Life and Choices

The debate about abortion laws has become a live election issue in the United States after the leak this week of a draft Supreme Court opinion that would overturn almost 50 years of laws in a controversial area. Even Australia's Prime Minister, Scott Morrison, has been asked about Australia's abortion laws on the campaign trail and whether they should be changed.

So what is this all about?

The Americans: Roe v Wade

The United States Supreme Court is currently considering a Mississippi law that makes abortions after 15 weeks a crime. However, other states ban it completely. The court appears to try and balance of what the Mississippi law calls "an unborn human being" against a woman's right to privacy and personal rights under the Fourteenth Amendment of the US Constitution (which is about all citizens having the right to Due Process, including privacy.)

Roe v Wade was a case in 1973 where the US Supreme Court, by a vote of 7-2, decided that the Constitution protected the right of a woman to choose whether to obtain an abortion. They ruled that governments could not prohibit abortion in the first trimester of pregnancy, but could impose reasonable restrictions on the second trimester. The Court ruled that states could ban abortions in the third trimester - as long as there were reasonable exceptions where it was necessary to save the life or health of the mother.

This was reconsidered again in 1992 - advances in medical knowledge and technology meant that a baby was not viable (i.e. fully formed and capable of surviving outside the womb) until 28 weeks in the 1970s, but was now viable at 23 or 24 weeks. In Planned Parenthood v Casey, the Court moved the lines to be based around when a foetus was "viable", and not based on which trimester of pregnancy was involved. The court decision meant that state laws could not criminalise abortion until the child was "viable", and once this stage was reached, states could control or criminalise abortions - again, with the exception of the preservation of the life or health of the mother.

The case currently before the Court (Dobson v Jackson Women's Health Organisation) involves a Mississippi law which criminalises abortions after 15 weeks. This is well before a foetus, even with modern medical advances, is able to survive outside the womb - and in some cases, can even be before a mother is aware that she is pregnant. A leaked preliminary decision this week indicates that the Court is likely to overturn Roe v Wade and say that the Supreme Court has no place in deciding what is acceptable or not, and return the decision making to state politicians. In at least 24 states, were it not for the Suprem

e Court's decision, most or all abortions would immediately become a crime. One law in Georgia, passed in 2019, would ban all abortions after six weeks of pregnancy - a separate appeal is waiting on the outcome of this case.

The Australian Situation: A Hodge-Podge Between States

Australian law in this area is decided by each state individually. There are no constitutional provisions that directly touch on the area and it is a matter for each state government what they allow, and what they ban.

The federal government and the High Court of Australia do not have involvement in the area (but the government does control whether Medicare will fund the procedure.)

The most conservative state is Western Australia; abortion is accessible up until 20 weeks. However, unlike other states, it is extremely difficult to obtain services after 20 weeks and parental notification is required where the mother is under 16 years of age. The last two requirements appear to be unique to Western Australia.

In Tasmania, abortion is available up until 16 weeks, and after this with the approval of 2 doctors; any procedure can only be carried out by a doctor or the pregnant woman. (Anyone else performing this procedure is committing an imprisonable crime.) New South Wales and Queensland allow up until 22 weeks, and again, after this time with two doctors' approval. In Victoria and the Northern Territory, the same applies, but the line is at 24 weeks; and 22 weeks and 6 days in South Australia.

The most liberal in Australia is the ACT, with no limit on accessing services, but they must be performed by a medical doctor.

In all states, it is illegal to protest against abortions within 150 metres of a clinic.

This, of course, has not always been the case and each state has its own curiosities, concerns and practical issues in this area. Abortion was a crime in Queensland until December 2018 and Victoria until 2008 (in both cases, except where for the life or health for the mother), and there remains no public health service providing this in Tasmania except in extraordinary circumstances, such as foetal abnormality. Some states specifically disallow it for certain reasons, such as "gender selective abortion" in South Australia.