Castan Centre for Human Rights Law Monash University Melbourne Submission to the Tasmanian Legislative Council Committee Government Administration A on the provisions of the 1 Reproductive Health (Access to Terminations) Bill 2013 July 2013 Prepared by: Ms Tania Penovic, Lecturer in Law at Monash University and Deputy Director, Castan Centre for Human Rights Law. Dr Ronli Sifris, Lecturer in Law at Monash University and Associate of the Castan Centre for Human Rights Law. 1 Aspects of this submission have been taken from: Ronli Sifris, ‘A Woman’s Right to Choose: Human Rights and Abortion in Australia’ in Paula Gerber and Melissa Castan (eds), Contemporary Human Rights Issues in Australia (Thomson Reuters, 2013) 251-273. 1 Comments on the Reproductive Health (Access to Terminations) Bill The Bill removes abortion services from the Criminal Code Act 1924 and places them within the ambit of medical services. We commend the removal of the crime of abortion from the Criminal Code. This approach to reproductive health services advances the rights of women and is consistent with standards of human rights applicable in Tasmania. Our submission will address a number of provisions of the Bill. We will first consider the removal of the crime of abortion from the Criminal Code in clause 14 of the Bill. We will then provide detailed comments on the Bill, with particular reference to clauses 4 to 9. Clause 14: Removal of the crime of abortion from the Criminal Code The Bill removes the crime of abortion from the Criminal Code and introduces a new framework which regulates abortion as a health matter. We commend the removal of the crime of abortion from the Criminal Code for the reasons set out below. Abortion as a health issue, not a criminal justice issue The debate around access to abortion remains coloured by intractable and passionately held views. Yet abortions are a fact of human existence. And while for many people the morality of abortion may be shrouded in shades of grey, from a public health perspective the issue is black and white – the accessibility of abortion is a precondition to securing women’s right to health. After all, [w]omen have always had abortions and will always continue to do so, irrespective of prevailing laws, religious proscriptions, or social norms. Although the ethical debate over abortion will continue, the public-health record is clear and incontrovertible: access to safe, legal abortion on request improves health. 2 While the number of unwanted pregnancies can be reduced through education and access to sexual health services, restrictive abortion laws do not erase the universal reality that a large number of women seek to terminate pregnancies every year. Unsafe abortion accounts for 13% of maternal deaths worldwide, with some 47,000 deaths annually.3 Women living in countries in which abortion is prohibited or available on the most narrow grounds have statistically lower levels of sexual and reproductive health and are in greater danger of complications resulting from unsafe or self-induced abortions. 4 A majority of unsafe abortions are performed in developing countries with restrictive abortion laws and a lack of quality abortion services. The World Health Organisation has observed that unsafe abortion is the cause of serious complications and disability for millions of women each year and a major public health concern which has grown in urgency and significance. 5 2 David A Grimes et al, 'Unsafe Abortion: The Preventable Pandemic' (2006) 368 The Lancet 1908, 1917 (citations omitted). 3 World Health Organization, Facts on induced abortion worldwide, January 2012 at http://www.who.int/reproductivehealth/publications/unsafe_abortion/abortion_facts/en/index.html 4 David A Grimes et al, 'Unsafe Abortion: The Preventable Pandemic' (2006) 368 The Lancet 1908. 5 WHO, Unsafe abortion: Global and regional estimates of the incidence of unsafe abortion and associated mortality in 2008 , Sixth Edition, 2011 at 31. 2 Tasmania’s health system may appear far removed from the developing countries in which the majority of unsafe abortions take place. Yet maternal mortality and morbidity resulting from unsafe abortions flows from the ‘universal risk factor’ which is ‘simply the fact of being female.’ 6 The maintenance of unclear and uncertain criminal provisions (see below) criminalises and stigmatises women and doctors and compromises access to health services. Unsafe abortion is no longer commonplace in Australia. But a study of Australian history a mere 40 years ago reveals a very disturbing picture of systemic failure to deliver fundamental rights to women. 7 As long as abortion remains within the ambit of the criminal law, the health and rights of women will remain vulnerable. It should be noted that the decriminalisation of abortion will not result in an increase in the number of abortions. The passage of the Bill may in fact see a reduction in the abortion rate if combined with advances in public awareness of (and access to) contraceptive methods. The proposed Sexual and Reproductive Health Strategic Framework represents a significant advance in this regard. The World Health Organisation has found that restrictive abortion laws are not associated with lower abortion rates. In contrast with Western Europe where abortion is permitted on broad grounds and the abortion rate is low, Latin American countries tend to have highly restrictive abortion laws and a relatively high number of abortions. 8 The liberalisation of abortion law has furthermore been associated with significant advances in health and well-being. 9 Reproductive health is fundamental to women’s health and wellbeing. With reference to a study published in The Lancet in January 2012,10 the journal’s editor, Dr Richard Horton made the following observation: Abortion is a subject nobody wants to talk about... abortion is ignored, marginalised, stigmatised, and yet it is absolutely central to the health of women worldwide… It's time for a public health approach that emphasises reducing harm, and that means more liberal abortion laws.’ 11 Access to reproductive health services is fundamental to women’s health and in the 21 st century should be regulated as a health matter and not as a matter of criminal law. The need for certainty and clarity in the law Part 3 of the Bill seeks to amend the current legislative framework. This framework is built upon 19 th Century English legislation which was repealed long ago and which pre-dated the guarantees afforded by international human rights law. Despite liberalisation of the Criminal Code Act in 2001, there remains a lack of certainty and clarity with respect to the legality of terminations in Tasmania. This lack of certainty and clarity is extremely problematic for numerous reasons. First, this state of legal ambiguity results in a depiction of the law as an ‘ass’. In Loane Skene’s words, “abortions 6 Rebecca Cook, ‘International Protection of Women’s Reproductive Rights’ (1992) 24 NYU International Journal of Law and Politics 545- 727 at 647. 7 Jo Wainer (ed) Lost: Illegal Abortion Stories (Melbourne University Press, Melbourne, 2006). 8 World Health Organization, Facts on induced abortion worldwide, January 2012 at http://www.who.int/reproductivehealth/publications/unsafe_abortion/abortion_facts/en/index.html 9 World Health Organization, Facts on induced abortion worldwide, January 2012 at http://www.who.int/reproductivehealth/publications/unsafe_abortion/abortion_facts/en/index.html 10 Gilda Sedghet al, ‘Induced abortion: incidence and trends worldwide from 1995 to 2008’ (2012) 379 The Lancet 625. 11 ABC News, Amy Simmons ‘Rise of unsafe abortions 'deeply disturbing', 19 January 2012 at http://www.abc.net.au/news/2012-01-19/rise-of-unsafe-abortions-27deeply-disturbing27/3782702 3 should not be illegal where they are performed frequently – even for relatively minor reasons – and there are no prosecutions. This makes the law seem foolish and weakens respect for it.” 12 Indeed, abortion is the only widely practised and publicly funded medical procedure that is also criminalised. 13 Second, if the law is uncertain then people do not know what conduct constitutes a breach of the law. In the abortion context, this applies to both women who are seeking access to abortion services and doctors who perform such services. For example, in a 2005 media release the Australian Medical Association (AMA) stated that: State and Territory Governments must clarify their laws on abortion in consultation [with] the AMA, the whole medical profession and the public… Doctors need to be working in a safe and clear legal environment. It is not acceptable for doctors and their patients to not know what is required for an abortion to be considered legal.” 14 Finally, a lack of legal certainty and clarity has the effect of limiting access to services and, in the case of Tasmania, has resulted in women travelling to Victoria in order to access essential health services. Obstacles to accessing abortion services have a disproportionate impact on women who are vulnerable due to socio-economic or other factors. Thus, for example, only women with some financial means are able to travel inter-state to access abortion services. Even though the Tasmanian Criminal Code provisions have not given rise to prosecutions in recent years, the maintenance of these provisions leaves women and their doctors in a precarious position. The existing potential for prosecution is not fanciful. The 2010 Queensland case of R v Brennan and Leach 15 demonstrates this point. This case concerned Tegan Leach and Sergei Brennan, aged 21 and 22 respectively. Upon discovering that Tegan was pregnant they decided to terminate the pregnancy and did so by asking Sergei’s sister in the Ukraine to post them the drugs needed to carry out a medical abortion. 16 Police discovered evidence of these drugs when searching their home for reasons completely unrelated to the abortion.