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“Gatekeepers” of Abortion in Australia: Abortion Law and the Protection of Doctors

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“Gatekeepers” of Abortion in Australia: Abortion Law and the Protection of Doctors “Gatekeepers” of abortion in Australia: Abortion law and the protection of doctors Jennifer Beattie May 2018 A thesis submitted for the degree of Doctor of Philosophy of the Australian National University © Copyright by Jennifer Beattie 2018 All Rights Reserved. 1 2 This is to certify that to the best of my knowledge and belief, this thesis contains no material previously published or written by other persons except where due reference is made in the text of the thesis. This thesis has not been submitted for any degree in any other university. The work in this thesis is my own except where acknowledged. This thesis is 99, 095 words in length. Jennifer Beattie 27 May 2018 3 Acknowledgments This thesis is the accumulation of many years of work, which could have not have been completed without the help of a number of people. Firstly, I wish to extend my gratitude to the doctors, academics, and health professionals that participated in my research. Abortion is not an easy subject and so often polarises people when it is discussed or when it emerges in the public sphere. Whilst the perspectives of each person varied, a commitment to discussing abortion and surfacing the reality of abortion practice did not. Each person gave his or her perspectives within a frame of mutual learning, and for that I will be forever grateful. I wish to thank my panel of supervisors led by Emeritus Fellow Dr Alastair Greig. To Dr Greig, I am forever in your debt. Your academic supervision of my work was of the highest calibre, and your friendship over the years was invaluable. You consistently supported my decisions, but challenged me every step of the way. To Emeritus Professor Toni Makkai, you gave me the impetus to complete a PhD and made sure that I kept to task over the years – my thanks for all of your support. To Dr Gavin J.D. Smith, your patience, advice and support throughout this journey helped me to clarify my thinking and enabled me to complete this thesis. Your constant energy meant that I could never let you down. To Associate Professor Helen Keane I give my sincere thanks for your assistance in navigating the complex world of Foucault. You have a unique gift in being able to explain complex in a simple and meaningful way. I also give my sincere thanks to Emeritus Professor David Hambly of the ANU College of Law for his assistance in understanding the nuances of different legal frameworks. Without his assistance I would not have been able to conceptualise the law with sufficient rigor. I wish to thank Dr Annette Houlihan for sparking my interest in the subject, encouraging me to pursue doctoral research, and believing that I could. I also wish to thank Dr Jo Wainer for her assistance in understanding the reality of abortion practice in Australia. I acknowledge my friends and colleagues who pursued doctoral research at the ANU during my period of study for their ongoing support and words of encouragement. I wish to thank in particular, Dr Cat Ayres, Joe McCarthy, Dr Hedda Ransan-Cooper, Dr Hannah Ky McCann, Dr Anna Tsalapatanis, and Clare 4 Southerton. Thank you for sharing this journey with me. I also acknowledge a small number of friends and family who made my journey to completion more enjoyable. The reasons are too great to mention but I acknowledge the support of Michael Beattie, Lisa Beattie, Aimee Milligan, Horang Ehsani and Dr Kate Bisshop-Witting. To my friend and mentor, Emeritus Professor Jill Julius Matthews, you taught me more about life through this process than I would have otherwise discovered; thank you for everything. Finally, I acknowledge the constant support of my best friend and partner Joe Tran, without which this thesis would not have happened. For my darling daughter Edith, dream long and dream big; the world is yours. This research is supported by an Australian Government Research Training Program (RTP) Scholarship. 5 Abstract Abortion law in Australia is not consistent across the states and territories, but the common characteristic is that an abortion can be lawful where a medical professional is involved. A number of authors have therefore argued that this positions doctors as ‘gatekeepers’ to abortions (Leslie Cannold 2000, Janet Hadley 1996, Heather Douglas 2009, and de Crespigny & Savulescu 2004). This characterisation of ‘gatekeeping’ suggests that doctors perform a regulatory function over women’s reproductive decisions. However, without examining the emergence and the practice of this gatekeeping role, it only remains an assertion that doctors regulate women’s abortion choices. The design of this thesis draws on the work of Foucault, in particular his approach to studying power. It accepts Foucault’s position that power exists only when it is put into action (Foucault 1982, 788). My study of gatekeeping examines the gatekeeping role through this lens, examining how the social expectation of regulation for doctors established under the law aligns with how doctors practice this regulation. With this in mind, the thesis draws sequentially on multiple sites for investigation, including law, education and medical practice, moving from the framing of abortion legislation through to the decision-making practices of doctors. This thesis finds that the law in all Australian jurisdictions relies on doctors to perform a function that is not legally or institutionally well-defined, but instead is shaped by and relies upon the values and beliefs held by individual doctors. There is thus a legal expectation of regulation established by the gatekeeping role, but doctors can exercise their own judgement in how they choose to practice the role. The thesis concludes that abortion law in Australia involves balancing the rights and responsibilities of women and doctors in the context of the social contentiousness of the abortion issue. The law balances multiple factors, from the protection of women’s choices to women’s health needs, and the legality of the doctor in facilitating access to the procedure to the rights of doctors to practice medicine according to their own conscience. This results in variable consequences for women seeking abortions, depending on the presiding doctor. 6 Table of Contents Chapter 1: Introduction..................................................................................................................... 8 Chapter 2: Literature review: making sense of ‘the abortion debate' .......................... 21 2.1. Perspectives on abortion ................................................................................................................... 23 2.2 Perspectives on medicine and power............................................................................................ 51 Chapter 3: Methodology .................................................................................................................. 65 3.1 The utility of Foucault .......................................................................................................................... 67 3.2 Research design ...................................................................................................................................... 69 Chapter 4: Legitimising the ‘gatekeeper’: constituting the authority of the medical profession ............................................................................................................................................. 96 4.1 The origins of the crime of abortion and medical intervention ......................................... 99 4.2 The medical profession, the legislature and abortion in Australia ................................ 110 Chapter 5: The legal framework of ‘gatekeeping’ in Australia ...................................... 141 5.1 Decriminalised jurisdictions: Australian Capital Territory, Victoria and Tasmania144 5.2 Criminal jurisdictions: New South Wales and Queensland ............................................... 157 5.3 Hybrid jurisdictions: South Australia, the Northern Territory and Western Australia ............................................................................................................................................................................ 170 Chapter 6: Educating for ‘gatekeeping’: teaching abortion decisions ........................ 185 6.1 The decriminalised jurisdictions .................................................................................................. 189 6.2 The criminal jurisdictions ............................................................................................................... 205 Chapter 7: Practicing ‘gatekeeping’: doctors and their approaches to abortion cases ................................................................................................................................................................ 225 7.1 Scenario 1: Rachael ............................................................................................................................ 228 7.2 Scenario 2: Maria ................................................................................................................................ 233 7.3 Scenario 3: Emma ............................................................................................................................... 237 7.4 Scenario 4: Sarah ................................................................................................................................ 242 7.5 Scenario 5: Jane ..................................................................................................................................
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