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Health care or crime? Decoding SA's abortion debate


A Bill before Parliament seeks to remove abortion from the criminal code, but one element has attracted focused opposition. Judith Dwyer argues that abortion law reform is primarily a health issue.

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The Termination of Pregnancy Bill to be introduced by the Attorney-General in the House of Assembly next week will remove abortion from the criminal code, where it has sat unchanged for more than 50 years, and in doing so remove some outdated restrictions.

This might be a surprise – about 70% of South Australians don’t realise the law still makes abortion a crime.

The Bill will position abortion care under the general health law and its supporting regulations, policies, conduct codes and ethics. It is based on an extensive review by the SA Law Reform Institute in 2019 and expert advice from SA Health, and was passed by the upper house in December with a majority of 12:9.

If it passes in the lower house, it will bring us into line with the rest of the country. But the task will be challenging.

If the Bill passes

Abortion will no longer be a crime, but more importantly the conditions under which abortion care is provided will change. Patients will be able to have Early Medication Abortion (EMA), without twice attending one of a few ‘prescribed’ hospitals that might be far away. International students and travellers returning to SA won’t have to wait two months before they are eligible for abortion (and won’t have to undergo a more complex procedure). Women in regional and remote SA will be able to receive care closer to home with more privacy.

Patients facing the complex and distressing circumstances of needing an abortion after 20 weeks will be able to access the care they need, as recommended by their doctors. These later abortions are not needed often, but when they are it’s really serious. Most often because of fetal problems, but also because of the patient’s own illness or injury, or other dire problems (such as those facing vulnerable young victims of sexual abuse).

After 23 weeks, each abortion will be legal only if two doctors consider it to be ‘medically appropriate’.

Doctors and other health professionals with conscientious objections to abortion will be protected, provided they give the patient information about where they can get the care they need.

Why it is hard to get this done

Abortion is a really common experience for women – at least one in four of us have one during our lives – but we don’t normally talk about it much. When the topic is brought out for a turn in the spotlight, the conversation can get ugly. There are no MPs saying they oppose decriminalisation, yet several planned amendments will seek to replace the old crimes with new restrictions, all aimed at making it harder for patients to access the care they need and for doctors to provide it.

New restrictions are advocated on various grounds, including women’s safety, without a good foundation in evidence. EMA is targeted with one amendment that would restrict access to those who are within 50K of a hospital that has emergency facilities. Both Viagra and EMA carry a negligible risk of death, yet no-one suggests such a law to keep men safe. (Please note that only one SA patient has died from any form of abortion in the last forty years.)

But later abortion is the main target, sometimes offensively described as ‘abortion up to birth’ – this is nonsense. The suggestion that the absence of a special prohibition against later abortion will lead to a free-for-all is an insult to women and to doctors. There is no special ban on cutting off your arm either, but if you ask a doctor to amputate a healthy arm, it won’t happen.

I have worked in the health system for about 30 years, and I can tell you that in the real world, women do not seek, and doctors do not provide, later abortions that are not seriously necessary.

Where this comes from

The battle is fundamentally about how legislators frame abortion. The pro-reform side argues that abortion care should be regulated as health care, with compassion and safety for patients.

Health care regulation is comprehensive, covering everything from radiation safety to informed consent, from patient confidentiality to who is credentialled to do what surgery, from facility standards to how to make a complaint. There are 25 Acts administered by the Health Minister, hundreds of mandatory policies issued by the Department for Health and Wellbeing, and a slew of Commonwealth Acts and policies as well.

Supported and guided by this framework, highly qualified health professionals are constantly updating their skills, exercising clinical judgement and offering good advice to patients. They are guided by deep principles, encoded in health law and policy, that require health professionals to offer appropriate care to each patient on the basis of need, in keeping with their professional ethics. This is what ‘medically appropriate’ means.

The community generally supports this approach, and most people now see abortion as a matter between a patient and their doctor. Even later in pregnancy, my own recent research indicates that most of the SA community supports access to abortion care ‘when the woman and her health care team decide it is necessary’ (about 84% of us in all or most circumstances).

Opponents of the bill believe first that abortion is morally wrong, and second that therefore the parliament should as far as possible obstruct access to safe and compassionate care. Their problem is that most of the community doesn’t agree (only 5-7% of us think that abortion should never be permitted).

We all have our own views about the moral status of abortion, but most of us don’t think our views should be imposed on others by law.

Next steps

So now the Parliament must decide how far to go in making special rules for abortion. Extra rules might look helpful when viewed from a green bench in Parliament House. But they usually also complicate the delivery of good health care, cause stress or delay for patients, and risk placing doctors in the difficult position of law enforcer as well as care provider.

We know this from the increasing problems arising from the 1969 law over time. The new law needs to be future-proofed.

In the end, the best solution is to trust the patients and the doctors to make the right decisions, day-by-day, in consulting rooms and kitchens, based on all the complex considerations that apply for each patient. For their sake, it matters that we get this right.

Adjunct Professor Judith Dwyer is a former CEO of Flinders Medical Centre and Southern Health Care Network in Melbourne, and former Director of Research in the Department of Health Care Management in the College of Medicine and Public Health at Flinders University.

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