Roe v Wade and Australia

Note from Tim Dunlop: As promised, I am commissioning articles for this newsletter, and the latest one is below, by lawyer and writer, Lizzie O’Shea. More are in the pipeline. Your subscription supports the publication of these articles and all the work published here. Thank you.

Lizzie O'Shea is a lawyer, writer, and broadcaster. She specialises in human rights and Aboriginal rights in Australia, has represented refugees, activists, and people targeted by national security legislation. Her writing has appeared in the New York Times, The Guardian, and The Sydney Morning Herald, among others. She sits on the boards of numerous non-profit community organizations, including Digital Rights Watch Australia. Her book, Future Histories: What Ada Lovelace, Tom Paine, and the Paris Commune Can Teach Us About Digital Technology, was listed for the Victorian Premiers Literary Award.

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Roe v Wade has fallen, and millions of American women will no longer have access to abortion services.

While reproductive health care rights should never be taken for granted, it is also fair to say that what has happened across the Pacific could never happen here. Women’s rights in Australia are far more robustly protected than those of our American sisters.

There are significant reasons for this, and this is an opportune moment to reflect upon them.

Photo by Gayatri Malhotra on Unsplash

Most obviously, a lack of federal human rights protections in Australia has meant that no precedent like Roe was able to be generated via the common law. Instead, the right to access certain kinds of healthcare has always been a matter for the states.

So, while we did not have a legal hare in the form of Roe sprinting forth from the 1970s, we did have a tortoise in the form of a movement for women’s rights that slowly built over time to target the diffuse distribution of power that governed reproductive rights across the country.

Private hospitals like the Fertility Control Clinic in East Melbourne, were set up a year before Roe was decided, as a sanctuary of women-centred healthcare and as a form of practical and political resistance to the dangers of backyard abortions. Steve Rogers, a security guard at the clinic, was murdered by an anti-abortion fanatic in 2001, and this moment became a turning point.

Feminists and allies organised, and doggedly campaigned for reform, with decriminalisation occurring in Victoria in 2008 (the first state on the eastern seaboard), before the introduction of safe access zones in 2015 (second to Tasmania). Decriminalisation followed in NSW and Queensland, as well as the introduction of safe access zones which are now in place across all states and territories. This was a broad ranging movement for change, working in complementary ways across state borders, unfolding over decades.

In retrospect, it feels paradoxically fortunate that Australian feminists were denied a legal watershed moment like Roe. It prevented advocates us from focusing too heavily on courts as a crucible for their rights, the precarity of which is now being brought into sharp relief in the United States.

Ruth Bader Ginsburg, of all people, seemed to instinctively grasp the political consequences of the radical change that Roe represented: “My criticism of Roe is that it seemed to have stopped the momentum on the side of change,” she said in 2013, which gave “opponents a target to aim at relentlessly.”

Instead of being a decision that passively endorsed the liberalisation of reproductive rights, and the ongoing dismantling of barriers to women’s equality, Roe definitively ended the drive for reform at a state level, according to Ginsburg. Moreover, American jurisprudence about reproductive rights was fixed through the concept of privacy, whereas Ginsburg thought it would have been preferable for the issue to be determined through the lens of equality for women.

Ginsburg’s observations have proven prescient. Recent decades have seen intense organising efforts by American conservatives and the religious right to defeat Roe, and the legal narrative about abortion has included discussions about the interest of the state in women’s reproductive choices, in contrast to concepts of bodily autonomy. The reality is that even with Roe in place, these factors combined have made access to abortion for millions of American women difficult in recent decades, if not practically impossible.

This trajectory is even more significant when we consider that a majority of Americans ( 61%), think abortion should be legal in all or most cases. Indeed, a majority of moderate Republicans (60%) agree with this statement. In other words, the fall of Roe and the failure of Congress to address it represents a failure of two of the three organs of state power to reflect the will of the people. Neither the Supreme Court, nor the representative assemblies of Congress and the Senate reflect the views of the majority of Americans on this topic.

There a plenty of reasons for this, but the point is that reproductive rights is a field in which the electoral choice between two undesirable options is repeatedly put forward by a certain few as the sole method for achieving change. This is strategically untenable. 

How do such moments of political asychronicity resolve for those interested in progressive reform?

In Ireland, we saw this unfold with a people’s assembly, which made recommendations for decriminalising abortion. This proposal was then put to the people in the form of a constitutional referendum and was democratically endorsed. As Joan C Williams put it, when ‘young people knocked on grannies’ doors and persuaded them to vote to legalize abortion’ it set an example of how to open up a space for dialogue on the issue – space that has notably been lacking in the US.

This was possible precisely because the issue was determined outside of the realm of electoral politics and relied on bottom up organising to convince everyday people that reform was needed.

In Australia, state legislatures went through rigorous, even gruelling, parliamentary debates around decriminalisation and safe access zones (much of which is documented in a book I co-authored with Dr Susie Allanson, called Empowering Women). This was the result of decades of grassroots feminist organising, often replete with discouraging moments and draining time commitments. This kind of activism creates opportunities for change (as well as a fair few near misses) including in both parliaments and courts.

In Victoria at least, it was also the result of working with an outsider in Parliament in the form of Fiona Patten of the Reason Party, who was elected to office and put the issue front and centre, forcing the major parties to act.

Perhaps then the prospect of a post-Roe America, while devastating, should not be considered fixed or final. Rather it represents a chance to finish what was started prior to, and paused by, the original ruling.

That is: a movement for policy change at the grassroots that brings to bear the views of everyday Americans on those that are supposed to represent them in the institutions of state power. It must be a political movement that centres on women’s autonomy over their own bodies, and their capacity to be treated equally to men, as authors of their own destiny.

There are models for these kinds of movements, in Ireland and Australia among others, that are worth following.

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