Access to Abortion: A human rights issue for Australian women

Kate Marsh
June 2011

Sexual and reproductive health rights encompass many areas of basic human rights. The right to health and healthcare, the right to information, the right to life, the right to live free from discrimination and the right to privacy are all inherent in comprehensive access to sexual and reproductive health rights. Of course there are many aspects to this broad area of health rights, including access to good maternity care, sexual health services, contraception and sexuality education. It also includes access to safe and legal abortion - arguably the most contested of sexual and reproductive health rights.

In Australia women’s right to lawful abortion is determined by which state or territory she lives in. Abortion is covered by state-based criminal law or health regulations, and ranges between full lawful access and archaic-sounding legal restrictions accompanied by labyrinthine pathways to negotiate in order to have an abortion performed.  It’s a situation too complex to summarise for this blog, but more information is available here. Suffice to say, wildly differing laws from state to state create confusion for doctors and problems for women.

In some states, women may request and be granted an abortion in a public hospital without having to satisfy any grounds other than to give their informed consent for the procedure. In other states a woman who is pregnant following a sexual assault, or who has been diagnosed with a fatal or severe fetal anomaly and wishes to terminate that pregnancy, has only two options: pay hundreds (sometimes thousands) of dollars for a procedure in a private facility or tell her story to upwards of four medical professionals that advise the state hospital’s ethics board.  The board will then decide whether or not she qualifies for a public procedure.

In recent months, I have heard from doctors, social workers and women themselves about cases where women have been denied abortion in horrific circumstances. One woman diagnosed at 20 weeks gestation with a fatal fetal anomaly – that is, her pregnancy had no chance in resulting in a live birth – was not only refused abortion at her public hospital, but also refused referral to a private specialist and then sent to ante-natal care. She carried the pregnancy for a further 17 weeks before labour followed by stillbirth. In another case, a woman with a severe medical condition, pregnant after being raped by a carer, was refused an abortion in a public hospital, despite her sight being at risk if the pregnancy continued. She had to find hundreds of dollars herself to have an abortion in a private clinic. Another woman receiving ante-natal care at a Catholic hospital presented for a scan at 16 weeks only to be told there was no amniotic fluid present, nor a heartbeat. Her fetus had died in utero. Instead of providing her with medical care, the hospital sent her home to wait for certain miscarriage, not wanting to speed the process as they believed it to be tantamount to abortion.

Such stories are scarily not as uncommon as we would like to think. For some women, the denial of their basic rights to health care results in having to continue with an unwanted or unviable pregnancy. It’s a postcode lottery. The inequity is staggering. In a first world country with what is generally considered a first class health system, this is unconscionable and a clear breach of human rights. 

Around the world, human rights acts, charters and instruments have done much to advance people’s enjoyment of optimal sexual health and reproductive health and rights, including the right to abortion. South Africa’s Bill of Rights has enshrined the ‘right to bodily and psychological integrity, which includes the right… to make decisions concerning reproduction’, which has protected abortion access from anti-choice attacks. In the United States, the decision in 1973’s Roe v Wade Supreme Court case overrode state laws to legalise abortion up until viability to protect women’s constitutionally-protected right to privacy. Human rights groups around the world continue to advocate for the removal of laws criminalising abortion: Amnesty International has urged all countries still holding these laws to repeal them; Human Rights Watch continues to document the result of criminalised abortion and lack of abortion access. The Parliamentary Assembly of the Council of Europe has also called upon member states which have not already done so to decriminalise abortion, to ‘guarantee women's effective exercise of their right to abortion and lift restrictions which hinder, de jure or de facto, access to safe abortion’.

The introduction of a National Human Rights Action Plan provides a unique opportunity to level the playing field in Australia. Naturally this debate cannot take place solely in a rights-based framework, but it is a great place to start. Essential components and areas to target include access to quality, safe, legal and affordable abortion services; national standards for quality sexuality education; and honest discussions about the rights of faith-based or anti-abortion health workers or facilities to withhold abortion care or information versus the rights of pregnant women. Conversations on these and other related issues are already taking place in different jurisdictions around Australia. However, to expand those discussions as part of a national approach to consistent rights for all would be infinitely preferable, if we are to avoid a repeat of the current confusion caused by different rules for different states. A national action plan should underpin the provision of these services and increase the accountability and transparency of provision, as well as providing national consistency and clarity.

If, as many hope, the National Human Rights Action Plan is a stepping stone on the way to a national charter of rights, it is vital that we include sexual and reproductive health rights, particularly in relation to abortion, from the beginning.

Kate Marsh is the Public Liaison Officer for Children by Choice, a pro-choice counselling, information and advocacy service for women facing unplanned pregnancy. Kate’s work  involves policy and political advocacy around unplanned pregnancy issues at both a state and a federal level, and she has been very active in the campaign to decriminalise abortion in Queensland. Kate is the founder and coordinator of Pro Choice Qld, a coalition of organisations and individuals who campaign collectively to reform abortion law. She is also a member of the Young Women’s Advisory Group to the Equality Rights Alliance, Australia’s largest organisational network of women’s advocates.

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Anonymous commented on 18-Oct-2011 03:57 AM
The South African human right of 'bodily integrity' should be adopted in Australia. High but largely hidden rates of rape and reproductive co-ercion are at least in part due to a failure to take these gross violations seriously unless they entail certain
levels of physical violence. Dictating whether or not another person falls pregnant against their will should be considered a human rights violation. Denying a woman access to abortion contributes to society's proprietorial attitudes to women's bodies which
supports our horrendous rates of domestic & sexual violence. Laws against a woman's physical integrity, such as a law against abortion, or the law's failure to recognize familyplanning/contraception as a basic human right, objectify women, which results in
more victimization. A right of physical integrity, whether or not it can be enforced, will help to bring social thinking forward on the importance of equating a woman's physical integrity with a man's. (Did you know that rape trials have a much higher conviction
rate where the victim is male? And are you actually surprised?)
Louise commented on 25-Jun-2012 03:59 AM
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