August 2022


The fight to choose

By Sarah Krasnostein
Demonstrating for reproductive rights at Hyde Park, Sydney, June 9, 2019

Demonstrating for reproductive rights at Hyde Park, Sydney, June 9, 2019. © Lisa Maree Williams / Getty Images

As Roe v Wade is overturned in the United States, what are the threats to accessing abortion in Australia?

Fifty years before this article went to print, another appeared in The Canberra Times reviewing a memoir by Dr Bertram Wainer, founder of the then new Fertility Control Clinic, the country’s first clinic to openly offer abortion. Wainer’s memoir documented his calling, which arose in 1967 when a patient presented at his practice haemorrhaging after an illegal abortion.

He couldn’t write about repressive abortion laws without writing about the longstanding, systemic police corruption of backyard abortion rackets. “And for Wainer,” the reviewer wrote, “it is a truism that corruption in a police force is impossible without corruption in the politicians to whom that force is responsible.” One sign that Wainer was on the right track was the smear campaign, which had been sufficiently effective for the reviewer to admit shame at his surprise on finding the “lion-hearted” doctor to be “the antithesis of all the craven suggestions that the papers had been peddling”. “It is dispiriting to know,” the review continued, “that it is only historians, a couple of generations hence, unthreatened by libel laws and today’s protected policemen, who will be able to get to the bottom of the whole disgraceful business.”

Unlike his wife, Dr Jo Wainer, founding secretary of the Abortion Law Reform Association and now retired academic, Bertram didn’t live to see the decriminalisation of abortion in Australian states or its post Roe v Wade recriminalisation in American states, aided by two justices credibly accused of abusive behaviour towards women. Five decades of experience, however, has given Jo the long view.

“When I was deeply immersed in the abortion struggle,” she says to me, “I dived as deep as I could get into, ‘What’s the genesis of this? Why does someone who doesn’t know me care what I do with my reproductive decisions?’ I came up with two things. They’re likely to still be primary motives. The first is because control of women’s fertility is a necessary, if not sufficient, condition to conscripting women’s labour to the masculine enterprise. The other is that women are held accountable for male sexuality.”

Wainer has followed the recent developments in the United States with dismay. “I was very taken with one of the Republican women saying that women know how to avoid ejaculation into their vaginas. It’s a statement that directly reflects the idea that it is women’s task to constrain male behaviour around sexuality. And the way in which you can persuade women to take on this unenviable task is to terrorise them with the consequences of failure. Because we know without any question of doubt that repressive laws do not stop abortion. They just terrorise women and cause incalculable harm. That’s not a byproduct. That’s a deliberate outcome.”

As the backyard trade demonstrated for decades, criminalisation doesn’t prevent abortions, it just makes them unsafe by forcing them to be carried out in ways that don’t conform to medical standards. Data indicates a statistically insignificant difference in abortion rates between countries that prohibit it absolutely or allow it strictly to save a woman’s life, and countries that broadly allow it. Unsafe abortions, however, are the third leading cause of maternal deaths worldwide and responsible for five million preventable disabilities, according to the World Health Organization.

Available data indicates that one-third of Australian women experience an unplanned pregnancy. Approximately 20 to 25 per cent of Australian women of reproductive age have an abortion in their lifetime. Wainer, who edited a book of collected testimonies about illegal abortions, is a living encyclopaedia of the suffering caused by criminalisation. Details she carries include the wills women would write before having an illegal abortion “because they had a reasonable expectation of dying”. Also, the low expectations of marital harmony expressed by many she interviewed: “I remember a woman saying, ‘I’m in a happy marriage because my husband doesn’t beat me.’

“I’m watching the US with great interest because once the genie is out of the bottle – once you educate women – you can’t stuff the genie back in, you cannot make her unknow what she’s learnt. I think this attempt to suppress women’s autonomy is going to fail. There will be a mighty battle.”

In theory, you can access a termination in Australia after consulting with a doctor, but specific restrictions apply depending on where you live. Before 2008, for instance, the provisions determining the lawfulness of abortion in Victoria were part of the Crimes Act, and were largely governed by a judicial interpretation of a 19th-century British criminal offence. Now, under the Health Act, the patient decides until 24 weeks, after which two doctors must agree that an abortion is appropriate in all the circumstances. In New South Wales and Queensland, the patient decides up to 22 weeks, and then the decision is similarly referred to two doctors to decide on the basis of specified considerations. In the Australian Capital Territory, abortions are legal with no time limit. In Tasmania, the patient decides until 16 weeks, after which two doctors must agree it is appropriate in all the circumstances. In the Northern Territory, until 24 weeks, a doctor must consider the abortion appropriate; after that gestation two doctors must agree. In Western Australia, where abortion remains in the Criminal Code, it is available up to 20 weeks, however a patient must first see a doctor who provides “counselling” and refers them to further counselling, before seeing a different doctor who will perform the abortion. Such procedures are treated as exceptions to the abortion offence. In South Australia, the patient decides until 22 weeks and six days, though a doctor is required to provide information about counselling. After this gestation, two doctors must decide if it is appropriate in all the circumstances. Those circumstances are framed more restrictively than in states like Victoria, Queensland and NSW.

Additionally, NSW, Victoria, ACT, Queensland and NT have legislated safe zones around clinics to prevent protesters from harassing patients accessing abortions. These laws survived a High Court challenge in 2018 by anti-abortion activists John Graham Preston, who had been fined after flying to Hobart to protest outside a clinic, and Kathy Clubb, a member of anti-abortion group Helpers of God’s Precious Infants and mother of 13.

Nationally, medical abortion – orally taking mifepristone (RU486) and misoprostol to end pregnancy – is available until nine weeks’ gestation. If you meet specified requirements, you can be safely and effectively guided through the procedure at home over the telephone. Cost depends on whether an abortion is medical or surgical, the gestational stage, and whether you go public or private. The Women’s Clinic Victoria charges a minimum of $250 for medical abortion and $400 for surgical. Similarly, at NSW’s Clinic 66 the out-of-pocket cost for a surgical abortion under 12 weeks, with Medicare, is around $470. (Australia’s median weekly rent is $508.)

It is difficult to accurately state the number of abortions in Australia annually because “most states do not routinely report abortion data”, as Louise Keogh, Lyle Gurrin and Patricia Moore observed in The Medical Journal of Australia in 2021. This lack of routine, anonymised data collection – otherwise common in medical practice and necessary for the evaluation of service delivery – is an eloquent absence. Their study, however, indicated that during 2017–18, the total number of abortions was just over 88,000, which worked out to about 17 abortions per 1000 women aged 15 to 44.

Abortion reform didn’t end with decriminalisation. Wainer explains that the major problem concerns access, which varies depending on where one lives and who is in charge. “I’m mindful of stories of young interns in rural hospitals being told, ‘You’ll get girls coming in asking for abortions – just tell them we don’t do that here.’

“Doctors bring their culture with them,” she continues. “Even doctors who don’t hold religious or moral opposition to abortion may not be comfortable being known as providers. But most towns have only one or two doctors, if any. That’s why the pathway for doctors to prescribe [medical abortions] needs to be much easier and more strongly supported. Health services need the support of their communities, but in particular the support of departments of health and politicians saying, ‘We expect this of you. It is part of your responsibilities.’”

Even before the pandemic, abortion access in Australia was “a postcode lottery”, says Bonney Corbin, of Marie Stopes International. There remain “abortion deserts” around the nation. Access problems are compounded for those on lower incomes, those in rural areas, those on temporary visas without Medicare, and Indigenous women and trans and non-binary people who may not have experienced culturally safe care from a town’s only medical practice. Your location, and the social and financial means at your disposal, can be the difference between an early or later-term abortion, or, in the worst case, forced birth.

Theoretically, medical abortion prescribed by a general practitioner increases access. However, it is not included in GP training in reproductive health. Instead, GPs opt to become registered prescribers by doing a course in their own time. Dr Louise Manning, chair of the Rural Doctors Association of Victoria Maternity Working Group, recently noted that only 2850 of Australia’s 41,000 GPs are registered to prescribe medical terminations, “and with not all public regional health services offering regular surgical lists, timely surgical termination services are out of reach for many rural Victorian women”. Viewed alongside the shortage of doctors in rural Australia, it’s hard to feel optimistic about the National Women’s Health Strategy goal of equitable access to pregnancy termination services by 2030.

Professor Danielle Mazza, head of the Department of General Practice at Monash University, explains that, for the majority of GPs, medical abortion “is not part of the fabric of general practice. We need to change the culture of general practice to recognise that this is part of women’s healthcare service delivery. In addition to integrating medical abortion into a primary care setting, we also need to deregulate it as part of reducing the barriers and stigma that surround it.” The fact that training about medical abortion remains hived off from the curriculum is, Mazza says, a legacy of the political context in which it was introduced.

We cannot talk about medical abortion without talking about its obstruction in 1996, when independent federal senator Brian Harradine made a deal with the Howard government to support the privatisation of Telstra in exchange for empowering the then health minister, Tony Abbott, to veto the importation, manufacture and use of mifepristone. That power took more than a decade to overturn, with mifepristone being approved for commercial importation only in 2012 and listed on the Pharmaceutical Benefits Scheme in 2013, significantly later than comparable countries. Sequelae of this self-serving, concocted moral panic include continuing problems with access and stigma. Obstetricians and gynaecologists – who, even if they don’t perform abortions, use mifepristone routinely in treating miscarriages – are still required to register before they can become prescribers.

“We still have quite precarious provision of it in Australia,” Mazza says. “We have a WHO guideline calling for self-management of medical abortion. We have excellent evidence of the safety and efficacy of the product elsewhere where restrictions were lifted. Yet the process remains highly regulated.”

Wainer, who remembers when a dearth of willing doctors led to women teaching themselves to perform abortions, emphasises that access cannot depend on individuals. “There has to be systemic support so that everybody is not just authorised but expected to make this a routine part of practice.”

Before 2013, abortion was not separately specified as part of the Royal Australian and New Zealand College of Obstetricians and Gynaecologists curriculum. Some practitioners understood this as a function of the fact that the technical skills required to manage an early nonviable pregnancy or miscarriage are directly transferrable to abortion at the same gestation.

“I didn’t get taught anything about terminations,” said a surgical provider who studied before the curriculum was amended. They learnt skills for later-term abortions via the apprentice model, a norm for certain surgical skills. “Now I think the training is absolutely adequate but provision is the problem.”

A mandatory abortion module is now included in the RANZCOG curriculum, which covers surgical and medical procedures. It is mainly focused on early-term abortions, which constitute the majority of abortions. For later-term skills, the scarcity of public hospitals providing abortion services, and therefore apprenticeship opportunities, means there is a training gap.

“The way in which governments commission faith-based hospitals to provide care and training – it’s paid for by taxpayers, yet service provision is incomplete,” says a metropolitan provider. In most jurisdictions, the law requires clinicians who object to performing abortions to refer patients to a provider who doesn’t. However, the lack of providers means that the path forward for many patients is not reliably clear or accessible.

“There’s no state except for SA where the public sector has taken responsibility for delivering the full range of reproductive healthcare,” Wainer says. Perhaps if you grew up within the Christian faith these hospital names appear neutral in a country with socialised medicine: St Vincent’s, St Joseph’s, St Andrew’s, St John of God. Outsourcing to church-based organisations is, as Wainer puts it, “a hangover” from a time before public services. “Much harm has been caused by it. But the biggest concern is how embedded the churches are in the provision of education and the fact that we have Catholic universities providing medical and nursing degrees.”

Census data shows a decline in Australians identifying as religious generally, and Christian specifically. “For as long as I’ve been involved,” Wainer says, “we’ve had somewhere around 10 to 11 per cent who say abortion is a significant issue for them and they oppose it on religious grounds. That’s a core group but they’ve had undue influence and the Liberal Party seems particularly susceptible. They’re legacy forces and when we have a hand-waving, Hillsong Christian prime minister, then they’re activated and given access.”

It’s not just men driving the anti-abortion agenda. “Women too want to conscript women’s labour to the masculine enterprise,” she continues, “and the question which I’m not prepared to research is: ‘What sort of society do you want? What would it look like if you got everything you wanted? Will it be Handmaid’s Tale or another version of women at home cooking and making children?’”

“My role is National director for politics,” explains Wendy Francis, of the Australian Christian Lobby, over Zoom from Canberra where she landed that morning. “In that role I’m lobbying politicians, but I also work with other organisations. The role of the ACL is to see the Christian perspective represented in the public space. So we lobby politicians on issues that perhaps other people don’t.”

Abortion legislation “tends to be a bit of a barbecue stopper”, she explains, “but it’s important to be able to discuss things we don’t necessarily agree on. I have good friends who are radical feminists, so they see things from a very different perspective than I do coming from a faith perspective. But also I’m coming from the perspective of seeing the damage that abortion has done to some friends of mine, so it’s a personal perspective as well. What I would always try to do, and what I believe you always can do, is find common ground.

“So,” she continues, “with my rad fem friends, we laugh and say we don’t go near abortion or marriage. We just don’t talk about them. But if we did, we’d be able to agree that the practice of sex selection abortion primarily affects girl babies and so therefore it is discrimination.”

In a lecture I once gave on abortion law reform, a student asked me, rhetorically, why anyone would have a late-term abortion. Here are the answers I gave: those too young to know the signs; those too traumatised to confirm the pregnancy because it resulted from rape, incest; those who’ve received information about foetal abnormalities that can only be confirmed after the first trimester; those who’ve received devastating diagnoses about their own health; those whose circumstances have changed in ways that were never imagined. You don’t have to agree with any of it. The pro-choice position, like democracy itself, rests on the equal right of autonomous individuals to determine the course of their own lives.

“I think that the majority of people who would oppose where I’m coming from … they’re not coming from a position of hating women or babies,” Wendy Francis says. “They’re also coming from a position of compassion – I think wrongly placed, because I see things from a different perspective – so it’s important that we talk together because that’s the way we learn and grow.” Francis is unsurprised by the US Supreme Court decision overturning Roe. “Legal scholars across the political and ideological spectrum have shared the view for decades that Roe was politically motivated, and that it didn’t really fit in the constitution. So I didn’t see it as a big surprise. I wasn’t expecting the ramifications that’ve happened in Australia,” she says, of the protests against the decision that took place the weekend before we spoke.

“We’re seeing people protest against an American decision, which is a little bizarre because they’ve followed a legislation model which we’ve had in Australia forever,” Francis says. “Issues of abortion have gone back to the people. The people can now elect representatives who share their views, or don’t share their views.”

As she says this, I think how those protests gestured towards the rediscovery that rights can be taken away.

“So that’s the negative,” she continues. “We’ve seen people protesting, and I’m not convinced they even understand what they’re protesting because it’s the same system we’ve had. But on the positive, I think pro-life people have been really encouraged by a pro-life movement that is growing and getting younger.”

I ask Francis how the Australian Christian Lobby perceives its role given that elected representatives in the majority of the country have legislated to decriminalise abortion.

“We have 240,000 supporters,” she says. “For them, an issue that was dead and buried, in a way, because most states have made pretty radical abortion laws here in Australia, they suddenly see: ‘Hang on a minute, there are ways of turning back some of the more radical legislation.’ So our supporters have been more engaged on the issue in asking us, ‘What could we do in Australia?’”

My final question is the one that Wainer was not prepared to research: What would a more perfect society look like?

“I think it would be a kinder, more compassionate society. A society that really valued truth – many times we obscure truth because of our own ideologies.”

In 1976, anthropologist Edward T. Hall likened culture to an iceberg, its greater mass unavailable to the eye. Culture’s visible, and conscious, tip is largely behavioural. A world of implicit cultural phenomena, however, is submerged in the depths, and includes unspoken rules about status, authority, fairness, emotion, safety, sexuality, family and religion.

“Growing up, if you attended church, you would put that on your résumé,” Wendy Francis said, about the census data. “That would be something that would make you into a really respectable person. I think the difference between Americans and Australians in that way is we’re more fair dinkum, more honest about ourselves. Many in America claim to be Christians. I don’t want to be judgemental, but I think it’s a bit of lip service. I’ve been there and you have ‘God Bless America’ over a porn shop. In Australia, more people are only ticking that they are Christian if they truly are someone who follows Christianity.”

A possibly more germane difference is voluntary versus compulsory voting. Here, political success depends on capturing the middle. In America, where the largest block rarely votes, success depends on activating a minority. Given the ACL’s membership represents a tiny percentage of Australia’s Christians, an activated minority having an outsized influence is more familiar than we think.

It is possible, as Hall indicated and psychoanalysts have known for more than a century, to be both fair dinkum and dishonest, or wilfully oblivious, about our drives, fears and the consequences of our actions. Another difference between the countries is that in America the hypocrisy of attempts to twist a liberal democracy into a Christian nation are discursively normalised as a public good. Here, however, religious power may be no less muscular for moving invisibly.

In this country, the Catholic Church is worth tens of billions of dollars. Chaplains have trumped child psychologists in schools. Male authority has profited from repressive reproductive legislation. The Royal Commission into Institutional Responses to Child Sexual Abuse revealed the extent to which authority structures enabled child rape by members of religious institutions to continue for years. A year after that inquiry’s devastating report, a former prime minister gave a glowing character reference in the sentencing hearing of Australia’s most senior Catholic, who had been convicted of five child sexual abuse offences (those convictions were later overturned on appeal). It is a country where, despite the evidence of the Productivity Commission that stigmatisation drives trans children to suicide, another former prime minister attempted to enshrine a right to exclude them from schools as a religious entitlement. So while most jurisdictions have decriminalised abortion, this is the water we swim in.

Stigma is another implicit cultural phenomenon, a complex social process that devalues and discredits someone based on a particular characteristic. It is contagious, moving from those forced to carry it to those who treat them as equals. Sociologist Erving Goffman was clear that there is nothing inherently discreditable about any characteristic; rather, we construct an elaborate ideology to explain the stigmatised person’s inferiority and danger. To understand stigma, then, Goffman said the “language of relationships, not attributes” is needed. This is because stigma is purposive; it is about power, a precision weapon deployed to maintain social hierarchies.

Polling since the 1980s has consistently shown most Australians support the right to choose. Still, the minority has had outsized influence on the provision of reproductive healthcare. This says more about who benefits from religious power than it does about belief.

In the 1970s, Jo Wainer set up the Abortion Providers Federation of Australia. “We had abortion providers from every state, many of whom operated illegally, at that meeting. Some were in tears, because they hadn’t ever been able to tell their colleagues what they did.”

Five decades later, Dr Catherine Orr, a GP and experienced abortion provider, says, “There’s still a perception among practitioners that abortion is ‘dirty work’.” Other providers around the nation told me that their work “is stigmatised within the medical profession and society at large”. One said that “it’s absolutely stigmatised amongst health professionals and GPs, and there are multiple points for stigma to permeate the process: pharmacists, pathology, sonographers, nurses, reception staff  ”.

“We still don’t regard abortion as reproductive healthcare and this transcends education, class and religion,” another experienced provider said. “The stigma is present even where the woman would have died without the procedure. It’s equally present in metropolitan and rural areas. The only difference is that near cities, you have some anonymity and choice.”

The providers I speak with are proud of their work. Most are anonymised due to concerns for their safety. They talk about brick walls when trying to partner with regional hospitals or clinics to provide services or open new clinics. About “very strong unofficial pressure”, which left no written trace but clearly communicated that if abortion was provided, one would find themselves unable to work in the town. I heard about women scared to claim the Medicare rebate, so fearful are they about the item number appearing on their paperwork. Women scared of their usual GP “finding out”. Women scared of violent partners; no emails, no calls from the clinic please.

I heard shaming comments, which concerned women’s behaviour instead of any belief that life begins at conception: “Oh, she must’ve had a one-night stand”, “If they’re brought up right …”

“There’s so much shame around it,” a specialist GP registrar told me, “and I’m not sure people really understand why they’re ashamed.” “When you think of abortion,” said a woman who had a medical abortion the weekend before Roe was overturned, “you think it’s scary, black-market vibes. You don’t talk about it.” She saw her doctor two weeks later to rule out an infection. “If I’d been in America, I would’ve been terrified. What if I’d had sepsis?”

“Stigma, judgement, there are patriarchal overlays everywhere,” Danielle Mazza from Monash University says, “but fundamentally it’s a lack of education and ignorance: what comes out of the body, what medical abortion is. It’s not just practitioners who need more education, it’s the whole ecosystem.”

At the end of June, the organisers of a Lyon Leaders Youth Training Day concerned with “activat[ing] a new generation to rise up and fight for the human rights of the unborn” advertised that SA Liberal leader David Speirs and Labor minister Clare Scriven were slated to attend. Speirs did not end up attending, but a spokesperson for Scriven stated that the MP did attend as it was “important to her to have conversations with and hear from women and young people about their experiences, views and concerns”.

Australian women earn less than men in every age bracket. Intimate partner homicide is the most common homicide, and most victims are women. Twenty-three per cent of women have experienced sexual violence since age 15, compared with 8 per cent of men. And many cases go unreported. Systems change has taught us that equality in healthcare is inseverable from drastic improvements in these conditions. Yet we forget that knowledge as we forget the women killed or injured by unsafe abortions, and the photograph of a woman left to bleed out like something in an abattoir when backyard premises were raided. When I hear the argument that medicine is “about preserving life”, I think how high amnesia is as the governing principle in this country about specific swathes of history.

In my pantry, I have tinned tomatoes older than legalised abortion in many Australian states. South Australia decriminalised it last year; that came into effect on July 7, 2022, as I write this. Decriminalisation happened in 2021 in NT, 2019 in NSW, 2018 in Queensland. Remember: it was not always thus. And there are no guarantees it will remain this way, because rights legislatively given can be legislatively taken away. For example, where doctors in NSW broadly consider a patient’s medical, physical, psychological and social circumstances when determining the need for abortion, in SA those doctors are only allowed to take into account whether abortion is necessary to save the patient’s life, or that of another foetus, whether the pregnancy would involve significant risk to the patient’s physical or mental health, or relevant foetal anomalies. Such legislative restrictions, if strictly interpreted, can contract a right into speciousness. So while America is increasingly seeming like another planet to the Australian eye, the same laws of political gravity, undue influence and electoral complacency in the face of incontrovertible social need apply here too.

Sarah Krasnostein

Sarah Krasnostein is the award-winning author of The Trauma CleanerThe Believer and the Quarterly Essay Not Waving, Drowning: Mental Illness and Vulnerability in Australia. She holds a doctorate in criminal law.


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