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The Road to Decriminalisation
ABORTION LAW AND PRACTICE IN SOUTH AUSTRALIA EXPLAINED
The Road to Decriminalisation: Image
In 1969, South Australia became the first state to legalise medical termination of pregnancy. In the 50 years following, South Australia’s abortion laws have not been altered. This changed on the 2nd of March 2021 at 2am, when the Termination of Pregnancy Act passed in the South Australian Parliament’s Legislative Council with 29 in favour and 15 against. This marked the end of a decades long debate and stalemate on abortion care in South Australia.
When the bill passed, the gallery was full. Abortion care advocate and South Australian Abortion Action Coalition (SAAAC) member Catherine Kevin sat shoulder to shoulder with other advocates and healthcare professionals, feeling apprehensive. As the amendments to the bill were read out, she heard murmurs among the crowds. “Oh, that’s great!” “we already do that anyway,” “we can work with that”. Looking back on the event, she recalled a sense of relief hearing these statements whispered amongst colleagues.
For Catherine, this moment was the culmination of years of work, finally coming to fruition. The SAAAC was formed in 2015, by Catherine Kevin, Barbara Baird, and Brigid Coomb, with the initial aim of educating the government along with the public on the issues surrounding abortion. The organisation then set its sights on radically changing the narrative on abortion by making it a healthcare issue rather than a criminal one. Above all, their main goal was the decriminalisation of abortion in South Australia without compromising the quality of care women already received.
The Road to Decriminalisation: Text
While legislation in South Australia had not changed in 50 years, abortion care and the medical profession had, meaning the law had created a barrier to safe and accessible health care. The law prior to reform, legalised abortion in South Australia when necessary to protect the physical or mental health of the woman, taking into account the current and foreseeable future. The abortion had to be performed before 28 weeks gestation, at a prescribed hospital, with the procedure approved by two physicians, and the recipient had to have been a South Australian resident for at least two months. These regulations excluded new foreign arrivals and refugees from abortion care. Likewise, approval by two physicians placed the decision of pregnancy termination, not with the woman seeking it, but with the medical practitioners administering it.
At no time were these barriers brought into sharper focus than during the COVID-19 pandemic. The 1969 era regulations stipulated that women could only access abortions from prescribed hospitals; a clause that made sense when the law was enacted. Yet with 2020’s COVID-19 lockdowns, rural and regional women were caused considerable stress in accessing abortion care. Most prescribed hospitals were located in and around Adelaide metro, limiting accessibility of abortion care to those living close to the city. On top of travel requirements for regional women, South Australia had not legalised the dispensation of early intervention medical abortions via telehealth and mail. So, while in other states, medically induced early abortions could be delivered remotely, rural and regional South Australian women were travelling to prescribed hospitals to take the two pills necessary for the abortion.
This issue was, in part, why Rural Liberal member Nicola Centofanti voted against the act. It wasn’t because she didn’t believe in abortion care access, indeed it was quite the opposite. Her concern was that instead of investing in regional health services, the bill would prioritise convenience by allowing registered medical practitioners to prescribe abortion medication, allowing women to terminate their pregnancies at home. In her words, “I do not believe there are appropriate safeguards in place to ensure women’s safety for early-term medical abortions”. While not in complete opposition with the notion of at home early terminations, in Nicola’s eyes, it is important that legislators be measured and considered in the reviewing of legislation, and that only alterations that are necessary be made.
The Road to Decriminalisation: Text
Early versions of the Termination of Pregnancy Bill proposed the removal of an upper gestational limit for abortions, which very quickly became a hot button issue throughout the debate. Those on the against side, like Nicola, were concerned about the legality of allowing abortions to be carried out up until birth. The SAAAC were firmly for the removal of such limits. They cited leading health bodies such as the Royal Australian and New Zealand College of Obstetricians and Gynaecologists, stating that when legislation prescribes different laws for different states of pregnancy, it takes away some of the health professionals’ power to treat patients individually and make appropriate decisions in the best interest of that patient. Crucially, however, while the Termination of Pregnancy Act lowered the gestational limit to 22 weeks and 6 days, no reason, be it mental or physical, needs to be given for a South Australian woman to access abortion care. After this time, there must be further medical advice sought before a late term abortion can be performed.
Prior to the passing of the Termination of Pregnancy Bill, there were other efforts to change the legislation. In February of 1988, a private member’s bill was introduced to the Legislative Council in the South Australian Parliament, seeking to further restrict access to abortion. Most importantly, the bill sought to require a woman to undergo a psychiatric evaluation if the abortion was required on mental health grounds. This bill was narrowly defeated in March 1988.
Abortion law reform in the 2010’s, however, saw cross party support from the start. Greens’ member Tammy Franks brought a private member’s bill focusing on abortion law reform to the Attorney-General in December 2018, placing it firmly on the South Australian political agenda. The SAAAC began its formal campaign a few months prior, by sending letters to MPs urging them to take action on the issue. In February of 2019, the Attorney-General commissioned the South Australian Law Reform Institute (SARLI) to inquire into abortion law reform. This inquiry had the specific aim of modernising South Australian abortion law and considering best practice for lawful regulation of pregnancy termination. The report was presented to the Attorney-General on October 31st, 2019. SARLI made 66 recommendations and most importantly suggested that abortion be removed from the criminal code and treated not as a crime but as a public health issue. The bill would not pass in the Legislative Council until December 2020, before going to the House of Assembly. After much debate, the act would pass in the lower house in February of 2021, before finally being brought into law in March of 2021, once again passing in the Legislative Council. The bill was supported by prominent figures such as Nat Cook of the Labor Party, Michelle Lesink of the Liberal Party, as well as by the Attorney-General herself Vickie Chapman.
The Road to Decriminalisation: Text
In the vote of the Termination of Pregnancy Bill, members of the South Australian Parliament were allowed a conscience vote, meaning the members were not obliged to follow party lines; instead, they were able to vote according to their own moral, political, religious, or social beliefs. Often, issue such as abortions, euthanasia, or capital punishment do not have a definitive policy within the party and the beliefs of members can be wide and varied. Conscience voting not only alleviates party pressure from the shoulders of members, but it can also diffuse tensions within the party room.
The final bill that was eventually passed was, in Catherine’s eyes, too complex. Her mission, and the mission of the SAAAC, was to see the simplest bill passed possible. For abortion to be moved out of the South Australian criminal code and treated as a health issue, without compromising the care already available.
The Termination of Pregnancy Act 2021 passed in March, to much fanfare. Previous to the 2021 act, if a South Australian woman wanted to terminate their pregnancy, she had to explicitly state that carrying the pregnancy to term would be detrimental to her mental or physical health. Now, no reason must be given, and autonomy has been placed back in the hands of the women in need of abortion care. While the threat of arrest was minimal prior to this, unequivocally, the passing of this bill has improved the quality of abortion care in South Australia for the foreseeable future.
The Road to Decriminalisation: Text
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