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In May of this year, the Supreme Court of the United States overturned the landmark decision of Roe v Wade 1973, which granted pregnant women the constitutional right to an abortion within the first trimester of pregnancy.

In the case of Dobbs v Jackson Women’s Health Organisation 2022, the Supreme Court of the United States held that the right to decide abortion rights and restrictions belong to the states was not a constitutional issue.

Consequently, it appears that at least 20 American states will move to restrict first trimester abortions.

Protests have since erupted world-wide, including in Australia.

How is the right to abortion governed in Australia?

With conversations pinned on the American right to abortion, it is topical that we as Australians consider our own right and access to safe and legal abortions.

Rule of the state

Abortion has been decriminalised throughout Australia. However, the states and territories each have differing rules and practices concerning the provision of medical care in this area.

The Marie Stopes Institute of Australia has compiled a scorecard ranking the varying levels of abortion access throughout Australia. A copy of this scorecard can be found at the following link:

https://www.mariestopes.org.au/advocacy-policy/abortion-access-scorecard-australia/

The scorecard illustrates how the states deal with differing issues such as whether gestation limits apply, whether abortions can be provided by one doctor, whether they can be accessed without the risk of criminalisation and whether counselling referrals are mandated.

Western Australia and South Australia appear to be the strictest of the states in their offering of safe and legal abortions.

In WA, the right to an abortion is governed by the Criminal Code 1913 (WA). WA is the only Australian state where abortion has not yet been removed from the Criminal Code.

SA only as recently as 2021 decriminalised abortion and it took near 15 months after that time, for the new legislation to be enacted.

Furthermore, doctors in WA may point blank refuse to provide medical care to those patients seeking to undergo an abortion. Doctors may also refuse to refer that patient on to a medical professional who will terminate a pregnancy. This can occur even in situations where the mother’s life is put at risk by carrying the pregnancy.  The policy reason for this is to ensure that doctors are not required to compromise their own personal beliefs around this.

In SA, doctors may refuse to provide medical advice or treatment related to abortions, however, where there is a life-threatening situation, they must refer on or provide information on where that patient can access care elsewhere.

Can a Roe v Wade scenario happen in Australia?

The implications of the overturning of Roe v Wade are significant. The voices of those who oppose abortion on religious or personal grounds, have been amplified and given a world stage.

Although abortion is indeed legal in all Australian states, it is important to consider the limitations and restrictions placed on those services.

Regional, marginalised and impoverished people are largely disadvantaged in accessing safe and legal abortions in Australia today.

It is not enough that the right to a safe abortion is legislated, if there are minimal medical centres or practices that are willing to offer those services.

Women living in rural towns seeking to terminate a pregnancy are often forced to travel interstate to obtain appropriate medical care and are often left out of pocket by hundreds of dollars.

Not every person has the capability to do so and some are left with little option in this respect.

The decision in Roe v Wade should act as a reminder that a right enshrined in legislation is not always protected.

It is also a timely reminder that we in Australia should not rest on our laurels and that we should continue to fight for equitable protections and the larger provision of safe and affordable healthcare moving forward.

There are some concerns in the United States that this decision is the beginning of a legislative agenda by the Supreme Court to roll back other “rights” that the American people currently enjoy, such as same sex marriage, contraception and inter-racial marriage, to name but a few issues.

It will be very interesting to watch if this is the beginning of a bigger movement away from individual freedoms in the United States.

About the author: This article has been authored by Jacqueline Brown who is a Perth lawyer and director at Lynn & Brown Lawyers. Jacqui has over 20 years’ experience in legal practice and practices in family law, mediation and estate planning. Jacqui is also a Nationally Accredited Mediator and a Notary Public.

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