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Criminalising abortion is a dangerous move

The prosecution of a woman in Queensland, Australia for procuring her own abortion has serious implications for the health and wellbeing of women seeking terminations, writes Kate Walton.

By now, most Australians will be familiar with the case of young Queensland couple Tegan Leach and Sergie Brennan. This September, Leach, 19, was charged with procuring her own abortion, while Leach’s 21-year-old boyfriend, Brennan, was charged with supplying the drugs used to do so.

If found guilty, Leach and Brennan face a maximum penalty of seven and three years jail-time respectively. The charges Leach and Brennan face hinge on two issues – firstly, that the couple allegedly did not consult a doctor, and secondly, that the drugs, while available from a handful of approved medical providers in Australia, were illegally imported.

Like many others, I was shocked by their case, as well as by the fact that abortion is still technically illegal in most Australian states and territories. Leach made the same decision that thousands of other Australian women make every year – to terminate a pregnancy she did not want and was not ready for.

Many Australian women believe that they have the right to request an abortion on demand. This is not necessarily true. 

State laws

Abortion is a matter of state law in Australia. The ACT became the first jurisdiction to fully legalise abortion in 2002; Victoria followed suit in 2008, with Premier John Brumby stating that the then-laws were “out of step with community sentiment”. Abortion remains criminalised in all other states and territories, although all allow for the procedure to occur when the mother’s life, physical health or mental health is put at risk by her pregnancy. New South Wales, Tasmania, South Australia, West Australia and the Northern Territory additionally permit abortions in cases of rape and foetal defects. NSW and WA also allow terminations to occur for economic and social reasons.

In all jurisdictions except the ACT and Victoria, prior to the inducement of an abortion, providers are required to possess what is called a ‘reasonable belief’ that the continuation of the pregnancy would endanger the mother’s health or well-being. This means that the provider in question can be criminally charged with inducing an abortion if they do not hold a reasonable belief, or if this belief cannot be proved.

Despite legal restrictions, tens of thousands of Australian women obtain abortions every year, although statistics are hard to confirm. The reality is that women will desire to obtain abortions regardless of the law. The prospect of an early end to education, an inability to work, abandonment by their partner, social stigmatisation for being a single mother, or a future based on financial insecurity means that, when faced with an unintended pregnancy, many women will see abortion as the only real option available to them.

At the very least, governments must permit abortion to be carried out when the mother’s life is put at risk by her pregnancy. However, all women whose health or well-being – including financial, psychological and social well-being – will be put at risk by a pregnancy have the right to seek and obtain information and treatment that decreases or minimises those risks. This includes abortion.

Forcing abortion underground 

If women cannot obtain abortions through legal, safe, official channels, many will turn to clandestine methods. A woman in this position may attempt to perform the abortion herself, or she may find an illegal provider. In either case, the abortion is likely to be unsafe – that is, it will be performed in an unhygienic location using methods that pose serious danger to the woman.

These methods can include taking large amounts of pharmaceutical medicine, drinking herbal medicine or bleach, heavy massaging of the stomach, jumping from rooves or the tops of flights of stairs, or inserting foreign objects such as coat-hangers or chicken wire into the vagina or uterus.

All of these methods can result in serious complications, including haemorrhage and septic infection. On the other hand, abortions performed by skilled professionals within the first three months of pregnancy pose no more threat to a woman than carrying a pregnancy to term does. 

Abortion figures

Criminalising abortion does not have an effect on the instance of abortion. All it serves to do is to push abortion underground, to make it less affordable, and to make it less safe. 210 million women become pregnant around the world every year.

It is estimated that one in five pregnancies end in abortion; half of these are thought to be unsafe. Globally, these abortions result in 68,000 maternal deaths; an additional five million women will be hospitalised due to complications. Unsafe abortions tend to be performed in countries where the termination of pregnancies is illegal or severely restricted. In the developing world, where abortion is generally illegal, 55% of abortions are thought to be unsafe; in the developed world, only 8% of abortions are unsafe.

Statistics from around the world show that legalising abortion makes the procedure safer. This is because the vast majority of illegal abortions are performed by the women herself or by an unskilled provider, generally using dangerous methods.

In Romania, for example, following the criminalisation of abortion and the prohibition of imported contraceptives in 1966, the abortion rate increased six-fold. Since the reversal of those rulings in 1989, the number of abortions performed annually has fallen from 992,000 in 1990 to under 150,000 in 2006.

In comparison, Nicaragua recently prohibited abortion even in cases where the mother’s life is at risk. Maternal death rates and teenage suicides have since increased noticeably. Evidence like this puts forward a strong case for the legalisation of abortion and the widespread provision of contraception.

Criminalising abortion does not result in the cessation of the procedure, nor does it reduce the number of abortions performed. While statistics are sketchy, tens of thousands of abortions are performed in Australia every year in spite of its criminal status. This is because the law is rarely enforced. Leach and Brennan’s case has caused such debate for precisely this reason. Abortion prosecutions are extremely unusual, and until now, this has meant that providers were largely unconcerned with the possibility of being charged.

Following the prosecution of Leach and Brennan, however, some Queensland insurers began withdrawing their support for abortion providers because of the possibility of legal charges. This in turn led to a number of hospitals stopping the provision of abortions – without insurance, many were unwilling to perform terminations in case of patient-initiated legal action. Tens of women have already been forced to travel interstate to obtain abortions.

 This chain of events shows how easily a woman’s access to abortion can end. Yet it is clear that women will seek abortions regardless of their legal status. By keeping abortion criminalised, it increases cost, decreases safety, and reduces the number of practitioners willing to provide the service. If they cannot procure an abortion in their own state, more and more women will be required to travel interstate to obtain a termination. If they are unable to do so, women will inevitably turn to unsafe methods and unskilled providers.

The right to choose

The majority of Australians support a woman’s right to obtain an abortion. A survey released in October this year showed that 57% of Australians believe women should be able to obtain abortions “readily when they want one”. Only 4% of those surveyed opposed abortion outright.

This is in stark contrast to 20years ago, when just 38% of Australians supported a woman’s unrestricted right to abortion. This is a clear indication that Australia’s states and territories would do well to re-examine their laws regarding abortion.

Abortion should be included under each state or territory’s Health Act, rather than the Criminal Code. This would allow for better regulation of both the procedure and the providers of the procedure, as well as guaranteeing the availability of pre- and post-abortion counselling. It would also ensure that no women would be vulnerable to prosecution for obtaining an abortion, and would keep providers safe from the threat of unnecessary legal liability. The current laws protect neither doctors nor their patients.

Abortion is never a desirable outcome. Certainly, more focus should be placed on preventing unintended and unwanted pregnancies in the first place. However, even when contraception is widely-available, easily-accessible and affordable, unintended pregnancies will still occur for a variety of reasons.

These may include contraceptive failure, contraceptive misuse, and rape. Gender inequality and unequal power relations between men and women also have a serious effect on the likelihood of unintended pregnancy. These factors ultimately mean that, should they desire one, all women must be able to obtain a legal and safe abortion.

The decision to procure an abortion should remain a private matter, one to be discussed by the woman with her partner and her doctor. In order to ensure this is possible, moves must be made to decriminalise abortion across Australia.

The fact that prosecutions are rarely carried out is irrelevant; the fact that there is always the possibility that they could be carried out is what must be considered. Procuring an abortion should not be a criminal activity – indeed, the majority of Australians do not view it as such – and the law must come to recognise this.

Kate Walton is used to identifying herself as a student, but as of November 1, she can do so no longer. She has just finished writing her Honours thesis on the reproductive rights of young women in post-Suharto Indonesia, and is currently contemplating her future. Kate is an aspiring (photo)journalist and plans to spend 2010 travelling overseas and volunteering in Southeast Asia. She blogs here and Twitters here.


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