by Barbara Baird, Michael Thomson, Angel Dawson, Deborah Bateson, Kirsten I. Black, Sue Shilbury
Medical Law International, Vol.25, Issue 1 – Open access
Abstract
As part of a global liberalising trend, the last two decades have seen abortion decriminalised in each of Australia’s States and Territories. In this article, we focus on New South Wales (NSW) – the country’s most populous jurisdiction – and locate the State’s abortion law reform in its global context. Abortion was decriminalised in NSW in 2019. As part of this, the State introduced a new legal framework that continues the long history of exceptionalising abortion in the legal regulation of health care. Furthermore, while decriminalisation is a necessary modernising reform, it is not a guarantee of improved access to services. This has been the experience in a number of decriminalised jurisdictions, including NSW. In this, we argue that services remain simultaneously over- and under-regulated. Responding to this, and centring public responsibility for abortion care, we propose a model designed to advance universal access to abortion services. In this regard, there remains a central role for law and policy in improving health equity. In addressing the role of law in post-decriminalisation jurisdictions, we advance understandings of law as a determinant of health.
From the Introduction
Australia has recently concluded a wave of decriminalisation measures. This began in the Australian Capital Territory (ACT) in 2002 and concluded in Western Australia (WA) in March 2024. Decriminalisation is generally used to connote the removal of all reference to abortion in the criminal law. The term is widely used in Australia to refer to the reforms that have taken place since 2002, although it should be noted that each jurisdiction retains a criminal offence for unqualified persons who perform abortion. Law reform in all jurisdictions has also been accompanied by new law that regulates how abortion care is provided. At a minimum, decriminalisation means that the pregnant person and qualified health care professionals are exempted from criminal prosecution. Each jurisdiction also introduced safe access zones, which prohibit ‘protest’ around abortion-providing facilities. These legislative initiatives have been part of an unfolding ‘global abortion revolution’ evidenced in the last two decades. Decriminalisation has been a notable aspect of this trend, with recent years seeing partial or full decriminalisation in a number of countries including Aotearoa/New Zealand (2020), Argentina (2020), South Korea (2021), Mexico (2021), and Colombia (2022). It is also recommended in the World Health Organization (WHO) Abortion Care Guidelines. This article contributes to a growing body of literature that addresses this liberalisation trend in different jurisdictions, and particularly experiences of decriminalisation.
While decriminalisation is an overdue and necessary part of the modernisation of health care, it does not – of itself – guarantee equitable access to services. Indeed, access to services for some has worsened in the period since decriminalisation. As Parsons and Romanis succinctly observe, ‘Framing matters, but access matters more’. This raises questions about the role and limits of law, not just in the direct regulation of services, but in shaping health outcomes more generally. Our analysis explores this, contributing to the growing body of work that seeks to position law within the Social Determinants of Health (SHD) framework. This work has sought to address the situation whereby law can have a profound effect on health – both for good and ill – yet it remains ‘underutilised and poorly understood’ within the wider public health enterprise.