A Reproductive Rights Framework Supporting Law Reform on Termination of Pregnancy in the Northern Territory of Australia

Dr Suzanne Belton, Felicity Gerry QC, Dr Virginia Stulz

Abstract


This article describes the reproductive rights framework underpinning the campaign to reform the law on termination of pregnancy in the period 2013 to 2017 in the Northern Territory of Australia.  We begin by outlining the pre-reformed legislation governing abortion in the NT. We then evaluate the reformed 2017 law using the typology established by Cook and Ngwena,[1] namely: (1) whether the law provides evidence-based access to health care; (2) whether it provides transparent access to health care; and (3) whether it provides fair access to health care. We finish by remarking on the continuing problems with the legislation and conclude that only complete decriminalisation will fulfil Australia’s commitments under the Convention on the Elimination of All Forms of Discrimination Against Women (‘CEDAW’) and other human rights instruments.


[1] Rebecca J Cook and Charles G Ngwena, 'Women's Access to Health Care: The Legal Framework' (2006) 94(3) International Journal of Gynecology & Obstetrics 216.


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References


A Articles/Books/Report

Australian Government Office for Women, Department of Prime Minister and Cabinet, ‘Australia's Eighth Report on the Implementation of the Convention on the Elimination of All Forms of Discrimination against Women August 2010–July 2014’ (Report, 15 December 2016)

Baird, Barbara, ‘Medical Abortion in Australia: A Short History’ (2015) 23(46) Reproductive Health Matters 169

Baird, Barbara and Suzanne Belton, 'Feminism on the Frontier: The History of Abortion Law Reform in 1973 in the Northern Territory, Australia' (2019) 28(1) Women's History Review 139

Belton, Suzanne, Caroline de Costa and Andrea Whittaker, ‘Termination of Pregnancy: A Long Way to Go in the Northern Territory’ (2015) 202(3) Medical Journal of Australia 130

Black, Kirsten, ‘Some Women Feel Grief after an Abortion, but There’s No Evidence of Serious Mental Health Issues’, The Conversation (online, 26 April 2018)

Cook, Rebecca J and Charles G Ngwena, ‘Women’s Access to Health Care: The Legal Framework’ (2006) 94(3) International Journal of Gynecology & Obstetrics 216

Cook, Rebecca J, ‘International Human Rights and Women's Reproductive Health’ (1993) 24(2) Studies in Family Planning 73

de Costa, Caroline, ‘Use of Mifepristone for Medical Abortion in Australia, 2006–2009’ (2011) 195(4) The Medical Journal of Australia 206

de Costa, Caroline et al, ‘Introducing Early Medical Abortion in Australia: There Is a Need to Update Abortion Laws’ (2007) 4(4) Sexual Health 223

Doran, Frances and Julie Hornibrook, ‘Barriers around Access to Abortion Experienced by Rural Women in New South Wales, Australia’ (2016) 16(1) Rural and Remote Health 3,538

Doran, Frances and Susan Nancarrow, ‘Barriers and Facilitators of Access to First-Trimester Abortion Services for Women in the Developed World: A Systematic Review’ (2015) 41(3) Journal of Family Planning and Reproductive Health Care 170

Douglas, Heather and Katherine Kerr, ‘Abortion, Law Reform and the Context of Decision-Making’ (2016) 25(1) Griffith Law Review 129

Family Planning NSW, 'Reproductive and Sexual Health in New South Wales and Australia: Differentials, Trends and Assessment of Data Sources' (Report, 2011)

Gerry, Felicity, Suzanne Belton and Jeswynn Yogaratnam, 'Reproductive Health and Rights in the Northern Territory: Reforming the Medical Services Act 1974' (Menzies School of Health Research, Charles Darwin University, December 2015)

Grayson, Narelle, Jenny Hargreaves and Elizabeth A Sullivan, AIHW National Perinatal Statistics Unit, 'Use of Routinely Collected National Data Sets for Reporting on Induced Abortion in Australia' (Report, December 2005)

Johnson, S et al, ‘Maternal Deaths in Australia 2006–2010’ (Research Discussion Paper No 4, Australian Institute of Health and Welfare, 2014)

Johnstone, Kim, ‘Indigenous Fertility in the Northern Territory of Australia: What Do We Know? (And What Can We Know?)’ (2010) 27(3) Journal of Population Research 169

Mulligan, Ea and Hayley Messenger, ‘Mifepristone in South Australia’ (2011) 40(5) Australian Family Physician 342

Nickson, Carolyn, Anthony Smith and Julia M Shelley, ‘Travel Undertaken by Women Accessing Private Victorian Pregnancy Termination Services’ (2006) 30(4) Australian and New Zealand Journal of Public Health 329

Nickson, Carolyn, Julia Shelley and Anthony Smith, ‘Use of Interstate Services for the Termination of Pregnancy in Australia’ (2002) 26(5) Australian and New Zealand Journal of Public Health 421

O’Rourke, Anne, Suzanne Belton and Ea Mulligan, ‘Medical Abortion in Australia: What Are the Clinical and Legal Risks? Is Medical Abortion Over-Regulated?’ (2016) 24(1) Journal of Law and Medicine 221

Petchesky, Rosalind P, 'Rights and Needs: Rethinking the Connections in Debates over Reproductive and Sexual Rights' (2000) 4(2) Health and Human Rights 17

Pregnancy Outcome Unit, SA Health, Government of South Australia, 'Pregnancy Outcome in South Australia 2013' (Report, October 2015)

Sifris, Ronli and Suzanne Belton, ‘Australia: Abortion and Human Rights’ (2017) 19(1) Health and Human Rights 209

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von Hertzen, H et al, ‘WHO Multinational Study of Three Misoprostol Regimens after Mifepristone for Early Medical Abortion. I: Efficacy’ (2003) 110(9) British Journal of Obstetrics and Gynaecology 808

Zhang, Xiaohua et al, 'Trends in the Health of Mothers and Babies, Northern Territory, 1986–2005' (Department of Health and Families, 2010)

B Cases

Department of Health and Community Services v JWB and SMB [1992] HCA 15; (1992) 175 CLR 218 (‘Marion’s case’)

DoCS v Y [1999] NSWSC 644

R v Bayliss and Cullen (1986) QDC 011

R v Brennan & Leach [2010] QDC 329

C Legislation

Crimes Act 1900 (NSW)

Criminal Code Act 1899 (Qld).

Criminal Code Act 2017 (NT)

Medical Services Act 2017 (NT)

Termination of Pregnancy Law Reform Act 2017 (NT)

D Treaties

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987)

Convention on the Elimination of All Forms of Discrimination against Women, opened for signature 18 December 1979, 1249 UNTS 13 (entered into force 3 September 1981)

Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entry into force 2 September 1990).

International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976)

International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976)

E Other

Commission on the Status of Women, UN ESCOR, 58th sess, Supp No 7, UN Doc E/2014/27-E/CN.6/2014/15 (10 March 2014)

International Confederation of Midwives, 'Midwives’ Provision of Abortion-Related Services' (Position Statement, The Hague, 2015)

Ipas, 'Maternal Mortality, Unwanted Pregnancy and Abortion as Addressed by International Human Rights Bodies' (Chapel Hill, NC, 2013)

Northern Territory, Parliamentary Debate, Legislative Assembly, 20 April 2016, Serial 150 (addressing the Medical Services Amendment Bill)

Queensland Health, 'Queensland Maternity and Neonatal Guidelines, Supplement: Therapeutic Termination of Pregnancy' (Queensland Clincal Guidelines, State of Queensland, 2018)

Royal Australian and New Zealand College of Obstetricians and Gynaecologists, 'The Use of Mifepristone for Medical Termination of Pregnancy' (Report, February 2016)

The Tabbott Foundation, ‘Australia’s Medical Termination Provider’ (Web Page)

UN Committee on the Elimination of Discrimination against Women, Concluding Observations of the Committee on the Elimination of Discrimination against Women: Australia', CEDAW, 46th sess, UN doc CEDAW/C/AUL/Q/7/Add.1 (12 July 2010)

United Nations Population Fund, 'UNFPA Welcomes Outcome of the 58th Session of the Commission on the Status of Women', UNFPA (Web Page)

World Health Organization, Safe Abortion: Technical and Policy Guidance for Health Systems' (2012)