Reproductive Health (Access to Terminations) Bill 2013

The Tasmanian parliament will soon have to decide on a Bill which would radically change abortion law in Tasmania. Public consultation on the first draft closed last week, and amendments are already being made. So far, DHHS has published 88 of the 140 submissions from organisations. Since it is not clear that the Department will actually publish the approximately 1910 individual submissions, Clare and I decided to publish ours in full here.
--Dan.

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Regarding the Draft Reproductive Health (Access to Terminations) Bill, Invitation to Comment.

We write to express strong objection to the proposed Reproductive Health (Access to Terminations) Bill 2013, as we believe that the Bill's provisions: 

1. are not founded on a philosophically defensible system of ethics, 
2. are incompatible with long-standing principles which are foundational to international human rights law, 
3. disproportionately criminalise conscientious objection, and 
4. will not reduce the demand for termination services.  

These objections can be further explained as follows (n.b. we use 'termination' and 'abortion' interchangeably, as does the Criminal Code Act)...

Objection 1: The Bill is not founded on a philosophically defensible system of ethics. 

In section 4, the Bill makes no stipulations as to circumstance surrounding a termination, and thereby tacitly grants Tasmanian women a right to termination by a doctor, for any reason, up to 24 weeks. In section 5, the terms of subsection (3) substantially expand subsection (2)(a)(i) by including 'economic and social circumstances', and in so doing effectively extend that same right to termination beyond 24 weeks with medical assent. 
This Bill effectively enshrines a new right that did not previously exist in Tasmanian law. Indeed, section 134 of the Criminal Code Act, entitled "Abortion", explicitly denied that abortion was a right at all. So, the Bill must now be viewed not simply within the narrow context of medical ethics, but within a much broader philosophy of human rights.

Anybody who attempts to devise an ontology of rights must surely come to the conclusion that a living human being's right to continue living is the most fundamental right, and is the right to which all other rights must be subordinate. If that is the case, a situation where two human beings appear to have conflicting rights (e.g. a right to life versus a right to abortion) requires adequate resolution. To avoid resolution by simply legislating that a right to termination is superior to the right to life without any further consideration is philosophically indefensible, and the Information Paper which justifies the Bill does not even attempt to resolve this conflict of rights.  

By making different provisions for termination before and after 24 weeks, the Bill implicitly admits that carte blanche access to termination must eventually warrant some degree of further safeguard -- in this case, at some date around viability. If it is lawful to terminate an unborn child who is already viable, then an ethicist such as Peter Singer would understandably ask why it should be unlawful or unacceptable to 'terminate' a child who has already been born, provided the medical justifications are consistent. Thus, by arbitrarily determining the legality of terminating a viable infant only on the basis of whether it is presently in utero or ex utero, the Bill demonstrates that it is not actually based on a consistent system of ethics. So, in all seriousness, if Tasmania chooses to allow termination past 24 weeks for such weak justification as economic circumstances, by what logic should Tasmania not also legalise infant euthanasia with the consent of two doctors and take infanticide out of the Criminal Code Act?  

Objection 2: The bill is incompatible with long-standing principles which are foundational to international human rights law. 

Since the Bill in effect creates a legal right to termination, the correct context for discussing the Bill must be human rights, not merely medical ethics, as mentioned above. This requires deference to the Universal Declaration of Human Rights (UDHR) and the United Nations Convention on the Rights of the Child (UNCRC). These documents give special priority to the right to life, and recognise all children (including those in utero) as human beings who deserve the State's protection. 

The preamble to the Declaration of the Rights of the Child, adopted in 1959, explicitly stated that "the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth". In 1990, that same sentence was quoted verbatim again in the preamble to the United Nations Convention on the Rights of the Child. International law thus recognises unborn children as human beings who are worthy of special protection. When ratifying the UNCRC, Australia's only stated reservation concerned the practicalities of segregation of children and adults in custody (Article 37.c). These documents themselves follow on the UDHR, ratified 65 years ago. UDHR Article 3 simply states that "everyone has the right to life, liberty and security of person", and Article 2 recognises that "everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status." 

Consequently, Australian lawmakers must protect the welfare of the child "before as well as after birth" when considering any legislation. Above all, legislators must consider Article 6 of the UNCRC: "States Parties recognize that every child has the inherent right to life. States Parties shall ensure to the maximum extent possible the survival and development of the child." However, the proposed Bill is unbalanced as it only requires doctors to consider the mother's welfare, and not that of her unborn child; there are, in fact, two patients involved. 

The Bill's quiet removal of Criminal Code Act section 165 ("Causing death of child before birth") is a backward step for Tasmania, and is inconsistent with our obligations under the UDHR and UNCRC. If anything, section 165 of the Criminal Code should instead be re-worded to recognise the fact that a 'child before birth' is indeed a 'human being' in every sense of the term.  

Objection 3: The Bill will disproportionately criminalise conscientious objection. 

The purported intention of the Bill described in the Information Paper is to remove termination from criminal law and place it within "a health based Act". Ironically, the Bill introduces new criminal law into health-related law. This betrays the fact that the Bill is ideologically driven, as conscientious dissenting voices are singled out for special sanction. 

The first new sanction in section 7 -- penalising a practitioner or counsellor who, for the sake of conscience, will not refer a woman to a non-objecting provider -- constitutes an unnecessary and disproportionate overreach of the law into the work of healthcare providers. It is unnecessary because anybody can open the Yellow Pages or Google to find a provider that advertises termination services. It is disproportionate because the Bill gives doctors a wide scope of factors to consider in conscientiously offering a termination after 24 weeks, but no scope at all to conscientiously object to participation by referral.  

The second new sanction of section 9 is also unnecessary and disproportionate. It is unnecessary because assault and intimidating behaviour would already constitute an offence under the Criminal Code Act sections 182, 184, 184A and 192. It is excessive, because quiet and peaceful protest against abortion within large areas of our cities would become an offence punishable by imprisonment. This is contrary to customary liberty of free speech, and again betrays the ideological origins of the Bill.  

Objection 4: The Bill will not reduce the demand for termination services. 

The Information Paper accompanying the Bill needs consideration, because the Bill is defective if it fails to meet the objectives and intentions of the Bill's proponents. With that in mind, we note that on page 8 of the Information Paper are listed reasons why "despite best (and early) efforts, a woman may not be able to see a provider" and may be "faced with continuing an unplanned and unwanted pregnancy" if they cannot afford to travel elsewhere. The intention of the Bill is to increase access to termination providers to individuals who might otherwise miss out, which (in the absence of any additional measures to mitigate unwanted pregnancy) can only mean that a greater number of terminations will occur. This means that the Information Paper is being disingenuous when it asserts "the revised framework proposed for Tasmania will not increase the overall incidence of Tasmanian women having a termination". 

Further, the Bill grants social and economic factors as valid considerations for termination even after 24 weeks. A humane society, rather than aborting children of the disadvantaged at any stage of gestation, should instead offer every possible assistance and service to parents and their children so that such desperate measures need not be contemplated. 

In conclusion, we urge our elected representatives to reject this Bill and instead take measures that will empower parents and protect children, before as well as after birth. We thank the private members and the Department for inviting public comment on the draft Bill. 

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