Abortion in Australia: Legal and Ethical Issues

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Table of Contents

Introduction
Legal Issues Relevant to Abortion
Ethical Issues Regarding Abortion in Australia
Theoretical Perspectives on Ethics
Relationship between Legal and Ethical Issues on Abortion
Conclusion
References

Introduction

Abortion is considered a safe and simple medical procedure in major global health organizations, forming a crucial part of reproductive health services. Some nations permit medical practitioners to decline to offer termination of pregnancy services when they have a religious or ethical objection. However, in many fields of medicine, a physician cannot refuse to assist a client in accessing a service that is lawfully beneficial, effective, and authorized for the care of a patient. It is necessary for an individual to consider ethical and legal issues before seeking abortion services.

Legal Issues Relevant to Abortion

Abortion has been fully legalized in almost all Australian territories. Access to termination of pregnancy services varies between territories and jurisdictions, and thus clinical abortion services are easily accessible on request between sixteen and twenty-four weeks of gestation (Cations et al., 2020). However, some cases require physicians’ approval but are heavily restricted after twenty weeks, mainly in Western Australia. Opinion polls indicate that most Australian citizens support abortion rights, and anti-abortion protests are rare in the nation (Cations et al., 2020). The country has passed regulations prohibiting protesters from harassing staff and visitors in Tasmania. A woman’s sexual companion is not needed to be informed of an abortion, and the judicial system does not give orders to stop the termination even when the complainant is the biological father of the unborn child.

All Australian states have varied rules and regulations regulating pregnancy termination since colonization. Each territory had embraced the Offences Against the Person Act of 1861, which made the practice illegal (Barratt et al., 2019). Since then, laws regulating abortion constantly have evolved in every jurisdiction through common law and law reforms. A judicial precedent regarding abortion legitimacy was created in Australia in 1969 following the Menhennitt determination in the apex court of Victoria; R v Davidson case note (Barratt et al., 2019). It ruled that the practice was legally justifiable to preserve a woman’s psychological and physical well-being.

Additionally, the court ruled that abortion was legal, provided the harm that the abortion was meant to prevent outweighed the risk involved. Ever since, constitutional amendments and court judgments have been made, which form the benchmark for a medical framework for abortion in Australia. The labor party in Australia revealed a state termination of pregnancy policy before the national elections held in 2019 (Haining et al., 2022). The policies proposed by the party included demanding public health facilities to provide abortion processes continually under new financing agreements from Commonwealth. It also encouraged the Premier state to eliminate termination of pregnancy from its penal code and set up an abortion facility in Tasmania.

In Australia, abortion is done on request up to twenty weeks after pregnancy. However, some Australian territories, including those in the Western hemisphere, have not yet legislated safe access zones around medical clinics providing pregnancy termination services (Haining et al., 2022). There are also stringent laws restricting access to abortion after 20 weeks of pregnancy, and crimes involving this practice are provided under the criminal code. Abortion in the nation is legally justified under Health Act 1911, section 334 (Haining et al., 2022). The practice is only allowed if the pregnancy is believed to cause danger to the mother or if the pregnant mother has provided her informed consent.

Moreover, when the pregnancy is over twenty weeks, abortion may only be performed in an approved facility. Offenses regarding abortion performed by unqualified persons are provided under section 199 of the criminal code act compilation act and attract a fine (Sifris & Penovic, 2021). In addition, two doctors who are members of a committee elected by the minister must agree that the unborn child or the mother has serious medical conditions that justify the termination of pregnancy.

Abortion legalization in Australia puts guidelines that facilitate a transition toward improving women’s access to abortion services. The condition in all legalized territories is that only certified physicians can perform the practice in an approved facility (Smith & Cameron, 2019). It impedes the evolution of innovative methods in which early abortion procedures, among other technological advancements, may address the requirements of women in remote and regional areas. That constant pregnancy termination status is proof of compliance with the moral code concerning this practice and the health authority’s constraint on this issue of female reproductive life.

Another advantage attributed to legalizing abortion is that it serves as a relief as it reduces the burden and pressure on the breadwinners. Similarly, its associated costs are relatively cheaper than nursing a child and providing for all their requirements. Moreover, unwanted pregnancies are well taken care of, and women may return to their normal daily routines and live without hindrance or obstruction (Baird, 2021). Finally, women can retain their freedom by decriminalizing abortion since some are not ready to enroll in motherhood.

In contrast, decriminalizing abortion in Australia compromises the relations between the law and religion. That is because religion is always against abortion while the law is legalizing the same, resulting in a clash. Furthermore, many risks are linked with surgical or medical abortion, and the woman’s life is at risk in all cases. For instance, if a woman terminates her pregnancy using pills sold over the counter, she might not realize that she has some retained products within the womb, which might end up claiming her life. After performing several abortions, a female may find it challenging to conceive again, resulting in family disintegration. Medical practitioners and women in the Australian jurisdictions which have decriminalized abortion may be exposed to legal risks, and their identities may be transformed from law-abiding citizens into criminals.

Additionally, the retention of criminal abortion legislation encroaches upon multiple civil rights. It also stigmatizes reproductive health practice and dissuades healthcare providers from training and practicing in this field of women’s health. Finally, legalizing abortion in Australia has resulted in an increased number of sexually-active adolescents and teens. It has proved to be a leeway for misbehaving, as unwanted pregnancies may be easily dealt with.

Ethical Issues Regarding Abortion in Australia

A fair go in Australia is about non-discrimination and equality, constituting Australian ethos. The international law on civil rights does not acknowledge individual rights to the termination of pregnancy. Decriminalizing abortion goes against civil rights, mainly considered an abuse of human rights. The connection between maternal deaths and unsafe abortion supports the debate that limitations on abortion infringe on the right to live (Keogh et al., 2019). The perspective that legislation restricting abortion infringes on a women’s freedom to be free from sexual discrimination is based upon the evaluation that discriminatory presumptions inform legislation limiting access to abortion for females. Similarly, such laws’ consequences entail uneven status of women in the community.

Moreover, the perception that criminalizing the termination of pregnancy amounts to inhumanity and maltreatment is based on the suffering some mothers experience, especially when they have no access to abortion services. Australia has ratified universal constitutional rights agreements, supporting itself to the conditions provided for in the law of nations (Sifris et al., 2020). Except for Capital Territory, in other states where termination of pregnancy has been legalized, there exists a biased element to the law, which is intrinsic in the reality that pregnancy termination is treated differently from other surgical procedures. That underpins the stigmatization associated with the practice and the adverse health disparities that might stem from stigmatization.

Discriminative regulation between a component of medical care required only by females and different kinds of healthcare and its associated stigma is a type of gender-based discrimination. The accessibility of abortion services where the continuity of the pregnancy is considered dangerous to the health of the female. It is positive for them as it offers a leeway for access to lawful termination of pregnancy where or else it might be an offense (Ireland et al., 2020). That position, however, is problematic because it authorizes physicians to decide if a woman must be allowed to abort, enabling the physicians to become guards to lawful abortion. That compromises established healthcare practice, where the patient, not the physician, should make the final decision.

The above practice is discriminatory, and it deprives females of their autonomy and agency and constructs them as incompetent to make rational and informed choices. This is mainly the scenario provided that physicians rely on mental health exceptions in most cases to allow the women to access services on pregnancy termination. That is harmful as it may force the women to engage in unwanted counseling from psychotherapists and referrals to psychologists. Physicians in Australia are conscious of this non-evidence-based and antiquated practice (Ireland et al., 2020). They note the complicated decision-making procedures they undergo when determining if women are qualified for legal abortion.

There are circumstances in which two healthcare providers are needed by law to make a medical decision about abortion in Australia. An ethical issue arises in this requirement if the patient is mentally incompetent. The decriminalization of abortion services by healthcare professionals is needed in specific cases in West and South Australia, Victoria, Tasmania, and the Northern Territory (de Londras et al., 2022). That means the legislation is conflicting throughout Australia and in disagreement with modern patient care and the country’s codified laws and consent procedures concerning other aspects of medical care. Treating termination differently from other kinds of healthcare is intrinsically discriminative. The above analysis offers multiple examples of how abortion laws are treated differently against other medication treatments resulting in an ethical dilemma (Mainey et al., 2022). Only if termination of pregnancy is managed as a normal clinical procedure will patients attain equality regarding access to health care. This is contrary because these zones are believed to be integral in securing women’s rights to access appropriate healthcare.

Theoretical Perspectives on Ethics

The structural functionalism approach is one of the theoretical perspectives on ethics that has been applied in discussing the ethical issues regarding abortion. This theory has an essential purpose as it proposes that terminating a pregnancy creates jobs for nurses and doctors, keeps the population down, and prevents unwanted children from being born (Steinfeld et al., 2023). Thus, unsafe and risky abortions may be prevented if legalized. The other perspective is the conflict theory, which is primarily based on economics (Dahrendorf, 2022). This practice is a class issue, with poor women not being able to afford the services while upper and middle-class women can. The two theoretical perspectives have been useful in determining the final ethical position. The final stand is that abortion should be decriminalized in Australia and worldwide. This is because the criminalization of abortion infringes the basic civil rights of girls and women, forces them to resort to unsafe methods of abortion, and increases health complications resulting from unsafe abortions.

Relationship between Legal and Ethical Issues on Abortion

The legal provisions on abortion are controversial mainly because of the ethical contracting of medical services and healthcare training to spiritual institutions. For instance, nursing and medical students trained in Catholic universities need their staff to demonize women looking for termination of pregnancy, which is both discriminative and an infringement of the right to good health. Healthy and wealthy populations, small households, and access to comprehensive skilled maternal care account for the country’s low rates of maternal death (Fix et al., 2020). Thus, the ability to have an abortion prevents maternal morbidity because vulnerable girls do not become pregnant in the early stages.

Conclusion

The paper analyzes to what extent abortion laws in Australia may protect or violate basic human rights. Conflict theory and structural-functional approach have been applied throughout before making the ultimate ethical decision concerning abortion. The initial step towards safeguarding women’s freedoms is decriminalizing abortion which has been successful in different regions in Australia. Other measures include regulating the termination of pregnancy as a standard medical practice and establishing safe access zones. Legalizing abortion has its benefits and disadvantages. Unwanted pregnancies and maternal mortality have been prevented, and women can continue living without fear of being criticized or criminalized.

References

Baird, B. (2021). Flinders academics lead campaign to decriminalise abortion in South Australia. Agenda, 29, 16-17. Web.

Barratt, A. L., McGeechan, K., Black, K. I., Hamblin, J., & de Costa, C. (2019). Knowledge of current abortion law and views on abortion law reform: A community survey of NSW residents. Australian and New Zealand journal of public health, 43(1), 88-93. Web.

Cations, M., Ripper, M., & Dwyer, J. (2020). Majority support for access to abortion care including later abortion in South Australia. Australian and New Zealand Journal of Public Health, 44(5), 349-352. Web.

Dahrendorf, R. (2022). Class and conflict in an industrial society. Routledge.

de Londras, F., Cleeve, A., Rodriguez, M. I., Farrell, A., Furgalska, M., & Lavelanet, A. (2022). The impact of criminalization on abortion-related outcomes: A synthesis of legal and health evidence. BMJ Global Health, 7(12), e010409. Web.

Dwyer, J., Rankin, M., Ripper, M., & Cations, M. (2021). Is there still a need for abortion-specific laws? The capacity of the health framework to regulate abortion care. Alternative Law Journal, 46(2), 141-148. Web.

Fix, L., Seymour, J. W., Sandhu, M. V., Melville, C., Mazza, D., & Thompson, T. A. (2020). At-home telemedicine for medical abortion in Australia: A qualitative study of patient experiences and recommendations. BMJ Sexual & Reproductive Health, 46(3), 172-176. Web.

Haining, C., Willmott, L., Keogh, L. A., & White, B. (2022). Abortion law in Australia: conscientious objection and implications for access. Monash University Law Review, 48(2), 1-35. Web.

Ireland, S., Belton, S., & Doran, F. (2020). ‘I didn’t feel judged’: Exploring women’s access to telemedicine abortion in rural Australia. Journal of Primary Health Care, 12(1), 49-56. Web.

Keogh, L. A., Gillam, L., Bismark, M., McNamee, K., Webster, A., Bayly, C., & Newton, D. (2019). Conscientious objection to abortion, the law and its implementation in Victoria, Australia: Perspectives of abortion service providers. BMC Medical Ethics, 20, 1-10. Web.

Mainey, L., O’mullan, C., & Reid‐Searl, K. (2022). Working with or against the system: Nurses’ and midwives’ process of providing abortion care in the context of gender‐based violence in Australia. Journal of Advanced Nursing. Web.

Sifris, R., Penovic, T., & Henckels, C. (2020). Advancing reproductive rights through legal reform: The example of abortion clinic safe access zones. University of New South Wales Law Journal, The, 43(3), 1078-1097. Web.

Sifris, R., & Penovic, T. (2021). Barriers to abortion access in Australia before and during the COVID-19 pandemic. In L. Stan et al. (Eds.), Women’s Studies International Forum (Vol. 86, p. 102470). Pergamon. Web.

Smith, J. L., & Cameron, S. (2019). Current barriers, facilitators and future improvements to advance quality of abortion care: Views of women. BMJ Sexual & Reproductive Health, 45(3), 207-212. Web.

Steinfeld, L., Ramani, G., Hill, R. P., & Paul, R. (2023). An examination of legality of global abortion services and the genesis of public policy. Business and Politics, 1-19. Web.

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