Abortion Decriminalisation (QLD) and International Human Rights P2
15th Sep 2016
IHRL AND ABORTION
International human rights law generally takes the position that abortion is an issue of reproductive choice and bodily autonomy for women. The human rights invoked by the issue of abortion include:
- The right to life;
- The right to the enjoyment of the highest attainable standard of physical and mental health;
- The right for women to be free from discrimination;
- The right to equality before the law;
- The right to privacy and bodily integrity;
- The right to be free from cruel, inhuman or degrading treatment or punishment;
- The right to found a family; and
- The right to freedom of thought, conscience and religion.
Denying women the right to access pregnancy termination services violates their rights in many different ways. Decriminalising abortion is not about morally or ethically condoning it. It's about recognising the dangerous consequences of its criminalisation – for women, girls and medical practitioners. Criminalising abortion does not decrease abortion rates but merely increases unsafe procedures. The most effective way to reduce unwanted pregnancies is education and affordable and accessible contraception. Furthermore, not all abortions result from unwanted pregnancies. Some very wanted pregnancies can also end in termination for a variety of reasons such as foetal abnormalities and dangers to a pregnant woman’s health. Abortion is a medical issue. Approximately 13% of maternal deaths worldwide are attributable to unsafe abortion – between 68,000 and 78,000 deaths annually.
It is well established in Australian law and that of comparative jurisdiction and international law that human life begins at birth. The UN Human Rights Committee has called on a number of states to review laws prohibiting termination in order to secure the right to life, as a result of the number of preventable deaths caused by unsafe terminations. IHRL jurisprudence does not support the view that the right to life or the rights of the child prohibits or is contrary to lawfully performed pregnancy terminations or the ability to access pregnancy termination services.
The prohibition on sex discrimination is reflected in most international human rights treaties; foremost among them the 1979 Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW). The Australian government signed CEDAW on 17 July 1980 and subsequently ratified it on 28 July 1983. It prohibits discrimination on the basis of sex, which affects the enjoyment of human rights by women, and recognises a range of rights, including bodily autonomy and reproductive choice. Article 3 requires states parties to take appropriate measures to guarantee the enjoyment and exercise of these rights. Article 2(g) requires states to repeal provisions that constitute discrimination against women. The CEDAW Committee has stated that ‘it is discriminatory for a state party to refuse to legally provide for the performance of certain reproductive health services for women’. The CEDAW Committee has also, in its general recommendations, called on parties to ‘ensure that measures are taken to prevent coercion in regard to fertility and reproductive health, and to ensure that women are not forced to seek unsafe medical procedures such as illegal termination because of lack of appropriate services in regard to fertility control’.
In 2014, the UN Human Rights Commission recommended that states remove all punitive provisions for women seeking pregnancy terminations and permit pregnancy terminations under certain circumstances. In June 2016, the UN Human Rights Committee called on Ireland to compensate a woman who was refused a termination after the foetus was diagnosed with a congenital heart defect, and to remove its ban on pregnancy terminations.
Denying women the right to access safe and affordable pregnancy termination services violates their fundamental rights. The CEDAW Committee has stated that that forcing women to continue a pregnancy, especially in circumstances of rape or incest, or where there is a threat to the woman’s health, violates the right to health, and the right to be free from cruel, inhuman and degrading treatment. The consequences of a woman being forced to continue an unwanted pregnancy are also likely to impact on the enjoyment of other economic and social rights, including the right to the highest attainable standard of physical and mental health. One of the first actions of the Whitlam government was the signing by Australia of the ICESCR on 18 December 1972. Australia ratified the Covenant via one of the first actions of the Fraser government on 10 December 1975. In its General Comment 14, the ICESCR’s supervisory committee has interpreted the right to health as stipulated in ICESCR Article 12 to include ‘the right to control one’s health and body, including sexual and reproductive freedom’ (see UN Doc E/C.12/2000/4, 11 August 2000).
While practitioners should have a right to refuse to perform a termination on the basis of conscientious objection, the state has an obligation to ensure that such refusals do not amount to a barrier to access. In the International Covenant on Civil and Political Rights (ICCPR) to which Australia is a contracting party, the right to freedom of religion in Article 18 is qualified and limited by subsection (3) of that Article, which provides that the right to freedom of religion may be subject to limitations prescribed by law necessary to protect public safety, health or the fundamental rights and freedoms of others. Therefore, compared with the fundamental human right of women and girls to access safe and affordable pregnancy termination, freedom of religion is a more limited and qualified right. Decriminalisation of pregnancy termination is thus consistent with the right to freedom of religion pursuant to Article 18 ICCPR.
The current Queensland laws criminalising pregnancy termination do not reflect modern international community values. The laws are inconsistent with international human rights standards, which recognise the right to reproductive choice, access to safe, affordable healthcare, non-discrimination against women and girls, and equality before the law.
On 26 May 2016, Pyne’s bill was referred for inquiry to the Health, Communities, Disability Services and Domestic and Family Violence Prevention Committee. The Committee held public hearings in in Cairns, Emerald and Brisbane and received 1,400 submissions and provided its final 135-page report to Parliament on 26 August 2016. The Report recommended that the Bill not be passed.
During the inquiry it became apparent that merely removing abortion from the Criminal Code would leave a lacunae of regulation which was unlikely to succeed a conscience vote in parliament.
Therefore, on 17 August 2016, Pyne introduced a second bill into Parliament, the Health (Abortion Law Reform) Amendment Bill 2016, which proposes to regulate some of the matters that have been raised during the committee’s current inquiry. That is, it proposes an alternative regulatory framework for abortion under the Health Act, including that abortions after 24 weeks’ gestation would require the agreement of two doctors. The Committee had not commenced its inquiry into the second bill at the time of finalising its report, and advises that its report and recommendation does not include the second bill.
If the second bill is passed, abortion will be regulated like any other medical procedure, under health legislation and by expert medical practitioners.
Abortion reform is also hitting the headlines in NSW. NSW and Queensland are the only remaining Australian states that do not provide for legal abortions. The Queensland parliament is currently considering a bill to decriminalise abortion. Every other state and territory has passed laws that provide legal access to abortion services. NSW Labor MLC, Penny Sharpe, has introduced a bill seeking 150-metre anti-protest and harassment free zones around abortion clinics (Summary Offences Amendment (Safe Access to Reproductive Health Clinics) Bill 2016). Meanwhile Greens MP, Mehreen Faruqi, has also introduced a bill (Abortion Law Reform (Miscellaneous Acts Amendment) Bill 2016) seeking harassment-free zones and to remove abortion from the NSW Crimes Act.
The current laws in Queensland and NSW are unreasonably archaic, ineffective, and inefficient. They are neither reflective of modern community values nor of internationally recognised human rights principles and should therefore be amended post haste to catch up with the rest of the country, and the world.
Benedict Coyne is a human rights lawyer and advocate based in Brisbane at law firm Anderson Fredericks Turner. He is the national President of Australian Lawyers for Human Rights (ALHR). Benedict recently graduated with Distinction (the highest award) from a Master of Studies in International Human Rights Law at the University of Oxford. In 2009 he completed his undergraduate law degree at Southern Cross University and was awarded the university medal for outstanding academic achievement. Benedict is a passionate advocate for human rights both domestically and internationally and has received numerous awards for his work including the Australian Lawyers Alliance/Amnesty International 2014 National Emerging Lawyer of the Year Award and the 2015 Qld Civil Justice Award. He is also a founder of the international business and human rights consulting group “Synceritas” with a number of his Oxford University colleagues.
Disclaimer: The ALA would like to acknowledge that the image for this article is creative commons and was originally produced by Fred Jala accessed here.
The views and opinions expressed in these articles are the authors' and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).
 Article 6 of the International Covenant on Civil and Political Rights (ICCPR).
 Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR).
 Article 2 ICCPR; Article 2 ICESCR; Articles 1, 2 and 3 of the Convention of the Elimination of all Forms of Discrimination Against Women (CEDAW)
 Articles 14 and 26 ICCPR.
 Article 17 ICCPR.
 Article 7 ICCPR.
 Article 23(2) ICCPR; Article 16(1)(e) CEDAW.
 Article 18 ICCPR.
 Concluding Observations on Kenya (2005).
 Articles 12, 14(b), and 16(1)(e).
 General Recommendation 24  on women and health, para 11.
 Committee on the Elimination of Discrimination against Women: Zambia UN Doc A/49/38 (1994).
 United Nations Office of the High Commissioner of Human Rights, ‘Press release: Ireland termination ban
subjected woman to suffering and discrimination – UN experts’, 9 June 2016. See press release
http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=20077&LangID=E and findings
of the Committee
 Article 12 ICESCR.