This week the little Australian island state of Tasmania muscled into the International abortion scene vying for the distinction of “Most Regressive and Repressive Jurisdiction in the World”.
In the face of overseas abortion law trends that acknowledge the humanity of the baby developing in the mother’s womb, Tasmanian legislators this week passed a law that disregards the state’s duty to protect an unborn child right up to birth, fetters a doctor’s right to conscientiously object to participate in the chain of events leading up to an abortion, and criminalises protesting near an abortion clinic.
Abortion on demand right up to birth.
The new law provides that a mother may be granted an abortion up to 16 weeks gestation on request. After 16 weeks an abortion may be performed if two medical practitioners believe that continuing the pregnancy would involve a greater risk to the mother’s physical or mental health than if the abortion were performed. The law mandates that these doctors must consider the woman’s physical, psychological, economic and social circumstances.
No cooling off period, no mandated independent counselling, no gestational limits.
Incredibly, despite much rhetoric that the Legislators proposing these laws “value life”, an attempt to introduce an amendment that would prevent abortion from 20 weeks onwards unless there were severe medical problems, was voted down.
Given these broad criteria, it is impossible to contemplate a scenario in which a mother’s request for an abortion after 16 weeks gestation could be refused. This is abortion on demand through to birth.
This is to be contrasted with trends in the United States setting gestational limits based on foetal pain and viability. There are now 10 states in the US that have passed foetal pain Bills. Forty-one States in the US prohibit abortions after a specified point in the pregnancy, most often foetal viability, generally except where necessary to protect the woman’s life. Many US states mandate counselling and waiting periods. These measures in US state law acknowledge the humanity of the unborn child and are a tilt towards affording legal protections to the unborn child as set out in the United Nations Declaration of the Rights of the Child.
Conscientious objection fettered
The proposed conscientious objection clauses, compelling doctors and counsellors with a conscientious objection to “refer” a woman seeking an abortion to a practitioner without a conscientious objection, were the subject of considerable debate. Eventually they were substantially altered to exclude counsellors and remove an obligation to “refer”.
But what remains is still most unsatisfactory to those doctors who maintain a conscientious objection to abortion.
The law now requires them to provide the woman with a list of “prescribed health services” from which the woman may seek advice, information or counselling on the “full range of pregnancy options” – ie, including abortion. This law exceeds the duties required by the Medical Board of Australia in its Code of Conduct for Doctors in Australia, as it compels practitioners to positively facilitate access to abortion rather than simply “not impede” access to abortion.
For doctors with a conscientious objection, handing over this pamphlet means they are complicit in the provision of the abortion service.
Arguably, a law compelling the provision of a pamphlet setting out where advice on abortion can be procured, violates a doctor’s right to freedom of conscience, thought and belief set out in Article 18 of the International Covenant on Civil and Political Rights. And as one doctor wrote to the committee:
“Procedures such as termination of pregnancy and euthanasia stop life. That is their aim. This goes against all that Health Workers are trained to do – to protect, preserve and enhance life. Suppressing the use of conscience in these areas is not just denying workers’ rights. It is denying who these workers are – carers for life.”
Access zones unjustified
In a first for Australia, a 150m “access zone” has been introduced around abortion clinics in Tasmania. Within this zone a range of activities are prohibited and can attract a financial penalty or imprisonment. This includes protests that can be seen or heard by a person attempting to access the clinic. It is strongly argued by Australian constitutional law expert Michael Stokes that the prohibition of protesting may be an infringement of the Constitution’s implied right to political communication.
Exactly what sorts of behaviour might constitute a “protest” is not clear. Arguably a person quietly praying outside the clinic is not “protesting”. Does a group silently praying constitute a “protest”? Do mothers standing outside the clinic with their babies constitute a “protest”? Or could this be seen as “intimidating” a person accessing the abortion clinic? How this law will operate in reality is unclear.
Perhaps the greatest impact of the law is that it proposes that people with certain characteristics, those who advocate for the protection of the unborn child, should be specifically regulated. This regulation operates to characterise their viewpoint as illegitimate and prevent its expression to their intended audience – pregnant mothers contemplating an abortion.
It is notable that in weighing up whether it is reasonable to fetter free speech in this manner, the Committee inquiring into these new laws did not report any evidence that protests have actually occurred outside any Tasmanian abortion clinic. The Committee also did not evaluate any peer-reviewed published evidence that there are impacts on women seeking an abortion from hearing or seeing protests. For example, recently published research suggests that even if such protests did occur they have no enduring impact on a women’s emotions. Because of this, their finding that the access zones are “justified” is not at all persuasive.
Diana Hutchinson’s professional background is in Administrative Law. She served as a full time legal member on a Commonwealth Tribunal for several years, and has worked in Administrative Law and Policy Development in Commonwealth Departments.
 Dr Gerard Fogarty, President of Solidarity!, 6 June 2013