This week, on 11 May 2017, a bill two-years-in-the-making to decriminalise abortion in the state of New South Wales, Australia, was defeated 14 to 25, meaning abortion remains a crime under the Criminal Act. Greens MP and Spokesperson for the Status of Women, Dr Mehreen Faruqi MLC, who led the campaign to decriminalise said: “This bill was not about promoting or not promoting abortion. It was about choice.”
Another separate bill to establish 150 metre safe zones to protect abortion clinics has been introduced by Labor MP Penny Sharpe. This bill works to eliminate harassment and intimidation by anti-choice lobbyists who film and degrade women who walk into clinics.
In NSW, women can access abortions only with their doctor’s consent that there are “reasonable grounds” for the abortion, linked to physical and mental danger. Otherwise abortion is punishable by five years in jail.
This law has been in place since the 1970s, but stems back to 1900. Counter to national myths of our egalitarianism, abortion laws unearth how gender inequality is maintained by White, conservative Christian patriarchal ideology that seeks to control women’s autonomy. Sociological studies show how medical professionals have long been at the vanguard of change, by shifting understandings of abortion from moral arguments, to a medical choice.
Christian lobby groups, who hold strong political power, push back against medical and community views, using emotional imagery to influence abortion laws. This has proven effective over time, and continues to hold back progress in New South Wales (and Queensland, another conservative stronghold). Despite this recent set-back, momentum towards progressive change continues. A better sociological understanding of religiously conservative ideology and tactics may hold the key towards the next legal breakthrough.
The laws governing abortion in NSW are founded in the Crimes Act 1900. Getting an “unlawful abortion” carried a ten year prison sentence, while unlawfully supplying “any drug or noxious thing, or any instrument or thing whatsoever” to aid abortion carries a five years sentence. While Australian feminist movements championed positive change on abortion in the 1960s and 1970s, with a state campaign beginning in 1972, legal changes have been led by the medical community.
Beginning with more liberal interpretation of existing abortion laws in 1969 in Victoria, and followed by legal changes in South Australia in 1970, it was medical doctors who compelled changes by framing abortion as a medical issue (rather than as a moral one).
In New South Wales, the 1971 legal case, R. v Wall et al, a jury was instructed to consider the “economic or social stresses” that may impact on women’s mental health. This led to broader changes in abortion practices. It was the first time a second doctor’s opinion was deemed unnecessary to support an abortion as well as the first time abortions became permissible outside of public hospitals. This monumental ruling gave the “green light to openly provide services for the first time anywhere in Australia.”
In the 1995 legal case, CES v Superclinics Australia, the definition of mental health expanded to social or economic stress before or after pregnancy. NSW law has lagged behind most other states and territories thereafter.
Australian women can receive two types of abortion. Medical abortions can be sought up to nine weeks from the first day of a woman’s last period. This abortion requires two medications (Mifepristone RU486 and Misoprostol), which can be taken at home in some states. Surgical abortions are undertaken between seven to 12 weeks from last menstruation. In NSW, services for abortion are further available up to 20 weeks of pregnancy. Abortions are administered by a registered doctor via clinics or hospitals.
Despite ongoing, widespread support from medical professionals and the broader community, moral opposition to abortions by conservative politicians continues to maintain punitive laws.
Unequivocal support for change
The vote to maintain the criminal status of abortions by the NSW Parliament goes against the overwhelming scientific evidence and support of the medical , legal and education communities.
Three hundred doctors signed Dr Faruqi’s petition to overturn the current law. The Royal Australian and New Zealand College of Obstetricians and Gynaecologists, Women’s Legal Services, and the New South Wales Council for Civil Liberties were among a dozen major professional associations that gave “unequivocal support” to the proposed bill. Over 100 law and criminology experts signed an open letter to ministers, seeking their support of the bill.
Research from the early 1970s to the 2000s shows that the overwhelming majority of Australians are pro-choice (81%), only 9% are anti-choice, and the rest are ambivalent. Coalition politicians have more conservative views on abortion than the rest of the public, including Liberal voters. While only 30% of Liberal and National Party candidates are respectively pro-choice, 60% of Liberal and 54% of National voters support abortion.
More recent data suggest these patterns remain, growing in favour of unrestricted access to abortion. A 2015 poll commissioned by the Greens party finds that 87% of people in NSW support abortions, with only 6% opposed. While other voters are more enthusiastically pro-choice, the majority of Liberal and National Party supporters are in favour of decriminalising abortion (75%) and creating safe zones (83%). Despite this widespread support, the majority of NSW residents surveyed (76%) are not aware that abortion is illegal in their state.
Other states and territories
NSW and Queensland are the only two states to keep abortion illegal.
Only recently, the Northern Territory voted to decriminalise abortion (effective from July 2017). NT was the only state or territory where the medical abortion pill was not available. The laws had not been updated since 1974 and forced women to travel long distances to receive assistance. The new laws make abortion legal up to 14 weeks of pregnancy with only one consultation with a doctor, or two doctors up to 23 weeks (and permissable only “to save a women’s life”). Women can also self-administer the pill after a visit to their doctor. Safe zones of 150 metres will be established to protect women visiting clinics.
The debate was mired by sexist misinformation and paternalistic racism. Member for Nelson, Gerry Wood, who is a White man, argued that decriminalisation was tantamount to domestic violence and “another Stolen Generation.”
This egregious characterisation of domestic violence demonstrates the lack of regard for women’s wellbeing by anti-choice leaders. Domestic violence is an issue of profound gender inequality impacting the safety of women from various backgrounds. Likening abortion to gender violence is a misogynistic and unethical statement.
This year marks the 20-year anniversary of the Bring Them Home report, which chronicled state violence against Aboriginal and Torres Strait Islander children, who were removed from their families and sent to live in missions and with foster families (”the Stolen Generation”). Comparing abortion access to this act of cultural genocide is both sexist and racist, and especially damaging to Indigenous people, given the practice of removal continues to this day. Moreover, mainstream White feminist fight for abortion, especially in the 1970s, ignored the reproductive rights of Aboriginal and Torres Strait Islander women, including the removal of their children. Wood has not led any major campaigns for either domestic violence nor for the Stolen Generation. Wood’s tactic is more about preserving White male dominion over women’s bodies, through sexism and racism, than about women.
These discussions show how paternalistic and disingenuous political debates continue contravene women’s rights.
Inequality and abortion medicine
Abortion medicine is another source of ongoing inequality. Surgical abortions are an expensive option which require an anaesthetist and surgeon. Medical abortions, through pills, should be a more affordable option. The pills cost $38.80 after the public health discount, but with varying fees for medical and surgical abortions, the costs can be as low as $250 in Tasmania to $790 in Queensland for medical procedures alone.
The Marie Stopes clinic is the only non-hospital provider of abortion medicine in NSW as well as medical and surgical procedures (within the first 12 weeks). This costs around $500 for surgical, but medical is more expensive ($560).
Women’s reproductive rights in NSW are grossly uneven and out of step with the rest of the country.
Sociological research demonstrates how current political debates remain steeped in patriarchal narratives, supported by White Christian patriarchal ideology.
Sociology of abortion laws in Australia
On surface level, Australia is a secular nation that sees itself as egalitarian and progressive on human rights. Various social issues, particularly regarding gender violence, Indigenous rights, and humanitarianism, show that our nation remains focused on parochial values. As a result, Australia’s laws continue to punish all women, gender minorities and anyone else who is not a White cisgender male. My focus here is on women’s access to abortion.
Patterns of religiosity show that Australia remains a Christian nation, albeit one whose Christianity is less overt, except in cases of otherness. That is, people who are not Christian experience discrimination when they bear visible signs of religious difference (through their clothes or customs). Women’s otherness in Australia also becomes visible through our legal and criminal justice system, such as through abortion laws. In this sense, women are “the Other” of the state, as women’s rights are defined primarily by men’s interests.
Sixty-one percent of Australians identify as Christian; while this religious affiliation has been declining as more Australians identify as atheist, Christianity is built into Australian institutions and inform everyday life. Christian influence over abortion laws in Australia is well documented by sociologists, who show that a strong association between Church and state is obvious in our laws. Historical influences are evident not only in the design and enforcement of abortion laws, but in the ways in which public debates are aired in the media and in Parliament. Under the previous Liberal rule of the Howard Government (1996 to 2007), political discussions of abortion became ultra-conservative, and debates were framed around White men’s patriarchal control over women’s bodies.
With the Liberal and National parties’ control over politics in recent years, the same White male ideology permeates over national discussions, as recently played out in NSW Parliament.
Even in these modern times, when most Australians consistently demonstrate support for a woman’s right to choose, women are still placed in a difficult situation. Women internalise debates about the imagined rights and “separateness” of the foetus versus their own personal beliefs, health and circumstances.
Contrary to misinformation, decriminalising abortion has actually led to lower rates of abortion in Australia. From the early-to-late 2000s, this lower rate is associated with safer procedures, increased access to medical abortions (pills), and greater access to other contraceptive methods. Abortion practices, access and attitudes vary, however, with migrant-Australian women sometimes facing community pressure to seek abortion only in limited circumstances. For example, among Hmong women in Melbourne, abortion is less stigmatised if they already have other children.
Irrespective of cultural norms, religious pressure at the national level is the work of the ever-expanding anti-choice groups that gained prominence in the late 1990s. These networks rely on visual propaganda, from stylised to shocking images of foetuses. These groups supply graphics to politicians who have relied on them in their political campaigns. These groups also held strong influence in the design of pamphlets that were legally required to be provided to women seeking an abortion from 1999 to 2001, under the Health Regulation (Maternal Health Information) Act ACT 1998.
Various other marketing and protest campaigns have shaped the national imagery of abortion, focusing on the artistically enhanced “awe” and “wonder” of foetuses on the one hand, and false images of blood and mutilation of foetuses on the other hand. Both tactics relegate women’s bodies and autonomy into the background. Imagery has been the most effective political tool in subverting progress on abortion law, by making emotional appeals that are especially adored by conservative politicians.
Women’s right to choose
Following this history, the Australian Christian Lobby and the Catholic Archbishop of Sydney lobbied against change in NSW by focusing on hyperbole of later term abortions, which are a rare occurrence and relate only to serious health risks. The Christian Lobby’s director in NSW, Mark Makowiecki, used scare tactics and political pressure, falsely claiming Dr Faruqi’s decriminalisation bill would “permit abortion till birth.” He also focused on the removal of “rights” of third parties, namely “the conscience rights of doctors, and prevent prayer vigils and sidewalk counselling near abortion clinics.” The language here is about denying women’s choices, instead emphasising the authority of doctors (who have attested they support decriminalisation) and abusive protesters (whose scaremongering is not a ethically justifiable concern).
Dr Fauqi’s speech on the day of the conscience vote dispels these misconceptions. She notes the lack of evidence that decriminalisation would lead to adverse patterns such as dangerous late-term abortions. She notes extensive consultation occurred with medical practitioners, lawyers, academics and the community of NSW. In May 2016, the proposed bill was provided to ministers for comment. Women obtain abortion via a legal loophole, but because of this the majority of abortions occur in the private sector, penalising women in rural areas that have to travel far and pay exorbitant amounts of money (see below). “Criminalising abortion achieves nothing other than increasing the stigma surrounding the procedure and increasing delays in accessing services.”
The questions before this Parliament today are these: Do we want to remove criminal offences around abortion and leave it to be regulated the same way as other medical procedures? Do we want to make sure that women are able to access a medical procedure in safety, dignity and medical privacy? Do we want doctors who have an objection to abortion to refer patients on to another doctor who does not, and who can give them the full gamut of options available? A vast majority of people in New South Wales and Australia have said: “Yes, we do,” to all three questions… Today is a historic day for women’s rights in New South Wales. This Parliament has had to confront an issue that it has avoided for well over 100 years.
The Ministers who voted in support of Dr Faruqi’s bill predominantly focused on abortion as an issue of human rights.
- “The reality is that it is our right to make decisions about our lives and our bodies.” – Lynda Voltz, Labor
- “As a gay man it might be argued that I have no skin in the game; I can’t possibly imagine the state enacting laws about what [a woman] can and can’t do with her body. Well, I do have some understanding, because as a young gay man both the church and the state forbade me from engaging in sexual activity.” – Mark Pearson, Animal Justice Party
- “I believe that [abortions] are decisions for the individual and not the state and that is the best way to reconcile the strongly opposing views on this issue. There is a significant gap between the words of the law and the lived reality of NSW citizens, and I think it is hard to think of a NSW law where the gap is so large.” – John Graham, Labor
- “Abortion is provided almost exclusively in the private system and there is nowhere else where patients are left without the safety net of a public system.” – Penny Sharpe, Labor
All the Liberal and National members in NSW voted against the bill as well as three Labor members and two independents. As Dr Faruqi notes, only one of these politicians addressed the community about their vote. This was The Nationals member, the Hon Trevor Khan MLC.
Khan referred to 2016 discussions in Queensland that emphasised the need for consultation before legal reform. He curiously quoted extensively from a 2009 academic paper by law academic Dr Kate Gleeson, which shows that doctors are not generally under threat of prosecution under NSW law. The last conviction of a doctor under the Crimes Act was Dr Suman Sood in August 2006 (who was sued for various professional misconducts for failed procedures). Aside from the fact that Khan focuses on the prosecution of doctors, rather than the rights of women, he did not quote Dr Gleeson’s 2013 article which discussed the need to revisit abortion laws, especially medical abortions which are poorly serviced due to constraints on who can perform the procedure. Nor did he quote her praise for the decriminalisation of abortion laws in Tasmania in 2013.
Khan relies heavily on statistics from one study on abortion rates from 2003 by Annabelle Chan and Leonie Sage. Khan erroneously claims the study demonstrates that Australia’s abortion rates are higher than other advanced nations. It isn’t the case, as I’ve shown above. Moreover, that study actually argues that abortion statistics in 2003 were inadequate as there were no accurate data collection methods (and so the researchers relied on Australia’s national health system, Medicare).
Khan also uses subjective conjecture, focusing on the assured safe procurement of abortion services, rather than the right to obtain an abortion under a non-criminal framework, and the hindering need to obtain medical consent.
“I have not heard any evidence that those abortions are performed in a dangerous or unsafe manner, or that they failed to take into account the health and welfare of the mother.”
Notice Khan calls women seeking an abortion “mothers.” This is a tactic that reinforces women as incubators with forced parental responsibilities.
Khan concedes there is a lack of health services for women in rural and remote regions (true), and then incredulously talks about the stigma of buying condoms. He concludes with a dismissal of Dr Faruqi’s bill by calling it her passion; this is a gaslighting term used to undermine the seriousness of women’s professional arguments as an emotional project or personal interest:
I acknowledge Dr Mehreen Faruqi’s passion but I say to her: Let us have a discussion based upon an accurate understanding of history, the law and present day practices, not on myths and anecdotes. For these reasons I cannot support the bill.
I re-emphasise that Khan’s entire argument was based on two papers published 14 years ago, and poorly characterising the data and broader context of the researchers’ arguments. This is decidedly not “an accurate understanding of history, law and present day practices,” nor does Khan’s conscience vote take into consideration women’s rights, medical professionals’ expertise, and the broader community’s pro-choice values.
Anti-choice and anti-diversity
I note that although it was mostly men who upheld the decriminalisation of abortion—overwhelmingly White men—four White women also voted against the collective rights of women in NSW.
Let me amplify this point. Racist and sexist discourses in Australia highlight the otherness of Muslim-Australian culture and religion. Muslims are depicted as being uniquely sexist and “un-Australian.” Yet it is not religiosity per se, nor migrant cultures specifically, that maintain gender oppression in Australia. Instead, the reality is that conservative White Christian politics that sustain the status quo.
All too often, White Australian media and politicians hold up Australian-Muslims as a “threat” to “Australian values” (even when they are high-achieving feminists). Well, Dr Faruqi is a migrant-background woman of colour, born and educated in Pakistan, with a PhD in Environmental Engineering. The first Muslim woman to be elected into Australian parliament, she is just one of many Muslim-Australian women who work tirelessly for gender equality.
It is conservative, White Christian men and women who hold political power that are restraining gender equality. This is not just in abortion laws, but also in continually under-funding legal and community services, shelters and programs supporting women who experience violence; penalising women receiving much needed welfare; failing to fund Indigenous women’s initiatives; introducing higher university fees that will especially impede women from working-class, rural and remote, and minority backgrounds; and the other negative changes unveiled in the national budget this week.
The next time another White conservative politician attempts to whip up Islamophobia in connection to “Australian values” and “oppression of women,” let’s bear in mind that those same politicians—yes, even the women—don’t actually care about women’s health, wellbeing and freedom of choice.
In the state of NSW, as with Queensland, women are being denied the right to choose their reproductive autonomy. Dr Faruqi has vowed not to give up the fight for women’s rights: “This is only the start we have created overwhelming momentum and we will only move forward from here.”
As we look to the future with hope and determination for women’s rights to be finally honoured, let’s reflect on this quote from feminist author Helen Garner, whom Sharpe quoted in her speech supporting Dr Faruqi’s bill, on the same day she introduced her own safe zone bill. The quote is from the foreword to the 2006 collection, Lost: Illegal Abortion Stories. The collection of stories represent the estimated 90,000 women who annually had unsafe, illegal abortions year after year, until legal changes in 1971.