For everyone Roe vs Wade: what does it mean for Australia?

With some right-wing politicians and ‘pro-life’ lobbyists bolstered by America’s new abortion laws, the fight to protect abortion rights in Australia remains ongoing, writes Myke Bartlett.

From an Australian perspective, the widespread outrage over a legal decision in America – the US Supreme Court overturning Roe vs Wade – might just seem another example of foreign politics overshadowing our own. But that distant decision is already influencing attitudes to abortion closer to home. The protests that followed in Australian cities not only demonstrated solidarity with women abroad but also a determination for rights be protected here.

Roe vs Wade was a 1973 landmark case in the US, where ‘Jane Roe’ (a pseudonym for the plaintiff, Norma McCorvey) took federal action against Henry Wade, the district attorney of Dallas county, Texas, where Roe resided. The case went to the Supreme Court, where it was decided that the Texas laws prohibiting abortion were unconstitutional. This decision paved the way for legal access to abortion. Almost 50 years later, on 24 June 2022, the Supreme Court overturned that decision, paving the way for individual states to criminalise the procedure. In short, it allowed states to decide whether abortion was or wasn’t illegal within their borders.

US president Joe Biden described the decision as “a tragic error”, urging states to enact laws to allow the procedure. In the first month following, 11 states – all in the South and Midwest – banned abortion completely or introduced a six-week ban.

This reversal is the result of decades-long conservative campaigning under the ‘pro-life’ banner. It was ultimately facilitated by Republicans – including disgraced former president Donald Trump – stacking the Supreme Court with right-wing hard-liners keen to roll back a key bit of progressive law-making.

Research has demonstrated that abortion bans most severely impact people in marginalised groups, who already struggle to access healthcare.

What made the reversal possible was the fact that the original decision relied not on the right to abortion so much as the right to privacy. It was considered that criminalising abortion would violate a woman’s constitutional right of privacy, found to be implicit in the Fourteenth Amendment. In the latest challenge to that judgement, the state of Mississippi argued that the original decision was controversial because it relied on a specific interpretation of the constitution (namely, how the right to privacy might confer other rights). The current, overwhelmingly conservative, Supreme Court agreed.

Republicans and other conservatives argue that rolling back the right to abortion protects the lives of unborn children. But, as feminists such as Caroline Criado Perez have pointed out, anti-abortion laws don’t actually save lives – quite the opposite, given women often have to resort to dangerous, illegal operations. And neither do they reduce the number of abortions. In fact, statistics show that abortion rates in countries where the procedure is legal (excluding China and India) have largely declined since 1990, while the average rate has increased by around 12% in those with severe restrictions on abortion.

Research has demonstrated that abortion bans most severely impact people in marginalised groups, who already struggle to access healthcare. Banning abortion also risks criminalising women who require the procedure when a pregnancy threatens their own life, not to mention those who have become pregnant as the result of rape.

Even if the impact of the American decision won’t immediately be felt on the legislature, it will undoubtedly embolden Australian conservatives.

The right to abortion in Australia was triggered by the decision of Victorian Supreme Court Justice Clifford Menhennitt in 1969, when he ruled that abortion was not illegal if a doctor honestly believed that a woman’s physical or mental health would be “seriously” endangered by a pregnancy. This sparked a number of similar decisions in states and territories across the country. However, the decision in itself didn’t grant Australian women the right to an abortion, but rather provided them with a defence against prosecution. It wasn’t until very recently that Australian states finally decriminalised abortion and, even now, they can be difficult to access.

Could Australian women lose their right to abortion? Yes. Unlike America, we wouldn’t see a bunch of old judges make that call, but a right-wing state government could – theoretically – roll back the decriminalisation of abortion in their jurisdiction. Even if the impact of the American decision won’t immediately be felt on the legislature, it will undoubtedly embolden Australian conservatives. Nationals MP Matt Canavan was quick to tweet that Australia is one of six nations where it is legal to get a “late-term abortion” – using emotive language familiar from American pro-lifers.

The good news is that the protests in support of American women did have an immediate impact on the debate here. When abortion reform laws came into effect in South Australia in July, Liberal leader David Speirs organised a pro-life “training” event to mark the occasion, aimed at encouraging young people to “fight for the human rights of the unborn”.

Speirs ultimately pulled out of the event in the wake of the protests. The fight to protect abortion rights in Australia will likely be ongoing, but solidarity will always be our strongest defence.

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