Reproductive rights, abortion & Zoe’s law: Why freedom of choice is still feminism’s biggest fight | Women's Agenda

Reproductive rights, abortion & Zoe’s law: Why freedom of choice is still feminism’s biggest fight

Women’s reproductive rights are still a subject of debate in Australia, and indeed across the world, particularly in light of a series of significant legal reforms.

Recently in Australia, Victoria and Tasmania have joined the states and nations across the world that entirely decriminalised abortion, endowing women with both the legal and practical right to choose whether or not to continue a pregnancy.

But reproductive rights reform has not always been – indeed still isn’t – a linear trajectory towards greater self-determination for women.

In the United States, many states have recently enacted foeticide laws, allowing courts to convict women for harm to their own foetus during pregnancy. Most recently, an Indiana woman named Purvi Patel was sentenced to twenty years in prison when she went into early labour and subsequently lost her child.

Reproductive rights may not be wholly moving forward in Australia, either. The state parliament in NSW has, for two years, been attempting to pass a bill that would fundamentally change the state’s reproductive rights law. The bill, called Zoe’s Law, creates legal personhood for an unborn child at or over 20 weeks gestation. If this bill were passed, it may leave open the possibility of a mother being punished for her treatment of her own foetus, given the woman and the unborn child would legally be considered two separate entities.

The bill has been introduced to NSW parliament twice and has not yet been passed. It is expected that the bill may be reintroduced in the upcoming parliamentary session.

In light of this proposed reform and the questions raised by Patel’s sentencing in Indiana, we thought we would ask some questions about reproductive rights. Why are they so important? Are they being eroded? Is it possible that a sentence like Patel’s could ever be handed to an Australian woman?

To answer these questions, Women’s Agenda consulted three experts – health and reproductive rights lawyer Julie Hamblin, legal and political scholar Dr Kate Gleeson, and principal solicitor and CEO of Women’s Legal Service Tasmania Susan Fahey.

What are reproductive rights and why are they important?

At their narrowest level, reproductive rights exist to protect a woman’s self-determination and autonomy over her body and her health when it comes to having children, starting a family or protecting herself against sexually transmitted disease. Broadly, the state of a society’s reproductive rights for women also affects their autonomy over their economic, social, family and professional lives. These rights are aimed to provide a woman complete control over the decisions she makes about her body, her health and her life. The most important reproductive rights – and the most contentious – are a woman’s right to an abortion and a woman’s right to birth control.

Historically, many societies have been slow to enact and uphold women’s reproductive rights. So slow, in some cases, that they still have not reached even basic levels of protection for these rights. The growth of reproductive rights for women, beginning with landmarks such as the invention of the contraceptive pill, necessitated a shift away from ideas about male control of family life and of women’s sexual lives. The right to end male control of these issues was hard won.

Women’s autonomy and self-determination has been fought for in many different arenas throughout history – the right to vote, the right to divorce, the right to be represented in parliament. In large part, many of the battles of a woman’s control of her life have been fought and won. Reproductive rights are among very few autonomy-related rights that are still in contention. In this way, the struggle for reproductive autonomy is hugely significant.

As Dr Kate Gleeson told Women’s Agenda, “the central question of reproductive rights is control. They are about women’s autonomy to choose what happens to their body and health”. As CEO and principal solicitor of Women’s Legal Tasmania Susan Fahey explained, “this is one of the only legal issues that is constantly, reliably under attack. The onslaught has never faltered”.

The right to abortion – a woman’s right to choose whether or not to continue a pregnancy – remains the most important issue for reproductive rights, in Australia and around the world. The right to an abortion protects women from being made to carry a child they cannot raise, for economic, social, psychological or health-related reasons. It also protects women who have fallen pregnant as a result of violence and abuse. It also simply protects the right of a woman to decide whether or not she is ready and willing to have a child.

So where are we at with reproductive rights in Australia?

In Australia, the states and territories have markedly different levels of protection when it comes to reproductive rights. Women’s reproductive rights are best protected in Tasmania, following a recent campaign to overhaul abortion law. Tasmania has decriminalised abortion entirely and enacted 150 metre exclusion zones around abortion clinics, within which space it is unlawful to protest abortion or harass a woman using the clinic. 

Victoria comes in at a close second, having also decriminalised abortion but having not enacted protections for women seeking abortions. NSW and Queensland are far behind – in both states, abortion, while accessible, is technically illegal and still written into each state’s criminal code.

This is a source of confusion for many – women can technically access abortions in NSW, so how is it possible that it is illegal?

“NSW is one of only two states that has not amended its abortion law, which dates back 100 years or more. In NSW, abortion is still a crime – both for the woman undergoing it and for the doctor performing it. The Crimes Act does not specify in which circumstances an abortion is lawful or unlawful, so this must be determined by the courts,” Sydney health lawyer and reproductive rights specialist Julie Hamblin explained to Women’s Agenda.

Whosoever, being a woman with child, unlawfully administers to herself any drug or noxious thing, or unlawfully uses any instrument or other means, with intent in any such case to procure her miscarriage, shall be liable to imprisonment for ten years.

These are the words currently governing abortion in the NSW Crimes Act. They state that unlawful abortion may result in imprisonment, but does not specify how the legality of an abortion is determined. This has thus been determined by the courts over the years and, in general, judges have set precedents allowing abortion to be lawful as long as the doctor has a reasonable belief that continuing the pregnancy would have a negative physical or psychological impact on the mother.

These precedents allow abortion to be accessible, at least in theory, in NSW. But the technical illegality still poses significant barriers.

“The legality of abortion must be determined by each individual judge in each individual case – there is no certainty for any woman in NSW that she will not be prosecuted for having an abortion,” Hamblin explained.

“Worse still, judges must determine the legality of an abortion based on the reasonable belief of the doctor that doing so is in the best interests of the woman – legally, the woman’s beliefs about her body and health are irrelevant. This is a deeply unsatisfactory legal position when it comes to women’s reproductive rights.”

Many legal and medical academics believe abortion should be decriminalised in NSW and its lawfulness explicitly protected by the Crimes Act to eliminate this uncertainty.

While this may seem like a technicality, and that in practice women do have access to abortions even under laws like this, legal experts say this is not always the case.

“We’ve seen so many women who sought medical advice when they fell pregnant and were told by pro-life doctors that abortion is illegal. These doctors did not specify that there are circumstances in which a judge can determine it is legal, so the women assumed their only choices were to have the child or face going to gaol,” Fahey told Women’s Agenda.

“Practically, yes, some women have access to abortion in NSW. But only if they have enough disposable income and access to a clinic – this excludes many, many women of lower socio economic states and women living in rural NSW,” Hamblin said.

Because of abortion’s place in NSW’s criminal code, it is not performed in public hospitals. For this reason and many others, Hamblin says abortion will never be free of stigma until is it entirely decriminalised.

“The taint of criminality is a significant problem for the autonomy and self-determination of NSW women,” she said.

So will NSW decriminalise abortion? It’s hard to tell, but all three lawyers that Women’s Agenda consulted for this article believed it is inevitable that abortion will be decriminalised at some stage in the future.

“We know that in NSW most people agree that a woman should have safe, affordable access to abortion when she needs it. So we have a law that is out of step with the majority public opinion, and we have a very vocal minority winning out when it comes to abortion law. As in any pluralist society, eventually our law and policy will reform to favour the majority opinion rather than the minority,” Hamblin said.

If lawyers and doctors are pushing for decriminalisation, where does Zoe’s Law fit in?

Zoe’s Law does not directly refer to or influence abortion law – it merely allows courts to prosecute harm done to a foetus by creating legal personhood for that foetus.

However, as Hamblin explains, “if a foetus becomes a legal entity, that is very powerful evidence for judges to consider when making a decision about the lawfulness of an abortion.”

“Supporters of Zoe’s Law say the bill will not affect abortion, but enacting legal personhood for a foetus in the context of our vague legislation about the legality of abortion is dangerous”.

Hamblin and Fahey agreed that in this context, Zoe’s Law could have numerous damaging consequences – intended or otherwise – for women’s reproductive autonomy in NSW.

The passing of Zoe’s Law would also place a powerful – perhaps definitive – roadblock in the path towards decriminalisation. As Hamblin explains, if NSW enacted Zoe’s Law and created legal personhood for a foetus and then subsequently decriminalised abortion, this would amount to legislating murder.

Fahey says it is crucial that NSW law moves in the direction of progress, as Tasmania’s has, rather than regress towards greater external control of women’s bodies.

“Tasmania’s new abortion laws doesn’t make abortion compulsory, we are not forcing it on anyone, we have simply legislated the right to choose and the right to the freedom of that choice,” she explained.

She and Hamblin both agreed that decriminalision would not only protect individual women from potential prosecution, but it would lead to great strides in terms of ending the stigma around abortion. Zoe’s Law, on the other hand, may do the opposite on both counts.

Foetal personhood is the legal principle that underpins the United States foeticide laws – the ones which led to women like Purvi Patel being sentenced to twenty years in prison for her foetus’s death. Could Zoe’s Law open NSW up to this possibility? All three lawyers consulted by Women’s Agenda said it is unlikely – they agreed it is too difficult to compare the American and Australian legal systems, and that the moral, religious and political values informing abortion law in the US are too strong to be comparable to ours.

However, even if Zoe’s Law is unlikely to result in such an extreme legal situation, the lawyers agreed, it is certainly a step in the wrong direction when it comes to women’s reproductive rights.

What do you think needs to be the next step for women’s reproductive rights? And have you seen this video of Jemima Kirke discussing her own experience of abortion and why she thinks we need to do more to protect a woman’s right to choose?

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