Is there still a need for abortion-specific laws? The capacity of the health framework to regulate abortion care

by Judith Dwyer, Mark Rankin, Margie Ripper, Monica Cations

Alternative Law Journal, 8 March 2021   Open access


After prolonged periods of criminalisation, 20th and 21st century law reform has now moved abortion care closer to being regulated as health care in all Australian jurisdictions. However, no jurisdiction has yet tested the proposition that specific laws for abortion care are unnecessary. This article analyses the capability of health law, policy and ethics to regulate abortion comprehensively, without the need for either stand-alone laws or special provisions within health law. We examined this question in the South Australian context and concluded that the health framework provides the basis for equitable, safe and accountable abortion care that is also acceptable to the community.

Some key excerpts
However, throughout Australia special laws governing abortion remain, in criminal law, abortion specific law and health law, such that abortion care has conditions placed upon it that do not apply to health care generally. Constraints are most frequently placed on later abortion, with various restrictions applying in all jurisdictions….

Legislative changes over the last 50 years, since South Australia (SA) became the first jurisdiction to liberalise access to abortion care, have been in line with strong and growing public support for the availability of safe abortion care. However, there is little evidence concerning Australian attitudes to later abortion.

In 2019, we undertook a public opinion survey of South Australian adults that assessed community acceptance of applying the health framework to decision-making about later abortion.13 This study found strong majority support for later abortion care to be available ‘when the woman and her health care team decide it is necessary’ (63 per cent support in all circumstances, and a further 22 per cent in specified circumstances that cover the majority of later abortions). This phrase – ‘when the woman and her health care team decide it is necessary’ – describes the decision-making process that would apply under the health framework in the absence of specific abortion law, and the results indicate community acceptance of the health framework as an appropriate regulatory approach in the case of later abortion…..

In this context, this study aimed to assess whether there is any continuing need for abortion-specific laws (in criminal or health law)….

Discussion and conclusion
Our analysis shows that there is no compelling case for a continuation of specific laws to regulate abortion care,52 and further that they will almost inevitably cause unforeseen access and quality problems because they cannot allow for medical and other advances affecting abortion care. We suggest that the only remaining barrier to the repeal of all specific abortion laws is the influence of those who oppose abortion care per se, based on their personal views of the moral status of abortion and their conviction that those views should be enforced on others by the State. Opponents of safe abortion care still seek to maintain the framing of abortion as a matter for legal prohibition or exceptional restriction, based on the concept of fetal rights, which they assert should take precedence over the human rights of women, particularly in relation to later abortion.

Significant development in the health framework in recent decades has now codified the regulatory requirements for safe, effective, appropriate and accessible abortion care, including the accountabilities of health care providers. Abortion care is safe and effective in practice, but access problems remain. Decriminalisation is necessary but not sufficient to overcome the chilling effects of the long criminal history of abortion, seen in problems in the training of health professionals, the standing of abortion providers among their peers, the application of conscientious objection provisions53 and the size of the available workforce for abortion care.54 While there is evidence of progress in these workforce factors, access to care is also compromised in several jurisdictions by the decisions of public hospitals not to provide abortion care, so that patients are forced into the private system.55 We suggest that decriminalisation of abortion in Australia will over time enable the further policy and service delivery changes within the health system that are needed to ensure that abortion care in Australia is also timely, affordable, and accessible in practice.

This study supports the conclusion that there is no continuing role for specific laws on abortion care, and that if the existing laws were simply repealed (excepting only those that regulate the actions of opponents to safe abortion) the delivery of abortion care, including for later abortion, would be able to proceed under normal health care frameworks, best summarised as when the patient and her health care team decide that it is necessary.

PHOTO by Peter Rae/AAP, in The Conversation, 12 September 2018