The decision of Dobbs v Jackson is a setback for women’s health and safety that is being felt all around the globe, writes Libby Thomas.
History of abortion laws in the US
Roe v Wade was a monumental decision in the United States (US). A single pregnant woman (Roe) challenged Texas criminal abortion laws, which prevented a woman from procuring or attempting an abortion, except on medical advice for the purpose of saving the mother’s life. The court ruled that the constitution of the US protects a woman’s liberty to choose to have an abortion, which consequently abolished many longstanding federal and state abortion laws. The only catch was that different states could decide whether abortions were allowed in the second and third trimesters.
Following the decision of Roe v Wade, there were many countries that legalised abortion as they looked to the US as a leader and a model for the world.
Twenty years later, in Planned Parenthood v Casey, the Supreme Court reaffirmed the basic principle of Roe v Wade, that women have the right to obtain an abortion prior to foetal viability, but overturned the trimester-based framework.
Dobbs v Jackson
On 24 June 2022, both Roe v Wade and Planned Parenthood v Casey were overturned in the decision of Dobbs v Jackson, which revoked a woman’s right to abortion.
The decision of Dobbs v Jackson abandoned almost 50 years of precedent, destroyed the protections of Roe v Wade and ruled that there is no constitutional right for women to abortion. The case considered the constitutionally of a Mississippi state law that banned most abortion operations after the first 15 weeks of pregnancy, and the majority opinion was that abortion was not a constitutional right.
The impact of Dobbs v Jackson and what this means for Australians
The consequences of the US Supreme Court’s decision mean that it is up to the individual states to decide on abortion laws. This is similar to how abortion laws are determined in Australia.
Abortions are legal in at least some circumstances in all the states and territories of Australia. All states and territories impose some limits on where they are permitted, except for the ACT. Abortions have also been decriminalised in all states and territories except for Western Australia, where abortion is still regulated using criminal law (South Australia’s reforms commence in a few weeks).
Here in Queensland, women who are less than 22 weeks pregnant may request an abortion, for any reason, without disclosing the reason to the doctor. An abortion after 22 weeks may only be performed if two doctors agree that it should be performed. An abortion may be performed at any time if the mother’s life is at risk. Furthermore, doctors who have personal objections to abortions are legally required to refer patients to a non-objecting doctor. NSW, Victoria, Tasmania and the Northern Territory impose similar regulations.
Every state and territory in Australia now has a buffer zone around abortion clinics to prevent harassment of patients and staff.
Accessibility and cost, on the other hand, appear to be the more challenging factors for Australian women. In Tasmania, there are a limited number of public providers of abortions and only one known private provider of surgical abortions. There are also some doctors who object to abortions but don’t refer patients to another doctor. As to the cost, Queensland women can expect to pay up to $3,000.
As a result of Dobbs v Jackson, eight US states have already reintroduced laws to ban abortion in all circumstances, including rape and incest. Doctors could face life in prison and fines of up to $100,000 if they perform abortions in violation of the law. This will force people to travel thousands of kilometres to access abortion care or to carry pregnancies against their will.
In a 6:3 vote, reproductive freedom has been ripped away from all women in the US. Women who have been raped will be forced to carry pregnancies to term. Women who are informed of a diagnosis of severe congenital defects and that the child will not survive once born will be forced to carry pregnancies to term. Women who are diagnosed with a life-threatening pregnancy-related condition will be forced to carry pregnancies to term. Women who realise that they are in no way physically, emotionally or financially able to be a mother will be forced to carry pregnancies to term. And any medical practitioner who tries to help them will be criminalised.
The decision of Dobbs v Jackson is a setback for women’s health and safety that is being felt all around the globe. Of the many challenges that women and girls are faced with, we need to make progress, not move backwards. Women in the US today have less rights than what their mothers and grandmothers had. And this is 2022.
Libby Thomas is a lawyer at Travis Schultz & Partners.