An Australian Perspective on Abortion

In the aftermath of the Dobbs v. Jackson Women's Health Organization decision that overturned Roe v. Wade, it would be beneficial for all Americans, regardless of whether they are cracking the champagne or drowning their sorrows in gin, to consider what will come next.

The closest example of a counterfactual to Roe v. Wade is Australia, where there is a federal system with no unifying law or ruling concerning abortion.

In Australia, abortion has always been a matter for state parliaments—the legislative arm of government. Thus, each state has had different laws regarding abortion, and this is not such a terrible thing. Leaving morally complex questions, such as abortion, to each state has been a blessing.

Regardless of one's views on abortion, the Roe v. Wade decision was always understood to be in a precarious position and vulnerable to overturning if judges with more fealty to the text of the US Constitution (as written) than to precedent (how it has been interpreted) were appointed to the Supreme Court.

This has created the toxic division in America that preceded today's complaints about hyper-polarisation. The Roe decision had the opposite effect to the one intended. It didn’t put the abortion question to bed but made it an issue that has motivated the extremes and politicised the Supreme Court. I would even argue that it created the false binary of “pro-choice” and “pro-life.”

I reject the “pro-choice” and “pro-life” labels, as, even in America, polls show that most people’s views sit somewhere on a continuum between the rights of the (potential) baby and the rights of the (potential) mother. The staunchest defenders of the rights of the unborn agree that abortion is necessary when the mother is at risk, and, even amongst die-hard campaigners for women’s choice, there are very few willing to defend very late-term abortion on demand (or partial-birth abortion, as it is known).

That these slogans are framed as being for something is an indication that both sides want to protect something. Both slogans are half-truths. Abortion is a serious moral issue and anyone who wants to pretend otherwise has not thought deeply about it. The overturning of Roe is an opportunity to simmer down a bit and actually engage with the question of abortion in a far more reasonable way than the fever pitch at which the US debate currently rages.

One can only hope.

Slow and steady change

One of the statements that shocked Joe Rogan in his recent debate with Australian radio host Josh Szeps was that New South Wales (the state in Australia where both Szeps and I live) only removed abortion from the criminal code in 2019.

That didn’t mean that abortions didn’t happen. Doctors could perform abortions if the applicants fit into several broad categories where exemptions applied. These exemptions from the general prohibition on abortion covered most reasons why a woman might not have the physical, mental, or material ability to bring the pregnancy to term. What the law criminalised were abortions not performed in a medical setting and for the proper reasons. This law was as much about removing women from “backyard abortionists” and coercion as it was about regulating abortion so that a balancing of rights and interests could occur.

This is something lost in the US debate, where a false binary, yet again, is presented of abortion being “legal-or-not” rather than “legal-depending-on-the circumstances.” Polling shows this is how a significant majority of the population thinks it ought to be.

New South Wales now allows abortion on demand for up to 22 weeks. This is fairly standard across Australia, where the most restrictive states limit on-demand abortions to before 14 weeks and the most liberal limit it to 24 weeks. Even Victoria, the state with the most left-wing government and most relaxed laws around abortion (the “California” of Australia, if you will) restricts late-term abortions to medical emergencies only.

Coincidently, Victoria was the first state to legalise abortions after a landmark ruling called the Menhennit Case, the story of which was made famous by the film Dangerous Remedy, but, unlike the Roe decision, this case was based on state law and so only applied in Victoria.

Removing abortion from the criminal law and implementing on-demand abortion is a phenomenon that began in the 2000s. It was mostly driven by women unwittingly falling foul of the laws that limit legal abortions to those performed by a doctor, for example, by ordering abortion pills online.

For the most part, however, the story of abortion in Australia is one of slow change on a state-by-state basis as both attitudes and technology progress.

But slow change is no bad thing. It is far more stable and sensible than changing the legal landscape from one day to the next, which is what a top-down decision does. Those reeling from the Dobbs decision are probably experiencing what those who opposed unrestricted abortion felt in 1973 when the Roe decision was handed down.

Not having to deal with a Roe-like decision has been an advantage in Australia. It has meant that those wishing to change the law have needed to make the case for it in terms with which most people would agree. The views of social conservatives must be considered to be successful with the electorate. The parliamentary process discourages changes that are too quick and don’t bring the public along with them.

Allowing no great leaps forward also means that there is a limited risk of going back too far. If those wanting to restrict access to abortion were to submit a bill tomorrow, the proposal would be subject to scrutiny and would probably change the law only very slightly.

This is the way it should be when it comes to an issue like abortion, where both sides have an insight or something of value that they are campaigning for. Only legislation with the requirement to engage in debates and amendments can properly reflect a balancing between these positions.

Uncertainty

On my first day as in-house legal counsel for a medical company, a large folder landed on my desk. We were being sued for wrongful birth. If there is one thing all lawyers want to do when such a folder is given to them, it is to settle out of court. There is extremely limited precedent in Australia for these types of cases, so they could go either way. No matter what the court’s decision is, the name of the company or individual you represent is going to end up in law students’ textbooks.

For those readers who are non-lawyers, a wrongful birth case is a tort case brought by a complainant arguing that if it wasn’t for a party’s negligence, a child would not have been born. In cases where the negligence occurred pre-conception (e.g., a botched sterilisation procedure), claimants have been successful. But there has never been a successful case where the argument was that, had the third party not been negligent post-conception (often the sonographer or obstetrician), the person making the claim would have had an abortion and, therefore, the child would never have been born.

Aside from this being, historically, an area in which judges have not wanted to intervene (at least in Australia), one of the reasons these types of cases have tended to be unsuccessful is that there is no way to guarantee that the mother would have gotten an abortion. There is too much uncertainty.

It rhymes with another very morally complex issue, euthanasia, for which, no matter what one's leanings are during life, when it comes down to it, the choice is never truly ours alone in the end. I have known of an atheist with Parkinson’s disease who had said he wanted to end it before the disease progressed dying a natural death in the end, and a devout Catholic with lung cancer deprived of proper palliative care taking every pill in the house rather than suffering on. It is only when faced with the precise circumstances of their death that people really know what they will do.

This is also true when it comes to extinguishing life in utero. Both sides of the abortion debate seem naive as to how much autonomy—the very thing that both sides of the argument rest their case on—can be limited when life gets messy.

This is why abortion can never be black and white. It will, at least for the conceivable future, be bad—but the least bad option—for some women whose circumstances are sufficiently terrible, and it will also always be an egregious wrong when women who wanted the child are forced by circumstances to end the pregnancy.

There are uncomfortable truths that both the “pro-choice” and “pro-life” positions seem determined not to grapple with, but the only good abortion laws are the ones that rely on full truths, not half-truths. The only worthwhile debate starts with recognition of the wisdom of one's opponent.

Uncomfortable truths

Sex and responsibility

The pill and the availability of abortions revolutionised relations between the sexes but not in a wholly good way. A famous 1996 paper co-authored by Janet Yellen theorised that single motherhood skyrocketed in the 1970s in part because of the “technology shock” of the pill and legalised abortion, which made “shotgun” marriages less common. Logically, more bodily autonomy should have decreased the instance of fatherless children, but with more choice came more responsibility. If a sexual encounter left a woman with a child, it was now her fault; she should have been on the pill and, if that failed, got an abortion.

In previous decades, there was an understanding that the male partner played an important role in the creation of a baby and if a baby were to arise from a relationship, then he was encouraged to marry the woman in question. Today, we think of shotgun marriages as backward, but they were at least an admission that there was joint responsibility for accidental pregnancies, the burden of which should not rest solely on the woman.

Increasing responsibility for women is a difficult truth to acknowledge for the side often campaigning for liberalising abortion. Increased choice for women means taking more responsibility. The increased responsibility of women has, in turn, given men licence to abandon any accidental children they may father and, worse, insist that they needn’t take responsibility for contraception at all. An example of this would be the rise of “stealthing” (removing a condom in the middle of sex without the woman knowing or consenting).

As with every freedom, with sexual freedom comes responsibility for the consequences. This is something that social conservatives on the side of limiting abortion seem to recognise, however blinkered their view might be in some other respects. It is just ironic that the side that sells itself as pro-women has ended up in the position of excusing men from any responsibility for sex and reproduction, however unintended this endpoint was.

The limits of responsibility

Those that argue for fewer limits on abortion access might be blind to the problem that more choice invariably means more responsibility, but those that want to restrict abortion have not come up with another way of solving the problem that abortion—however terrible this solution might be—addresses: that of diminished responsibility. What is society to do with people who are not responsible or won’t take responsibility for their actions?

The most extreme example of lack of agency over the creation of life is the instance of rape, but at the lower end, there is the problem of the exact effectiveness of contraception.

The pill and condoms, we are told, are 99 percent and 70 percent effective, respectively, when used correctly and completely, as per instructions. But people who use contraception “in the wild” and not in perfect as-per-instructions conditions know that “shit happens” no matter how careful one intends to be. Condoms break (particularly when kept in the wallet for a long time), and taking pills is at the mercy of very fallible memory.

Then there are also people who, let's be frank, may have the capacity to consent to sex but should not be parents. Whether diminished capacity is brought on by mental illness, drug addiction, or material circumstances like homelessness, there are many people in society for whom it would be cruel (both to them and the children) to force them to be parents.

I often have disagreements with social conservatives who think that what to do instead of abortion is a second-order issue, but, ultimately, abortion solves a problem—however imperfect a solution it may be.

Without a solution to the problem that people who ought not to have kids end up producing children, there is not going to be an end to abortion.

It is out of character for social conservatives to be idealists, but when it comes to abortion, they expect people to be superhuman, not the fallible creatures that we are.

The key piece of wisdom from those who argue for abortion is that life is messy, and, however ugly terminating a pregnancy may be, it can be the least bad option.

The limits of choice

Both sides fail to recognise that women may be pressured to have an abortion by the lack of available alternatives.

I hold the view that it is a life at conception and, as such, I could not and would not have an abortion. I would personally like to have the choice, should I find myself accidentally pregnant—I have had some scares in my life—to adopt the child out. However, that choice has been completely removed.

In New South Wales, the progressive liberalisation of abortion has been paired with increasingly stringent adoption regulations, making having the child and putting it up for adoption (like in the cult film Juno) an option unavailable to women like me.

Australia, for historical reasons, is extremely squeamish about removing children from their biological parents. But the effect of this is that a woman who doesn’t want to have an abortion is left having to keep the child or go overseas to seek adoptive parents.

Likewise, women with limited social support such as from extended families who can take care of the children are also left without much choice if the father doesn’t want anything to do with the baby.

Having an abortion might be a choice, but circumstances can force a woman who does not want to have an abortion into having one. Many of these circumstances are things that progressives themselves argue for, be they limits on removing children or dismantling the extended family which can support a woman when the father is absent.

On the anti-abortion side, socially conservative attitudes are often paired with economically conservative views about the welfare state. However, the far more restrictive laws around abortion in Europe (that many in the US are fond of pointing to as a “gotcha” to progressives who insist that they are living in a backward country) are often paired with pro-natalist economic policies. Many years of fertility rates being below replacement level have led European governments to throw money at any woman who wants to have children. By helping to remove the material barrier to having children, more women choose to keep the baby when they find themselves accidentally pregnant.

The great untruth that both sides argue is that pregnancy is a choice for the mother as an individual, but legal, social, and economic factors, more often than not, dictate the “choice” that is made.

A warning

Australia can be not just an example but also a warning on complacency.

The lack of a top-down decision on abortion and the subsequent slow progress has meant that, far from being a deeply polarised issue, most Australians (for better or worse) would not be able to tell you what the abortion laws are in their state. This, in my opinion, is too much apathy for what is a serious moral issue but is far better than the intense polarisation that came as a result of Roe v. Wade.

Ultimately, the way forward from the Dobbs decision will probably leave everyone disappointed. The laws in some states will be too restrictive for half the population, and they will be too liberal in some states for the other half. But that is a good thing. Needing to compromise means that both sides of this false dichotomy will need to engage in good faith with the arguments of the opposition.

This is one of the easiest issues where, at least, if one doesn’t have ideological blinkers on, it is clear that both sides of the debate have their merits. The US has an opportunity to think deeply about abortion and not in half-truths and slogans.


This is a companion discussion topic for the original entry at https://quillette.com/2022/07/08/an-australian-perspective-on-abortion/
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This is the most knowledgeable, sensible, and wise article I have ever read on abortion. Kudos to the writer.

I would like to meekly suggest to all that we should always ponder and discuss where the border between morality and the law should be. Morality is about approval/disapproval. The law is about force and compulsion.

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The most extreme example of lack of agency over the creation of life is the instance of rape, but at the lower end, there is the problem of the exact effectiveness of contraception.

A question about the whole idea of “planned parenthood”. I suspect most children who have ever been born in the world were unplanned. Why does a child conceived due to rape or an ineffective contraceptive or to a financially insecure household have less right to live than one wished for by at least one of the mating couple? What are the roots of this idea that the coming into existence of a person should be dependent on the sentiments, practices or situation of one or both of the conceiving couple? Who determined they have the right to decide whether a person is permitted to exist or not?

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Cultural distinctions matter when attempting to make any meaningful comparisons between countries so to use another country’s journey as a template isn’t always useful. Unlike Australia, the Christian right in the US has been able to form a very powerful & formidable effective force that’s politically structured to resist change despite its minority popularity as opposed to Australia whose acceptance of abortion was largely underpinned by the presence of a more secular culture in positions of power that enabled the transition. That’s not to say religiosity can’t be overcome in the US but that in its current power structure that won’t be any time soon.

Insofar as sex & responsibility go, men have hardly been excused of their responsibility given they are still financially responsible for any children they sire with the added burden of possibly being largely ‘excluded’ from their child’s life if there’s no long term relationship.

I also suspect that there’s a much higher premium placed on liberty these days that both women & men risk losing with irresponsible birth control. Studies, careers, travel & financial security are all strong incentives to take appropriate contraceptive measures. Commonplace sex education has also played a strong role in increased awareness of responsibility in terms of contraception for both males & females that has largely contributed to decreasing abortion rates that are now largely (70%) attributed to women in poverty in the US. Poverty not garden variety irresponsibility is the overwhelming common denominator in abortions. Access to cheap & reliable contraception as well as sex ed is crucial for this demographic.

The notion that lowering the standards of adoption in Australia would result in less abortions is a super fanciful reach. If IVF is anything to go by where 90% of couples choose to destroy their unused embryos rather than donate them to needy infertile couples its pretty clear the problem isn’t red tape but an unwillingness to allow strangers to raise one’s offspring. And that’s just embyros. A newborn is hardly going to be an easier give away especially with the financial support & public acceptance single mothers receive today. It’s also been statistically shown the negative psychological outcomes for those that do adopt out their children are significantly more serious than those who choose to abort.

In terms of low adoption rates in Australia, it’s important to note that while it’s true its become more difficult to adopt because of past government abuses, standards are higher in Australia than many other countries because of an increased emphasis of concern for the child’s welfare that’s managed by the government not potentially predatory private businesses like in the US. Just being willing & financial isn’t enough nor should it be. And let’s not forget that IVF & single motherhood acceptance has also contributed to the decreasing rates as well.

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I would not limit it to abortion. This is the most sensible and wise article I have read on any controversial subject on this platform so far. I have nothing to criticize or add, it is far better than anything I could have written on the subject.

Now that’s a very broad and generalized statement requiring context and definition of what constitutes unplanned. In the context of the community that I live in which is primarily made up of married couples, children are considered a blessing, and many unfortunately are unable to conceive. The author clearly states that generalized statements like this are oversimplifications. Context is everything.

Watch this space, this is just transitionary, in time men will challenge this position in the courts and will ultimately win. If it’s her decision to abort, its her decision to keep the child and therefore sole responsibility to raise it. The legal argument will eventually override the residual morality one. Woman are destined to have sole responsibility for raising children if she is the only one who gets to choose.

That is not a logical inference from the authors position.
The author states that the laws in Australia make it virtually impossible for childless couples (which automatically includes same sex ones) to adopt, yet fertile heterosexual couples have no such restrictions. She suggests that this at least would give the mother dealing with an extremely challenging and not trivial decision at least another viable option. The notion that this leads to a claim that this would result in less abortions is the stretch and would again be an over simplification not in keeping with the approach adopted by the author.

Family law has been travelling well & truly in the direction of “the best interests of the child” for years now so your logic is unlikely.

The author says the laws are “stringent” but does not give details & there are no such discriminatory policies regarding childless couples including same sex couples.

Australia doesn’t have a “culture”. Just people who like to barbecue things. You may rightfully claim a sort of “culture” in a few decades but until then… Australia is the tailgate party of nations… Be of good cheer though… New Zealand is the equivalent of “fruit salad” so… you guys have them beat by a country mile…

Perhaps it’s your superficial view of culture that makes it seem so. Culture isn’t just food & funny hats y’know…

https://en.wiktionary.org/wiki/fair_go

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Now that’s a very broad and generalized statement requiring context and definition of what constitutes unplanned

My elder brother was born, uuum, two months premature, as are many first children born seven months after a marriage. Conceived on a weekend leave during WW2. I was born a month after demob, another weekend leave conception. A third was born before the parents had any business or secure home. All loved, welcomed, still supportive of each other three quarters of a century later. None were planned. None were delayed until a PhD was completed, or a year after the kitchen was remodelled giving time to bank overtime payments and afford another child. That’s what I mean by unplanned, and “I suspect most children who have ever been born in the world were unplanned.”

My unplanned intro was for this question - why do those children who fit more neatly into the intentions of parents have a greater right to exist than others? Taking two extremes, why does a person born from a rape have a far less right to exist that another who came on a planned schedule in a well prepared home?

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If you guys had funny hats I’d start taking you seriously… until then… you have managed cooking food over fire… There’s hope for you yet! :wink:

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I suggest my contention that the one who gets to decide, ultimately is accountable for the result of that decision will be the logical conclusion. Only uncertainty is how long it will take for this alignment. I’ll put money on it.
The “best interests of the child” is primarily used in custody battles, and even here the interpretation is not as legally simple as the one that I propose will ultimately dominate.
In the custody context of the best interests of the child the courts already have a significant dilemma when it is not glaringly obvious that one parent is unsuitable. Which dimension is most important in this consideration?
Which parent is most like to make the child happy?
Which is best placed to maintain the child’s culture and religion and sense of community?
Which is best placed to position the child for being economically productive in the future?
Is a warm relationship with the child more important that an environment that teaches self sacrifice and discipline?
Is safety and security more important than intellectual stimulation?
How best should a judge determine a hierarchy of values if not in the context of culture, but whose culture if the child is of mixed race?
And then we have the definition of family which historically in the Western context is a glorification of an hierarchical domain of love. Do we universally accept this anymore?
All of these definitions and interpretations I would contest are on much shakier grounds than the one I propose.
Hence my willingness to put money on it. I suggest that my outcome is far more likely than the one you suggest if we continue down the track that it is exclusively the right of the woman to choose if a child lives or dies. Precident is not where my money is at.

The problem with Western Culture is that it is so pervasive that one does not even recognize its existence anymore. It takes a counter culture to point it out to us. The Smithsonian put out a definition of the essential elements of White Culture in an American context. This fueled a whole lot of controversy as it was claimed that this implied other cultures must have the exact opposite of this, which is absurd. By this definition the only cultural aspect that Australian’s can claim exclusively is a funny hat with corks dangling from it.

Recognize many of these as an integral part of Australian culture? They are not necessarily universal pillars of all other cultures.

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I’m a big fan of this author’s approach to the kind of difficult question that abortion presents. Would that such respectful attempts to understand various points of view, and the realities that often intrude upon abstract moral absolutes, become more common!

One quibble: She says that abortion is available more or less on demand throughout Australia, with cutoff points ranging from 14 to 24 weeks. So presumably, the barrier to claiming that a child would be an intolerable burden is quite low. But at times, she also implies that the laws make abortion available only in “terrible” circumstances, when it’s the least bad option.

I would be interested in knowing if, in the various states, abortion is de facto available to anyone who knows to say the magic words, or if the restrictions are more substantial.

And I’d be interested in hearing opinions on what, if anything, could be realistically instituted as criteria for a legal abortion? Are we stuck with either “only if the woman’s life is endangered,” at one extreme, or de facto on demand, at the other? I think a lot of people tend to think there should have to be a really good reason — grinding poverty and homelessness, say, versus somewhat problematic timing in one’s hoped-for career path — but how could that be made into law?

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I take your points. But rape is tricky, and I think one needs to approach it with a great deal of care and empathy for the woman who doesn’t want to carry that baby, even if one thinks abortion is still wrong in that case.

Thinking about the language you use: Does conception automatically confer a “right to exist”? Perhaps. Does that apply to all embryos created through IVF? Again, perhaps, and maybe IVF should be reconsidered on that basis. But reasonable people can differ about that. And certainly when it’s a forced conception involving an unwilling party, moral lines get blurred.

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Some would say the moment he’s not keeping it in his pants he’s just as responsible for that choice being open & community standards being what they are ie ‘we the tax payer aren’t interested in cleaning up your mess’ dictate both these clowns pay their way so their offspring doesn’t become a burden on the public purse.

I once had a Russian guy (of all people!) inform me that “Australia is a cultural desert”. One can never underestimate the comforts of the Gulag I suppose….

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Perfectly true for 100 000 years of human existence, and then we shifted the decision from the point of conception to the decision to abort and left it exclusively to that of the woman …

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Not at all. He relinquishes that decision in failing to use protection.

You fail to recognize the shift in where the decision point occurs.
In the distant past: You sleep with her - you marry her.
Then you sleep with her and fail to wear protection, you have joint accountability for the child, but you don’t have to marry her.
In the future, you sleep with her and she gets pregnant and decides not to have an abortion and raise the child, you are held responsible and also have to pay for raising the child, but if she does not want to keep the child and you do you have any say?
I don’t think so. Time will tell who is right.
Are you confident that this process will not end up leaving the woman exclusively responsible for “holding the baby?”.
If you are right, then some woman get the right to abort and free themselves of an obligation to raise the unwanted child. No practical harm done (ignoring the ideological context).
If I’m right then more and woman who decide to keep the child will do so on their own as is becoming dominant in certain cultures.
Which is the greater risk and concern for society?
How confidant are you that the unintended consequences of the “woman’s choice” approach won’t end up being a major problem?

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It’s not as if men aren’t aware that their say will be limited should the woman become pregnant so the fact there’s shift of when is irrelevant.

Could you rephrase this as I’m not sure what you mean here.