Abortion Law in Tasmania

Welcome to ProChoiceTas.  Late 2013 after more than three years of advocacy and hard work, abortion was decriminalised in Tasmania.  

The Reproductive Health (Access to Terminations) Act 2013 gives women the legal right to determine the outcome their pregnancies, in consultation with their health professionals, up to 16 weeks gestation.  After this time two doctors must  'reasonably believe that the continuation of the pregnancy would involve greater risk of injury to the physical or mental health of the pregnant woman than if the pregnancy were terminated'.  

The bill also requires doctors with a conscientious objection to abortion to offer their patients information on where they can go for unbiased information and options counselling.  It also includes an access zone around clinics to reduce the harrasment and intimidation of patients and staff.  

A link to the Act is here:  http://www.thelaw.tas.gov.au/results/index.w3p?simpleSearchField=Reproductive+Health+%28Access+to+Terminations%29&imageField.x=16&imageField.y=5

The remainder of this page remains as it was during the campaign as an historical record of the issues faced by Tasmanian women up until 2013.  

 


 

Did you know that in Tasmania it is a crime for a woman to terminate her pregnancy herself? 

Did you know that a woman could be tried in a criminal court and if convicted, sent to jail for up to 21 years? 

Did you know that anyone who assists a woman to terminate her pregnancy is also guilty of a crime and could go to jail for helping her?

Did you know that in 2009-10 in Queensland, a young woman was, in fact, arrested, charged, sent to court and endured a full criminal trial under criminal anti-abortion laws that are very similar to Tasmania’s?  Her partner was also subject to criminal charges for assisting her.  Yes, three years ago in Australia.  http://www.prochoiceqld.org.au/facts.html

“…as [the Qld] court case proves, whispered assurances by craven politicians that doctors have nothing to fear from antiquated, conservative and unclear laws are mistaken.”  Dr Leslie Cannold, ethicist, activist and author, 2009.

Under the current laws, the same thing could happen in Tasmania at any time. 

What is the law in Tasmania currently?

Termination of pregnancy, or ‘procuring a miscarriage’ is currently (as at March 2013) regulated under the Criminal Code Act (Tas) 1924 (the Act).  Sections 134 and 135 concern the deliberate termination of a pregnancy (abortion) criminally and section 164 by ‘legally justified’ means. 

Sections 134 and 135 are based on sections of the United Kingdom’s Offences Against the Person Act 1861. The sections of this Actwhichrelate to abortion have long since been repealed in the UK. 

This original UKlegislationwhich forms the basis of Tasmanian abortion law was passed at a time when women did not have the right to vote.   

How recently has the current law been used?

Sections 134 and 135 of the Tasmanian Act were used to prosecute ‘backyard’ abortionists as recently as the 1960s when safe, medically skilled abortion was not available.  These sections were also used in 2001as the bases of a complaint to police by an anti-abortion activist. 

With police demanding hospital records, wanting to investigate a patient and her doctors for the crime of abortion, the health minister and others reacted by amending the Act retrospectively to prevent state-employed doctors in a public hospital from being charged with criminal offences.  Section 164 was added to the Act in December 2001.  Many people think that this amendment ‘decriminalised’ abortion in Tasmania such that it is treated like any other health service.  This is a myth. 

The 2001 amendment merely clarified in law what has been a common judicial ruling in both the UK and other jurisdictions of Australia such as Menhennitt in Victoria and Levine in NSW. 

Since 2001, for a woman to meet the criteria outlined in s164 of the Act to ‘justify’ an abortion, she must find not one, but two doctors who are prepared to certify in writing thatin their opinion, the continuation of the pregnancy would involve greater risk of injury to the physical or mental health of the pregnant woman than if the pregnancy were terminated. 

“Deciding to terminate a pregnancy, or deciding to continue a pregnancy and become a mother, should be the woman’s decision and hers alone, not two doctors as the Tasmanian law currently requires. Such a situation of paternalistic control in others’ hands does not exist for any operation involving men, and nor should it for women.”
Dr Susie Allanson, Psychologist & author, 2011.

The ‘Relative Risk’ Argument

This ‘relative risk’ argument stems from original judicial rulings in Britain in the 19th century when both childbirth and abortion carried high risk of injury or death to the woman, particularly so called ‘backyard’ abortions by unqualified persons.  In 21st century Australia this is no longer the case. 

In 2004 The Royal College of Obstetricians and Gynaecologists (UK)  http://www.rcog.org.uk/womens-health/clinical-guidance/care-women-requesting-induced-abortion  
statedthat “Abortion is safer than continuing a pregnancy to term...”.  In 2008 they also stated that “…the need for two [doctors] signatures is anachronistic.”  http://www.rcog.org.uk/what-we-do/campaigning-and-opinions/briefings-and-qas-/human-fertilisation-and-embryology-bill/brie-4

In 2012 researchers in the United States reviewed seven years of patient outcomes for legal abortions and childbirth and concluded that http://journals.lww.com/greenjournal/Abstract/2012/02000/The_Comparative_Safety_of_Legal_Induced_Abortion.3.aspx“ Legal induced abortion is markedly safer than childbirth”

They also stated that “The risk of death associated with childbirth is approximately 14 times higher than that with abortion. Similarly, the overall morbidity associated with childbirth exceeds that with abortion.”

In addition to the physical risks and complications associated with pregnancy and childbirth – in Australia, around 15% of women who give birth experience post-natal depression (National Health and Medical Research Council, 2000 http://www.nhmrc.gov.au/_files_nhmrc/publications/attachments/wh30.pdf).

The Royal Australian and New Zealand College of Obstetricians and Gynaecologists (RANZCOG) state in their 2005 guidelines http://www.ranzcog.edu.au/index.php/publications/womens-health-publications/termination-of-pregnancy-booklet
that “there is mainly improvement in psychological wellbeing in the short term after termination of pregnancy [and] there are rarely immediate or lasting negative consequences.”

The world’s largest, most comprehensive and systematic review into the mental health outcomes of induced abortion has been published by the Academy of Medical Royal Colleges at the National Collaborating Centre for Mental Health (NCCMH) at the Royal College of Psychiatrists.  Their review of 44 published studies spanning over 20 years finds that its unplanned pregnancy, not abortion, that is stressful for women.
http://www.huffingtonpost.com/2011/12/09/abortion-mental-health_n_1138545.html?view=print&comm_ref=false
http://www.nccmh.org.uk/publications_SR_abortion_in_MH.html
http://aomrc.org.uk/component/content/article/38-general-news/283-systematic-review-of-induced-abortion-and-womens-mental-health-published.html

Overwhelmingly, the most extensive, robust, scientifically valid research shows that legal abortion is far safer both physically and psychologically than childbirth. 

In addition, ongoing research http://www.ansirh.org/research/turnaway.php is following the long term outcomes of women forced to continue pregnancies against their will. Already it has found that women denied abortions experience higher rates of anxiety, are more likely to live in poverty and stay in abusive relationships exposing them to higher levels of violence.  Similarly this 2002 paper identifies a litany of negative outcomes for both women and their children when abortions are denied http://www.prochoiceforum.org.uk/psy_ocr2.php

Thus if medical practitioners abiding by the requirements of s164 of the Act were to make recommendations to women based solely on clinical and epidemiological evidence of physical and psychological risk, then they would advise abortion as the least risky option in all cases, thus making the requirement in law redundant.

The law also does not discern between abortion for medical or psychosocial reasons.  There are many stereotypes about women who seek abortion but what is often forgotten is that planned, wanted pregnancies can develop into severe foetal abnormality (such that the foetus will not survive outside the uterus) or foetal death in utero.  Therapeutic abortion is the medically recommended course of action in these cases yet the law treats a 22wk foetal death in utero in a woman distraught at the loss of her wanted pregnancy in the same way as an abortion of a 6wk embryo in a woman who does not wish to have a child. 

Losing a wanted pregnancy in the second trimester can be a devastating experience.  Women going through such distress should not be treated like criminals, nor should they have to jump through legal hoops such as finding two doctors to certify in writing that they should be allowed a termination.  

Currently it is not a woman’s choice whether or not to continue her pregnancy, it is the choice of two doctors who may be complete strangers to her.  No man is subject to such humiliating medical gatekeeping under criminal law. 

“As a practitioner of women’s health care I know that no one is in a better position to assess the impact of parenthood than the woman herself, and I believe that this decision should be hers alone, taken if she wishes in conjunction with her doctor, but not requiring the consent of two doctors as is currently the case.   …   As a Fellow of the Royal Australian and New Zealand College of Obstetricians and Gynaecologists I know that RANZCOG supports legal, safe, abortion with no barriers. As medical professionals we expect to be trusted to act responsibly. The current law is patronising to doctors as well as to women.”
Prof Caroline de Costa, Obstetrician & Gynaecologist, author and university lecturer, 2011.

Recent Australian Legal Reviews

Prior to law reform in Victoria the Victorian Parliament referred the issue to the Victorian Law Reform Commission (VLRC).  The VLRC undertook a comprehensive assessment of the impact of the (then) criminal laws, clinical practice and community standards.  It received over 500 submissions, met with over 35 community groups, convened a specialist medical panel and gathered published evidence on all aspects of abortion from national and international sources.  Their final publication, Law of Abortion Final Report (2008) is an excellent, thoroughly referenced summary of all the issues that could possibly arise in any Australian jurisdiction during a law reform process, and is a valuable resource for Tasmanian law reform.  The full report or selected chapters can be downloaded from the VLRC website: http://www.lawreform.vic.gov.au/wps/wcm/connect/justlib/law+reform/home/completed+projects/abortion/lawreform+-+law+of+abortion_+final+report

International context

In addition to professional medical organisations supporting safe, legal abortion (see links page), a range of international organisations including human rights organisations also support this outcome.  In August 2011 the United Nations General Assembly released a paper http://www.un.org/ga/search/view_doc.asp?symbol=A/66/254 pertaining to criminal and other legal restrictions relating to sexual and reproductive health.  They state:

“Criminal prohibition of abortion is a very clear expression of the State interference with a woman’s sexual and reproductive health because it restricts a woman’s control over her body, possibly subjecting her to unnecessary health risks.”

“Criminal laws penalizing and restricting induced abortion are the paradigmatic examples of impermissible barriers to the realization of woman’s right to health and must be eliminated.”

“Examples of other restrictions include: laws prohibiting public funding of abortion care; requirements of counselling and mandatory waiting periods … requirements that abortions be approved by more than one health-care provider; parental and spousal consent requirements…”

“States must take measures to ensure that legal and safe abortion services are available, accessible and are of good quality.”

The paper’s recommendations include:

“Decriminalise abortion, including related laws, such as those concerning abetment of abortion.”

“Ensure that accurate, evidence-based information concerning abortion and its legal availability is publicly available…”

“Ensure conscientious objection exemptions are well-defined in scope and well-regulated in use and that referrals and alternative services are available in cases where the objection is raised by a service provider.”

It is clear that the current law in Tasmania is not in line with United Nations recommendations. 

“All of women’s aspirations – whether for education, work or any other form of self-determination – ultimately rest on their ability to decide whether and when to bear children.”  Susan Faludi, author, 1992

 

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