Project Logo

Protection of Conscience Project

Service, not Servitude
Legal Commentary

New frontiers in repressing dissent

11 March, 2013

Reproduced under a Creative Commons Licence*

Mishka Gora*

Tasmania may be small, but it will punch far above its weight on the world stage in shutting down protests against abortion if a new bill is passed. . . the real aim of the Labor-Green coalition which is running Tasmania is to criminalize abortion dissent.

Tasmanians learned on Friday, International Women's Day, that abortion is to be decriminalized. This left many confused. Some took it to mean that abortion is currently illegal; others wondered if the State Government had somehow "lost" the amendments to the criminal code that legalized abortion, at any stage of gestation, in 2001.

Abortion has effectively been legal in Australian states for more than 40 years, although it has remained in the criminal code. The number of prosecutions in all that time can be counted on one hand. So why the sudden enthusiasm for decriminalization?

Because the real aim of the Labor-Green coalition which is running Tasmania is to criminalize abortion dissent . With only two weeks for the public to respond, the Health Minister, Michelle O'Byrne, has drafted what may be most draconian abortion law anywhere.

The neighbouring state of Victoria decriminalized abortion in 2008. Ms O'Byrne says that this is the model for her bill. But the Victorian bill contains no penalties for conscientious objectors; the Tasmanian bill does. The Victorian bill doesn't mention counsellors; the Tasmanian bill threatens counsellors with jail. The Victorian bill doesn't mention protests; the Tasmanian bill threatens protesters with jail.

If this bill passes, a part-time volunteer counsellor for an organization supporting pregnant women could be jailed for a year and fined up to A$65,000 if she refuses to refer a woman to a place where she can get an abortion. The bill's definition of a counsellor includes anyone who gives "advice or information relating to pregnancy options" and "whether or not for fee or reward". Overnight, all agencies which disagree with abortion will be forced to shut down.

Medical practitioners will be obliged under threat of a $65,000 fine to make referrals if they have a conscientious objection. To anyone who believes that an unborn child has a right to life making a referral means cooperating with evil. The proposed laws are coercing participation in the overall process of abortion procurement.

The right to peaceful protest will also be shut down. The bill imposes a 300-metre-wide exclusion zone around abortion clinics. The maximum penalty is 12 months in jail and a $65,000 fine.

In the heart of the Hobart CBD a dingy, anonymous-looking building houses an abortion clinic. The exclusion zone incorporates not only four major thoroughfares (where protests and parades have traditionally taken place) but also Hobart's busiest Catholic church and the Anglican cathedral. A priest preaching against abortion in his own church, or participants in a prayer vigil, or someone wearing a pro-life T-shirt while walking through the city, or a photographer taking candid shots of street life could all be arrested. In Launceston, the other major city in Tasmania, the exclusion zone includes part of a Catholic hospital and a major park.

To make matters worse, the prohibited activity includes intimidating, protesting or photographing, and "any other prescribed [sic] behaviour". The sloppy wording, in combination with an open-ended section on regulations, could be used to punish innocent activity.

The Health Minister has been quite disingenuous about the scope and purpose of her bill in her statements to the media. She has mentioned none of these tyrannical measures and has given the public a mere two weeks to respond to one of the most far-reaching pieces of abortion legislation ever proposed anywhere.

What about doctors and nurses?

Although not required to perform abortions in normal circumstances, doctors and nurses are placed under a "duty to treat" if a pregnant woman is deemed to be at risk of serious injury. This means that doctors who believe it is best to treat the symptoms arising from pregnancy or to terminate the pregnancy via caesarean section or induction rather than an abortion would be forced to directly destroy a human embryo or foetus against their conscience and better judgment. It also means that Catholic hospitals will be required to offer abortion as a treatment option.

Sloppy drafting in the bill creates a range of potential problems. It extends the time that an abortion may be procured without specialist consultation to 24 weeks. This means that surgical abortions will not require a surgeon, thus decreasing the safety of the procedure.

The section protecting medical practitioners could, furthermore, be interpreted to allow abortions against a woman's consent if it is deemed "for the woman's benefit". Termination has been so vaguely defined that the medical procedures of induction and caesarean section are included, potentially making elective caesareans technically illegal.

The removal of Section 165 of the criminal code (which applies to circumstances other than abortion) opens a can of worms. It removes the protection for anyone (other than doctors) administering first aid to a pregnant woman in good faith; it abolishes the reduced charge of infanticide for women suffering from post-natal depression; and it replaces the words "death of a child before birth" with the dehumanising euphemism "pregnancy termination", even though the Births, Deaths and Marriages Registration Act 1999 requires notification of stillborn children (which includes an aborted foetus after 20 weeks) and their cause of death.

The spectre of "backyard abortions" has also been raised. The bill specifies that a woman who performs an abortion on herself is not guilty of a crime or any other offence. This means that abortions outside of the requirements laid down in the Reproductive Health Act, ie, unlawful abortions, will nevertheless be lawful for women self-administering an abortion, even though they may have no medical qualifications.

This inconsistency, deeming anyone who performs an abortion other than a doctor guilty of a criminal offence except if that person happens to be the pregnant mother, creates a dangerous temptation for desperate pregnant women and sets an alarming precedent.

The reasons behind this new legislation are also worrying. It is clearly aimed at allowing terminations on grounds that are not apparent prior to 12 weeks. Indeed, the Health Minister cited genetic abnormalities at the 20-week mark as a motivation for the change. This is blatant discrimination, and it sends the message that discrimination on such grounds as gender or disability is socially and legally acceptable. An accompanying information paper also blurs the distinction between abortion and contraception, extending the right of choosing when to reproduce (or not) to include abortion (which unlike contraception takes place after reproduction has occurred).

Tasmanian legislators are being offered a choice between abortion at any stage and abortion at any stage plus criminalizing dissent. The minister wants to make abortion a health matter, not a criminal matter. But she wants to achieve this at the expense of freedom of conscience, freedom of speech, and common sense. After all, if it is a crime to perform an abortion without medical qualifications or a woman's consent, shouldn't it be in the criminal code? The law as it stands is quite sufficient, and to alter it is nothing less than tyrannical.

Mishka Gora is a Tasmanian writer specialising in matters relating to war, conscience, and the former Yugoslavia. She is the media representative for Human Rights for the Unborn - Tasmania.

Creative CommonsThis article is published by Mishka Gora and under a Creative Commons licence. You may republish it or translate it free of charge with attribution for non-commercial purposes following these guidelines. If you teach at a university we ask that your department make a donation. Commercial media must contact us for permission and fees. Some articles on this site are published under different terms.



Print Friendly and PDF