily make any difference at all to this key issue, which is the failure of the public sector to provide abortion care in Australia.”
Overwhelmingly, the majority of Australians support a person’s right to choose to have an abortion.
But until abortion becomes integrated into the primary health care system, through properly resourced public health policy, it will remain a marginalised service, and Australia’s position on abortion could remain in the hands of a few conservative politicians.