of abortion in Australia

305 Pages·2017·2.94 MB·English

“Gatekeepers” of abortion in
Australia:
Abortion law and the protection of
doctors

Jennifer Beattie
May 2018

A thesis submitted for the degree of Doctor of
Philosophy of the Australian National University

© Copyright by Jennifer Beattie 2018

All Rights Reserved.

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This is to certify that to the best of my knowledge and belief, this thesis contains no
material previously published or written by other persons except where due
reference is made in the text of the thesis. This thesis has not been submitted for
any degree in any other university.

The work in this thesis is my own except where acknowledged.

This thesis is 99, 095 words in length.

Jennifer Beattie
27 May 2018

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Acknowledgments
This thesis is the accumulation of many years of work, which could have not have
been completed without the help of a number of people. Firstly, I wish to extend
my gratitude to the doctors, academics, and health professionals that participated
in my research. Abortion is not an easy subject and so often polarises people when
it is discussed or when it emerges in the public sphere. Whilst the perspectives of
each person varied, a commitment to discussing abortion and surfacing the reality
of abortion practice did not. Each person gave his or her perspectives within a
frame of mutual learning, and for that I will be forever grateful.
I wish to thank my panel of supervisors led by Emeritus Fellow Dr Alastair Greig.
To Dr Greig, I am forever in your debt. Your academic supervision of my work was
of the highest calibre, and your friendship over the years was invaluable. You
consistently supported my decisions, but challenged me every step of the way. To
Emeritus Professor Toni Makkai, you gave me the impetus to complete a PhD and
made sure that I kept to task over the years – my thanks for all of your support. To
Dr Gavin J.D. Smith, your patience, advice and support throughout this journey
helped me to clarify my thinking and enabled me to complete this thesis. Your
constant energy meant that I could never let you down. To Associate Professor
Helen Keane I give my sincere thanks for your assistance in navigating the complex
world of Foucault. You have a unique gift in being able to explain complex in a
simple and meaningful way.
I also give my sincere thanks to Emeritus Professor David Hambly of the ANU
College of Law for his assistance in understanding the nuances of different legal
frameworks. Without his assistance I would not have been able to conceptualise
the law with sufficient rigor. I wish to thank Dr Annette Houlihan for sparking my
interest in the subject, encouraging me to pursue doctoral research, and believing
that I could. I also wish to thank Dr Jo Wainer for her assistance in understanding
the reality of abortion practice in Australia.
I acknowledge my friends and colleagues who pursued doctoral research at the
ANU during my period of study for their ongoing support and words of
encouragement. I wish to thank in particular, Dr Cat Ayres, Joe McCarthy, Dr Hedda
Ransan-Cooper, Dr Hannah Ky McCann, Dr Anna Tsalapatanis, and Clare
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Southerton. Thank you for sharing this journey with me.
I also acknowledge a small number of friends and family who made my journey to
completion more enjoyable. The reasons are too great to mention but I
acknowledge the support of Michael Beattie, Lisa Beattie, Aimee Milligan, Horang
Ehsani and Dr Kate Bisshop-Witting.
To my friend and mentor, Emeritus Professor Jill Julius Matthews, you taught me
more about life through this process than I would have otherwise discovered;
thank you for everything.
Finally, I acknowledge the constant support of my best friend and partner Joe Tran,
without which this thesis would not have happened.
For my darling daughter Edith, dream long and dream big; the world is yours.

This research is supported by an Australian Government Research Training
Program (RTP) Scholarship.

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Abstract

Abortion law in Australia is not consistent across the states and territories, but the
common characteristic is that an abortion can be lawful where a medical
professional is involved. A number of authors have therefore argued that this
positions doctors as ‘gatekeepers’ to abortions (Leslie Cannold 2000, Janet Hadley
1996, Heather Douglas 2009, and de Crespigny & Savulescu 2004). This
characterisation of ‘gatekeeping’ suggests that doctors perform a regulatory
function over women’s reproductive decisions. However, without examining the
emergence and the practice of this gatekeeping role, it only remains an assertion
that doctors regulate women’s abortion choices.

The design of this thesis draws on the work of Foucault, in particular his approach
to studying power. It accepts Foucault’s position that power exists only when it is
put into action (Foucault 1982, 788). My study of gatekeeping examines the
gatekeeping role through this lens, examining how the social expectation of
regulation for doctors established under the law aligns with how doctors practice
this regulation. With this in mind, the thesis draws sequentially on multiple sites
for investigation, including law, education and medical practice, moving from the
framing of abortion legislation through to the decision-making practices of doctors.

This thesis finds that the law in all Australian jurisdictions relies on doctors to
perform a function that is not legally or institutionally well-defined, but instead is
shaped by and relies upon the values and beliefs held by individual doctors. There
is thus a legal expectation of regulation established by the gatekeeping role, but
doctors can exercise their own judgement in how they choose to practice the role.
The thesis concludes that abortion law in Australia involves balancing the rights
and responsibilities of women and doctors in the context of the social
contentiousness of the abortion issue. The law balances multiple factors, from the
protection of women’s choices to women’s health needs, and the legality of the
doctor in facilitating access to the procedure to the rights of doctors to practice
medicine according to their own conscience. This results in variable consequences
for women seeking abortions, depending on the presiding doctor.

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Table of Contents
Chapter 1: Introduction..................................................................................................................... 8
Chapter 2: Literature review: making sense of ‘the abortion debate' .......................... 21
2.1. Perspectives on abortion ................................................................................................................... 23
2.2 Perspectives on medicine and power............................................................................................ 51
Chapter 3: Methodology .................................................................................................................. 65
3.1 The utility of Foucault .......................................................................................................................... 67
3.2 Research design ...................................................................................................................................... 69
Chapter 4: Legitimising the ‘gatekeeper’: constituting the authority of the medical
profession ............................................................................................................................................. 96
4.1 The origins of the crime of abortion and medical intervention ......................................... 99
4.2 The medical profession, the legislature and abortion in Australia ................................ 110
Chapter 5: The legal framework of ‘gatekeeping’ in Australia ...................................... 141
5.1 Decriminalised jurisdictions: Australian Capital Territory, Victoria and Tasmania144
5.2 Criminal jurisdictions: New South Wales and Queensland ............................................... 157
5.3 Hybrid jurisdictions: South Australia, the Northern Territory and Western Australia
............................................................................................................................................................................ 170
Chapter 6: Educating for ‘gatekeeping’: teaching abortion decisions ........................ 185
6.1 The decriminalised jurisdictions .................................................................................................. 189
6.2 The criminal jurisdictions ............................................................................................................... 205
Chapter 7: Practicing ‘gatekeeping’: doctors and their approaches to abortion cases
................................................................................................................................................................ 225
7.1 Scenario 1: Rachael ............................................................................................................................ 228
7.2 Scenario 2: Maria ................................................................................................................................ 233
7.3 Scenario 3: Emma ............................................................................................................................... 237
7.4 Scenario 4: Sarah ................................................................................................................................ 242
7.5 Scenario 5: Jane ................................................................................................................................... 245
7.6 Scenario 6: Mica .................................................................................................................................. 249
7.7 Scenario 7: Julia ................................................................................................................................... 253
7.8 Scenario 8: Tegan Leach .................................................................................................................. 257
Chapter 8: Conclusion ................................................................................................................... 265
Reference List................................................................................................................................... 279
Annex A: Call for participants ............................................................................................................... 294
Annex B: Participant information form – practicing doctors................................................... 295
Annex C: Letter to heads of medical schools ................................................................................... 297
Annex D: Participant information form – tertiary institutions ............................................... 298
Annex E: Research consent form ......................................................................................................... 300
Annex F: Protocol for medical educators in schools of medicine ........................................... 301
Annex G: Protocol for practicing doctors in in Australia – Part 1 .......................................... 302
Annex H: Protocol for practicing doctors in Australia – Part 2 ............................................... 303

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Chapter 1

Introduction

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Abortion law in Australia is not universal across the states and territories. It is
contained in both criminal and health statutes, with each state and territory
varying in how they approach the issue. Many of the laws historically have been
described as being “outdated, confusing and uncertain” (Douglas 2009, 74).
Furthermore, as Leslie Cannold (2011, Online) has noted, most women know of a
friend, a cousin or a sister who has had an abortion, despite the fact that women
are “not lawfully empowered to decide for themselves if they will continue or
terminate their pregnancy”. The range of different legislative frameworks can
create barriers for women to access abortions, with de Costa and Douglas (2015,
349) arguing that the result of the differences in legislation facilitates “extensive
abortion 'tourism' from all Australian states to Victoria, and overseas” (de Costa &
Douglas 2015, 349). Women are thus able to access abortions, with the most
recent comprehensive estimate suggesting approximately 80 000 women per year
(Chan & Sage 2005; see also Children by Choice 2017, and de Costa et al 2015,
105), but their capacity to do so is dependent on the law in each Australian
jurisdiction. This presents a problem frame for empirical examination of the issue
regarding how the provision of abortion occurs in the context of a complex
regulatory environment where no two jurisdictions are the same.

Abortion legislation in Australia was originally based on sections 58 and 59 of the
United Kingdom’s Offences Against the Person Act 1861 (Rankin 2001, 230).
Sections 58 and 59 of the Act stipulated that the intent to procure an abortion was
a crime for women and for those assisting them (Offences Against the Person Act
1861 (UK), 24 & 25 Vict, c 100, ss 58 as enacted). Each jurisdiction in Australia
subsequently made changes to the law at different points in time to allow for the
performance of abortions, but no two jurisdictions have taken the same approach.

Abortion remains a crime in New South Wales and Queensland where common law
rulings provide the basis for a defence of abortion for medical practitioners. In
Victoria, Tasmania and the Australian Capital Territory, abortion has been
repealed from the Crimes Acts where a doctor is involved. In the Australian Capital
Territory there is no reference to abortion in the Crimes Act 1900 (ACT), but
Victoria and Tasmania have retained abortion as a criminal offence if performed by
an unqualified person (Crimes Act 1958 Vic, s 65 and Criminal Code Act 1924 (Tas) s
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178D). In South Australia and Western Australia, abortion remains in the Criminal
Law Consolidation Act 1935 (SA) and the Criminal Code Act Compilation Act 1913
(WA) but health law and statutory provisions within criminal law provide legal
authority for the performance of abortions by medical professionals in certain
circumstances. This was also the case for the Northern Territory until March of
2017, when changes were passed to repeal abortion from the criminal code where
performed by a qualified person. The common characteristic across all
jurisdictions is the understanding that an abortion can be lawful where a medical
practitioner is involved. The involvement of medical practitioners in the provision
of abortion is the subject of this thesis, in particular how the role is established in
different jurisdictions and how medical practitioners understand their role.

In Chapter 2, the involvement of the medical profession in the abortion context will
be problematised, using a range of disciplinary perspectives on abortion and
medicine and power to illuminate the complexity of abortion regulation. These
perspectives are framed according to the claim from a number of authors that
abortion law positions medical practitioners as ‘gatekeepers’ to women’s
abortions, arguing that this role delegates the abortion decision to the doctor,
rather than the woman (see Cannold 2000, 24-25, Hadley 1996, 187, Douglas
2009, 77-78, and de Crespigny & Savulescu 2004, 202). This literature tends to
assume a gatekeeping role for the medical profession based on how the law
positions doctors in relation to women, but what we do not know is whether there
is an actual gatekeeping function being performed. Therefore we need to look
more deeply at what the role is, how it was formed, and how different social actors
interpret it.

The use of the word ‘gatekeeping’ implies a form of regulation based on the legal
position of the doctor rather than the actions of doctors. This is based on the fact
that the word gatekeeping refers to “The activity of controlling, and usually
limiting, general access to something” (English Oxford Living Dictionaries 2017).
Use of the term ‘gatekeeping’ to describe the role of doctors suggests that doctors
occupy a position that controls access to abortion, limiting the capacity of women
to exercise reproductive choice. Rankin (2001, 252) has argued “this places little
decision-making responsibility with the woman concerned; it merely grants
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