Australia unlikely and unwise to follow Roe v Wade

29 June 2022 By Simon Levett
Roe v Wade

The 1973 Roe and Wade decision has been recently overturned by the United States Supreme Court, throwing into disarray the hard-won right to have an abortion guaranteed by the United States constitution. The loss of the right to abortion – implied by the right to privacy in the constitution – was said to have been the result of an ideologically-driven Supreme Court.

Monash school of public health and preventive medicine research fellow Dr Shelly Makleff told Lawyers Weekly that the ruling was “a massive setback” in the United States and worldwide. She said that “the right to a critical health service is being taken away, with dire implications. People will be forced to give birth, people will be criminalised and the most vulnerable communities will be disproportionately effected.”

However, senior members of the legal profession have cautioned against the use of the United States as a precedent in the context of the Australian domestic jurisdiction.

The states and territories largely regulate the position as to abortion. Ian Neil SC – a barrister specialising in employment and industrial law – emphasised that there is limited appetite for reform with respect to the fact that “abortion law differs in between the states and territories in Australia”. Potential steps forward have been signalled by the decriminalisation of abortion in South Australia – and the failure of Western Australia to reform its criminal code with regard to abortion.

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Mr Neil said that “abortion is a matter for each state and territory. There are significant differences as between particular states and territories. For example, there are different approaches to the question of ‘gestational limits’ – that is, whether, and if so when during a pregnancy, abortion should cease to be a decision for the woman alone, and instead require the involvement of medical practitioners, and the point at which abortion should cease to be available.”

It is the states and territories which are in charge of the related safeguards to health legislation. For example, the state and territories typically provide a framework for late-term abortion where a woman is required to consult two doctors who would then give their opinion on whether an abortion is appropriate.

Mr Neil stated his belief that “the absence of a guarantee of universal and equitable access is a weakness in our approach to abortion”.  

He didn’t recommend use in a bill of rights setting as a potential step forward: “Other than some examples in particular states, a bill of rights is not a feature of the Australian legal and political system. Thinking about the American approach to their Bill of Rights does not tell us anything meaningful about what is happening, or should happen, in this country.”

Additionally, Mr Neil believes that Australians should not be distracted by the United States political system. He said that “we shouldn’t import American problems, where they do not exist in this country”. 

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He said: “The meaning and interpretation of the United States’ constitution is an American problem. We have our own, and different, problems – for example, inconsistent approaches to gestational limits as between different states and territories, and funding issues that restrict access to abortion for some women. Those are the kind of problems we should be focusing on now.”

The United States decision appears to be at odds with other liberal democracies. But Mr Neil SC said it is necessary to avoid comparisons between the Australian and the United States jurisdictions.

He said: “It is important not to reflexively translate what happens in America to this country, lest we import the bad with the good. Our legal, political and social mores are very different to those of America. Our legal system is a part of the common law tradition of which America is also a part, but our courts are not politicised as they are in America.”

Mr Neil SC observed: “For example, I have seen reports that a justice of the United States Supreme Court has stated publicly that we are seeing the Republican Supreme Court flexing its muscles. No Australian judge would ever make or such a statement, or countenance such a political and partisan approach to judicial decision-making. Political and socially we are not yet as deeply divided as America has become. Organised religion is not as influential, and politics is not as partisan.

“For example, same sex marriage and assisted dying are political issues in America, attitudes to which are markers of political allegiance. In Australia, our political institutions and traditions have enabled debate and produced consensus. In Australia there is a consensus, other than in Western Australia, that abortion should not be the concern of the criminal law.

“It is unthinkable that we would ever go backwards on so fundamental a principle. We should identify, reinforce and protect those valuable features of our legal, political and social culture and systems. We should not import American divisiveness.”

One way that the differences between the United States and Australia can be highlighted is in the difference with regard to gun control, where carrying a gun is a constitutional right in the United States. 

Mr Neil said: “The difference between the Australian approach to gun control after Port Arthur, and the continued inability of Americans to do anything rational about gun control, is a powerful illustration of the different legal, political and social mores in Australia and America.

Australia unlikely and unwise to follow Roe v Wade
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