In 1973 the United States Supreme Court handed down the decision in Roe v Wade 93 S.Ct. 705 (1973) (Roe v Wade). This decision held that the right to privacy arising under the United States (US) Constitution included a woman’s ability to access safe and legal termination of pregnancy. However, the Supreme Court also held that this right could be limited by US states asserting an interest in safeguarding health and maintaining medical standards in relation to pregnancy.
Recently on 15 May 2019, Alabama directly challenged this fifty-year-old decision by passing the HB314 bill (referred to as the Alabama Human Life Protection Act (AHLPA)) into law. The AHLPA seeks to criminalise the performance or attempted performance of an abortion by a medical practitioner. While the AHLPA does not come into force until November 2019, it has been described as the strictest reproductive law the US has seen in decades.
Since its enactment, the AHLPA has met vigorous opposition with both Planned Parenthood of America and the American Civil Liberties Union filing a lawsuit against the AHLPA on behalf of Alabama abortion providers. However, not all disagree with the introduction of the AHLPA with many US pro-life groups supporting its enactment. But are the current laws which govern women’s reproductive rights in New South Wales and South Australia that much different?
Alabama Human Life Protection Act
While New South Wales and South Australia have preserved abortion as a criminal offence, abortion became unenforceable in Alabama when the Supreme Court handed down the decision in Roe v Wade.
While the AHLPA does not make women criminally or civilly liable for seeking an abortion, it limits the circumstances in which women can legally and safely obtain an abortion. In light of this, the passing of AHLPA does several things.
It makes a licensed physician (or osteopathic physician) criminally or civilly liable where they perform or attempt to perform an abortion – except in cases of medical emergencies with “serious health risk” to the mother (excluding “emotional condition[s]” and “mental illness“), or, where:
- The pregnancy is ectopic, that is, where a fertilised egg has implanted or attached outside the uterus or inside the cornu of the uterus.
- There is a lethal anomaly with the foetus, that is, where the child has a condition from which it would die after, or shortly after, birth or be stillborn.
(Section 3(1) “Abortion” AHLPA)
A “serious health risk” is one which necessitates the termination of pregnancy to avoid death or serious risk of “substantial physical impairment of a major bodily function” to the mother. Mental illness or emotional conditions do not qualify as a serious health risk unless the woman is diagnosed (by a qualified psychiatrist) with a serious mental illness which could result in her death or the death of her child, and the termination is medically necessary to avoid such conduct.
The AHLPA also seeks to define the point at which human life begins. Section 3(7) defines a human being as a child, person or “unborn child in utero at any stage of development, regardless of viability”. To legislate the point at which life begins given that “those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus” (Roe v Wade at page 159) is controversial to say the least.
Alabama is not the only state to have recently enacted anti-abortion legislation, with Georgia enacting its own legislation on 7 May 2019 and Texas and Missouri currently considering anti-abortion legislation in their respective jurisdictions.
The Australian position
There are many differences between anti-abortion laws in Alabama and Australia. Australia, unlike the United States, does not have a Bill of Rights, or a constitutional provision or amendment ensuring a woman’s right to terminate her pregnancy. As a result, the law in each state governs the criminality of abortion.
While the majority of Australian states have decriminalised abortion, two Australian states are yet to do so. Both New South Wales and South Australia make both medical professionals and women criminally liable for obtaining or attempting to terminate their pregnancy. This is different to the AHLPA which only makes physicians criminally liable.
In New South Wales, section 82 of the Crimes Act 1900 (NSW) (NSW Act) makes a woman criminally liable where she intends to “procure her miscarriage“, while section 83 of the NSW Act makes any person criminally liable where they intend to “procure [a woman’s] miscarriage“. The prescribed maximum penalty for both offences is 10 years imprisonment.
In South Australia, section 81 of the Criminal Law Consolidation Act 1935 (SA) (SA Act) is drafted in similar terms to the NSW Act and attracts a prescribed maximum penalty of life imprisonment. While the prescribed maximum penalty for any person “who [knowingly and] unlawfully supplies or procures” the miscarriage of any woman with intent is liable to imprisonment for no more than three years (section 82 of the SA Act).
The difference between New South Wales and South Australian legislation is that South Australia, like Alabama, provides statutory exceptions to the offence, while New South Wales relies on exceptions developed by the common law.
Section 82A of the SA Act provides for exceptions to the offence including, where the continuation of pregnancy would involve greater risk to the woman’s life, physical or mental health or where there is a substantial risk that the child would be born with physical or mental abnormalities as to be seriously handicapped. These exceptions do not apply to women who have not resided in South Australia for at least two months before termination.
In New South Wales an exception to the offence lies in whether an abortion was performed lawfully. What lawfully means is not defined by the Act; it is defined by the common law as something necessary to preserve a pregnant woman from serious danger to her life, or physical or mental health that continuing the pregnancy would involve (R v Wald (1971) 3 DCR (NSW)). Such dangers are not the normal dangers of pregnancy and childbirth.
Notwithstanding the limited exceptions in New South Wales and South Australia, the exceptions are broader than those currently contained in the AHLPA. Moreover, neither Australian jurisdiction attempts to define at what point a human life begins during pregnancy as the AHLPA does.
So, does Australia or Alabama have the stricter abortion legislation?
It is clear there exists a stark difference between anti-abortion legislation in Australia and Alabama. While the effect of the laws in both jurisdictions limit the ability of women to access abortion services, the current law in New South Wales and South Australia is arguably more severe than Alabama as it holds women criminally liable. However, those laws are a product of a bygone era which, given their minority status in Australia as the only states left to decriminalise abortion, has all but passed.
Comparatively, the AHLPA was passed in 2019 with a view to challenge the decision in Roe v Wade and define the difficult question: at which point does life begin? Moreover, the social trend in the US with other states such as Georgia, Texas and Missouri enacting or considering enacting anti-abortion legislation contrasts with the move toward decriminalisation in Australia. In light of this, those recently passed laws in Alabama, while not as severe in their current legislative form, may arguably have a far wider consequence to women’s reproductive rights in their enactment.
Interested in the latest developments on abortion laws in Australia? Head over to my Legal Insight article on a recent challenge to the validity of safe access zones around abortion clinics.