Could our reproductive rights be eroded? (rerun)

With Roe v Wade now overturned, as anticipated, we rerun our story from last month on abortion rights and access around Australia.

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“It’s shocking,” says Dr Deborah Bateson, medical director of Family Planning NSW. “It’s the most serious threat to reproductive rights in the States in a generation.”

That a leaked document from the US Supreme Court laying out legal arguments to overturn abortion rights should make headlines around the world is testament to just how precarious those hard-fought rights are still perceived to be, even outside the US.

UPDATE Monday 27 June: The US Supreme Court overturned Roe v Wade on Friday US time. Asked to comment at the weekend, Prime Minister Anthony Albanese said: “Well, Roe versus Wade was something that was in place for many decades. And the concern that is there from women, I think, globally, is that this is a setback for women’s health, and for the issue of women’s safety as well. And this is a decision which goes to the heart of a woman’s right to control her own body. And these are issues which aren’t the subject of partisan political debate in Australia. And that’s a good thing. It’s good here that we don’t deal with it in the same way that has seen the division in the United States.“

Back in 2016, former US president Donald Trump signalled his intentions to overturn the famous Roe versus Wade decision – which paved the way for abortion to be legalised in the US – by appointing three conservative justices to the Supreme Court during his mercifully brief tenure.

The US situation has no bearing at all on the right and access to abortion in Australia. So why the panic? Because, Dr Bateson says, it sends a signal that could embolden anti-abortion activists and legislators elsewhere in the world, including Australia.

“We have removed that threat of prosecution of providers, of doctors, and that threat of prosecution for women,” she says. “[But] we always have to watch it and certainly there’s some provisions in some of the legislation that had been made which can present challenges, so we can’t say, ‘oh, yes, it’s all totally sorted’.”

Already, controversial Victorian Liberal Bernie Finn has voiced his excitement about the developments in the US and wrote that he was praying for the same to happen in Australia.

The last bastion of abortion illegality in Australia only fell as recently as 2019, when NSW legislators removed abortion from the criminal code. Abortion is now legal in all states and territories, but the fine print varies considerably.

In NSW and Queensland, requested abortions are legal until 22 weeks and thereafter with the approval of two doctors.

In Victoria, they are legal until 24 weeks and thereafter with the approval of two doctors. The Northern Territory allows abortions up to 14 weeks, and between 14-23 weeks only with the approval of two doctors. Tasmania allows them up to 16 weeks, then only with the approval of two doctors.

The ACT doesn’t specify gestation limits, while South Australia requires the approval of two doctors for all abortions and limits them to 23 weeks’ gestation. In Western Australia, abortions are only allowed up to 20 weeks’ gestation and there are restrictions for those aged under 16.

This variation in law between states is something Cedric Manen, CEO of Family Planning Tasmania, would like to see change to ensure Australia doesn’t lose ground the way the US is.

“We need national legislation that is consistent and protects women in this space,” says Mr Manen, who is also deputy chair of Family Planning Alliance Australia. “If we had a charter of human rights that was consistent across each state, where sexual and reproductive health rights were protected, then we might not see that degradation.”

Could Australia’s abortion laws be overturned? Most say it would be difficult, given the weight of public opinion in Australia lies in supporting legal access to abortion.

But Adrianne Walters, associate legal director at the Human Rights Law Centre, warns against complacency.

“What is happening in the US has not happened overnight – bit by bit, year by year, anti-choice politicians and groups, lawyers and many others have sought to erode women’s reproductive freedom,” she said in a statement to The Medical Republic.

“In recent years we’ve seen anti-choice politicians around Australia borrow from the US anti-abortion playbook to try to thwart health-focused reforms in Queensland, NSW and South Australia.”

Legal doesn’t mean accessible

While the US situation is focused on the legal status of abortion, legal doesn’t necessarily equate to accessible, particularly for people in rural and regional areas, or who are socioeconomically disadvantaged.

Dr Kathleen McNamee, medical director of Sexual Health Victoria, says abortion should be considered a routine part of health care, and be publicly and readily accessible to everyone. “It’s a time-limited thing, so you can’t really have waiting lists,” she says. Unfortunately, the reality is far from ideal.

Medical abortion via the oral treatments mifepristone (previously known as RU486) and misoprostol is available up to the ninth week of pregnancy.

During the pandemic, pregnant people were able to access medical abortion via a telehealth consultation, which significantly increased the ease of access particularly for those in rural and regional areas. The only exception was South Australia, which did not allow medical abortion to be provided via telehealth.

The federal government recently announced that it was making the item numbers for telehealth consultations a permanent fixture in the Medicare Benefits Schedule. Unlike many other GP services, sexual and reproductive health consultations are exempt from the requirement to have had at least one face-to-face consultation with the patient in the previous 12 months.

The drugs used for medical abortion are subsidised by the Pharmaceutical Benefits Scheme, but are Authority Required. “We still, as doctors, have to ring the authority line, which is an unnecessary restriction,” Dr Bateson says.

However medical abortion isn’t available or appropriate for everyone, Dr McNamee says. “Sometimes it’s the social situation that might make a medical abortion quite difficult,” she says. “If someone’s homeless, they need a place to actually have the medical abortion, or they’re living in a caravan park or have no access to a toilet.”

Delays in accessing medical care might then put someone outside the nine-week limit for medical abortion. For those people, surgical abortion is the only option, and here things get a lot more difficult and costly. Some states, such as the Northern Territory and Tasmania, support women to access surgical abortion through the public hospital system.

But in Victoria, it can be difficult to get a surgical abortion in a public hospital – particularly in Melbourne – which forces people to undergo the procedure in private health care and pay the cost. And in rural and regional Australia, it can be almost impossible to get a surgical abortion close to home, creating what are sometimes described as “abortion deserts” around the country.

“What it means is that we’ve got inequities in cost in terms of access to support and also who funds that support across each state and territory,” Mr Manen says. “It would be good to have a minimum guideline around what affordability in this space looks like, and would encourage every state and territory to make it a funded item for organisations to provide.”

Abortion access has not been on the radar in the federal election campaign so far. However in its 2021 national platform policy document, the Australian Labor Party affirmed its commitment to ensure pregnant people have “genuine choice” with regards to continuing or terminating a pregnancy, and to expand access to sexual and reproductive health care including abortion.

The Coalition did not respond to a request for information about its position and policies on access to abortion, and there was no mention of abortion in either the 2021-22 or 2022-23 federal budgets.

If the legal status of abortion is relatively secure in Australia, is there still the possibility that governments – state, territory or federal – could undermine access by cutting funding, subsidies or reimbursements? It’s a horrifying prospect, Dr Bateson says, but she believes that community support for abortion would prevent that from happening. “It was a very important move to place medical abortion drugs on the PBS, and I can’t see that being turned back,” she says.

But there is still much more to be done to ensure that pregnant people from all walks of life, across all of Australia, have timely, subsidised access to abortion. “The law is only part of the picture,” Ms Walters says. “Access to reproductive healthcare in Australia is tenuous for many – it so often depends on where you live and how well you can navigate the healthcare system.”