When history won’t go away: abortion decriminalisation, residual criminalisation and continued exceptionalism

Abstract

Between 2002 and 2023 all Australian jurisdictions decriminalised abortion. This involved removing the regulation of abortion from criminal law and replacing it with standalone Acts or sections situated within health law. New health law regulations range from minimal in the ACT, the first to decriminalise, to complex, especially in NSW and SA where anti-abortion amendments delivered requirements such as counselling and prohibitions on sex-selective abortion. In all jurisdictions, the removal of abortion from criminal law was incomplete as new offences were introduced to penalise ‘unqualified’ people who perform or assist in the performance of an abortion. The South Australian Law Reform Institute referred to this new criminal law as a ‘residual offence’. The residual offence exemplifies how decriminalising Acts continue to exceptionalise abortion.

Keywords:

• Abortion
• ‘backyard abortion’
• decriminalisation
• criminalisation
• exceptionalism
• self-managed abortion

Between 2002 and 2023 all Australian jurisdictions decriminalised abortion. This involved removing the regulation of abortion from criminal law and replacing it with stand-alone acts or sections of acts situated within health law. New health law regulations are limited in the Australian Capital Territory, the first jurisdiction to decriminalise, but more complex in other jurisdictions, especially in New South Wales, where anti-abortion amendments include requirements such as counselling and prohibitions on abortion for ‘the purpose of sex selection’. In all jurisdictions, the pregnant person who obtains an abortion as well as registered health care providers who perform it are specifically exempted from criminal prosecution – with the misconduct of the latter now subject to a network of laws and other regulations that govern all health professionals.¹ The new laws in Victoria, South Australia and Western Australia – and Queensland from 2024 (subsequent to its decriminalisation in 2018) – allow registered health practitioners, not only medical doctors, to perform abortions using medication, depending on relevant health regulations.² The explicit reference to ‘medical abortion’ (caused via medication, as distinct from surgical abortion) and categories of health practitioners who can prescribe medications to cause abortion follows the removal of federal legislation that restricted the import of medical abortion pharmaceutical drugs in 2006, and an increased understanding that medical abortion can be safely prescribed and administered by a range of health workers.³ But in all jurisdictions, the removal of abortion from criminal law was incomplete as new offences were introduced to penalise ‘unqualified’ people who perform or assist in the performance of abortion. The South Australian Law Reform Institute (SALRI) referred to these new criminal provisions as creating a ‘residual offence’.⁴ The residual offences exemplify how the decriminalising Acts continue to exceptionalise abortion as a medical procedure.

Exceptionalism is the hallmark of abortion jurisprudence – as Caroline Corbin explains, ‘the normal doctrine does not apply … the rules are different when the claim involves abortion’.⁵ There is no need for abortion-specific law because abortion is covered under the more general ‘health framework’, which Dwyer et al describe as ‘general health law, and its supporting body of regulations, policies, codes of conduct, professional ethics and clinical protocols’.⁶ The health framework is designed to deliver patient safety and clinical best practice. Abortion exceptionalism is often premised on a ‘distortion of scientific fact’.⁷ In this article, we argue that the residual offences were enacted in each jurisdiction without evidence of the problem it ostensibly aimed to prevent – i.e. the ‘harm associated with unqualified abortion’.⁸ Instead, the residual offences reflect a series of historically embedded assumptions about abortion – about the people who have them, the people who should oversee and perform them, and about medical risk and danger – that have remained stubbornly attached to abortion despite significant changes to its practice and legal regulation over the past 50 years.

This article focuses on three jurisdictions: Victoria, Queensland, and South Australia, which decriminalised abortion in 2008, 2018 and 2021, respectively. We chose these jurisdictions because they were each preceded by reports from institutional law reform agencies, providing access to the legal reasoning that underpinned the enactment of a residual offence. In each state, private members’ bills initiated parliamentary proceedings to repeal all laws regarding abortion. These were followed by requests from each Attorney General to their respective state law reform bodies to conduct inquiries into abortion law reform. Each body received submissions and consulted with designated experts. The report from the Victorian Law Reform Commission (VLRC) presented the government with three models for reform in 2008, all of which included a residual offence. The Queensland Law Reform Commission (QLRC), which reported in 2018, worked through a draft piece of legislation that included a residual offence; and the South Australia Law Reform Institute’s (SALRI) report of 2019 made recommendations, including support for inclusion of a residual offence. Residual offences were included within each subsequent bill that was presented to parliament. ‘Unqualified people’ who perform abortions now face maximum penalties ranging from seven to ten years imprisonment. QLD and SA also have separate offences for unqualified people who assist in performing an abortion, with penalties of five (SA) and seven (QLD) years’ imprisonment. In SA, a description of the offence is followed by a requirement that a prosecution for this offence ‘cannot be commenced without the Director of Public Prosecution’s written consent’, indicating, perhaps, some caution about using this law.⁹ In the various jurisdictions studied, references to the criminalisation of unqualified persons performing or assisting in abortions varied in frequency and content within parliamentary debates. However, no parliamentarians contested this aspect of decriminalising legislation.

This article begins with a background section outlining abortion cases that have gone before the courts in Australia during the twenty-first century to argue that no law is required to regulate abortion to guarantee patient safety and clinical best practice. We then turn to analysing law reform reports and parliamentary debates in Victoria, Queensland and South Australia to consider what legal experts and legislators said, and did not say, about the residual offences at the time in which the laws were developed and passed. We identify and explore five key themes: (1) a lack of evidence for the need for the residual offence; (2) recourse to imagery of ‘the backyard abortion’; (3) a perceived need for medical control over abortion; (4) the representation of the people who need abortions as vulnerable and requiring protection; and (5) a failure to engage with the contemporary landscape of abortion provision, where the availability of medical abortion is untethering safe abortion provision from the law and institutionalised medicine. We argue that the residual offences were emblematic of a legal process that curtailed the radical potential posed by decriminalisation to reshape abortion provision as well as the meanings attributed to abortion, the people who have them, and the people who should provide them. Turning to the history of the provision of abortion services and discourses about abortion, we demonstrate that justifications for the residual offence relied on a white patriarchal tradition of disbelief in or dismissal of women’s desire for abortion, and a history of believing in the need for medical control over this aspect of women’s reproductive bodies.

In this article, we use gender-neutral terminology when referring, in a general sense, to people who have, need or desire abortions. We use gendered terminology when referring to specific cases of women who have had abortions or, more significantly, when referring to the gendered discourse that circulates and is produced in abortion debates and commentary. There is a history of thinking about ‘women’ in relation to abortion that continues to bear on abortion thinking. We move between gendered and gender-neutral terms to acknowledge both the diversity of subjects who have abortions, and the centrality of gendered typologies to debates about how abortion should be regulated.

Abortion and the law in the twenty-first century

There have been a handful of convictions in relation to abortion in Australia in the twenty-first century, all before decriminalisation.¹⁰ In 2006, Sydney doctor Suman Sood was convicted under NSW abortion law and sentenced to a two-year good behaviour bond.¹¹ The offence related to medications Sood had prescribed to induce a second trimester abortion and, although ‘the media story of the case does not reflect well on Sood’s care or professionalism’, she was convicted because she failed to inquire into the woman’s reasons for an abortion (which was required under NSW law at the time).¹² Other convictions since the turn of the millennium relate to unqualified people performing or assisting in the performance of abortion, and all but one involve medical abortion. In 2004, a father was charged under SA abortion law with an attempted abortion on his daughter. This case is anomalous to the others because it did not involve medical abortion and it appears that the daughter did not initiate or consent to the attempted abortion. SALRI reports that the abortion offence was one of 11 charges ‘of a course of sustained sexual abuse … [and] the attempted abortion charge related to a violent assault on the victim when she was aged 15′.¹³ In 2007, ‘Dr’ Lin, a Chinese-trained director of a Chinese medical centre in Sydney was convicted of an offence relating to the provision of mifepristone, the key abortion medication, to pregnant women. There is no mention in the judgement of harm to anyone who took the pills. The offence was related to the unlawful provision of a drug. Lin was also charged for ‘holding out’, that is, erroneously using the title ‘Doctor’, an offence under the NSW Medical Practice Act 1992.¹⁴ In 2017, a 28-year-old woman was convicted under NSW abortion law which criminalised the actions of pregnant women who acted with the intention of ending her pregnancy. This woman had five children and was pressured by her boyfriend to end her pregnancy. She obtained pills on the internet for $2000, took them when 28 weeks pregnant and went to hospital where a child was delivered by caesarean section and subsequently died. She was given a three-year good behaviour bond. A legal academic commented on the case to the Sydney Morning Herald that ‘the factual context out of which it arises [was] absolutely tragic in all respects’.¹⁵

The arrest of a young woman and her boyfriend in Cairns in 2009 under Qld abortion law relating to the use of pills to induce abortion is also worth noting because, even though it did not result in a conviction, it was widely publicised and impacted the law and provision of abortion in Queensland until it was resolved.¹⁶ The boyfriend’s sister had brought the pills from Ukraine, where they were easily available. The young woman’s abortion was a simple affair, but the couple were subjected to significant harassment in the 18 months leading up to their trial, where the jury took no time to find them not guilty.¹⁷

All these cases occurred before decriminalising legislation commenced. Under new legal regimes, Dr Lin, the abusive father, and the Cairns boyfriend could all be charged under criminal law for performing or assisting in the performance of an abortion, and Dr Lin could still be charged with offences under the more general health framework relating to the unauthorised provision of pharmaceutical drugs and for holding out that he was a doctor. The abusive father could be charged under assault law, more appropriately given the violent nature of the incident and the daughter’s lack of consent. Dr Sood, the Cairns woman, and the NSW woman could not be charged with any crime, although Sood’s conduct could potentially be subject to disciplinary action under health law.

Evidence and justification for the need for the residual offence

Neither the reports of institutional law reform bodies, nor parliamentary debates, pointed to any substantive evidence that surgical abortions by unqualified persons were being performed in Australia. In fact, the VLRC report made a statement in the negative: ‘The commission has not received any information which suggests that unqualified people, often referred to as “backyard abortionists”, are offering services in Victoria’ and there is little other discussion of the matter.¹⁸ Notably, a section titled ‘A Non-Existent Problem’ contained a much lengthier discussion about the offence of child destruction, which overlapped with the abortion offence in the Crimes Act.¹⁹ The law had never been used in Victoria for its original purpose, which related to ‘acts performed during childbirth, or for late abortion’, only for attacks on women in late stages of pregnancy. The VLRC consequently recommended the repeal of the child destruction law, and it was successfully repealed by the 2008 abortion law reform.²⁰

The QLRC devoted five pages in its report to the residual offence stating at the very beginning without prior argument that, should the abortion law be reformed, ‘it will be necessary to amend the Criminal Code to provide for the criminal responsibility of a person who performs or assists in the performance of a termination when not qualified to do so under those provisions’ (emphasis added).²¹ The QLRC report noted the submission from the former Victorian Health Services Commissioner, an administrative lawyer, who stated that this offence was consistent with ‘women’s human rights, health and safety’.²² The report reasoned that the new offence was to deter ‘the practice of unregulated or “backyard” terminations’.²³

The SALRI report contained a chapter on ‘A Residual Offence’, which constituted the most extensive legal reasoning behind the offence within the three reports and, indeed, broader Australian jurisprudence. It acknowledged the lack of evidence and explanation in the two earlier reports noting that the VLRC ‘had not received any information’ about unqualified people performing abortions and that the QLRC supported a residual offence ‘admittedly without any detailed discussion’.²⁴ SALRI referred to the evidence of medical abortions provided by or with the assistance of unauthorised people in the cases of Dr Lin and the Cairns case. No harm to the pregnant people involved was mentioned. It also devoted a page to the then-recent case in the United Kingdom where a woman (Gurpreet Kaur) was sentenced to 27 months imprisonment for selling mifepristone from an ‘Ayuveridic’ (sic) herbal centre in London. In that case several women who had purchased the drug from the centre subsequently attended hospital with ‘major complications’. The SALRI report quoted the judge in the Kaur case as stating: ‘The dangers that are entailed to the women are too obvious for me to point out’ (emphasis added). ²⁵

In its 14-page discussion, SALRI made six references to ‘anecdotal accounts from a number of parties’ that abortions by unqualified parties were taking place in SA, particularly in rural and regional areas.²⁶ No details were given and the report noted that ‘[s]ome parties doubted that abortions by unqualified parties remain a real problem in South Australia’.²⁷ SALRI recognised opposition to a residual offence and quoted legal academic Mark Rankin who noted in comparison that there was no law specific to the unqualified practice of colonoscopy, for example, and posited negative health impacts of a residual offence on women’s health.²⁸ A submission from former abortion provider Brigid Coombe stated that ‘mifepristone and misoprostol are not dangerous drugs’, although it is preferable that their use is guided by ‘trained providers’. She expressed shock that a law about unauthorised practitioners would criminalise the young man who assisted his girlfriend in the Cairns case.²⁹

Parliamentarians during the Victorian, South Australian, and Queensland second readings either did not mention the residual offence or relied on assertions to communicate its necessity. In Victoria, Minister for Women Maxine Morand provided no rationale for why the offence was deemed necessary, stating only that the legislation aimed to provide ‘clarity for women, health practitioners and the community about the circumstances in which the termination of pregnancy can be performed’.³⁰ In Queensland, Attorney General Yvette D’Ath and Minister for Health Steven Miles both stated the necessity of the residual offence with a reprise of the former Victorian Health Commissioners ‘the health, safety and wellbeing of women’.³¹ Miles stated that ‘new offences will be created directed to stop unregulated or backyard terminations’.³² In summary, institutional law reform bodies recommended, and parliaments unquestionably approved, the enactment of residual offences with no substantial evidence of their need. One report said there was ‘no information’, another reported ‘anecdotal accounts’, and there was regular recourse to ideas of common sense: the risks to women were ‘too obvious’ and the offence was deemed necessary to protect ‘women’s health, rights, and safety’.

The multiple temporalities of ‘backyard abortions’

In place of substantial evidence of a problem, the conviction that a residual offence was necessary was most commonly underwritten by accounts of history, and, more specifically, imagery of ‘backyard abortions’ from the time before abortion law was liberalised in the 1960s and 1970s. Indeed, support for decriminalisation, in general, was often posed with reference to history. This will not surprise nor indeed dismay readers of this journal but causes us to interrogate what kind of history was invoked and how.

Victorian debates were riddled with descriptions of ‘horrific’³³ practices and women who ‘died or were horribly injured through botched procedures’.³⁴ In the Queensland parliament, speakers talked of ‘life-threatening’, ‘failed abortions’,³⁵ ‘unsanitary conditions’³⁶ and ‘women who have died or suffered untold trauma’.³⁷ Pairing these shocking and abject descriptors with abortion reiterated the association of illegal abortion with unsafe abortion and enabled parliamentarians to support decriminalisation while simultaneously maintaining that abortion is ‘regrettable and undesirable’, as more than one expressed.³⁸

The term ‘backyard’ was repeatedly used to describe these imagined historic practices. It is not that there were no unsafe and harmful practices of abortion before liberalisation but that ‘backyard abortion’ is best understood as a discursive figuration, rather than a series of historical events, that has been attached to pro-choice politics since (at least) the public health arguments that prevailed in campaigns to liberalise abortion law in the 1960s. These arguments pit safe, legal abortion in opposition to less safe, illegal abortion, while asserting that legal abortion must circumscribe lawful practice such that only medical professionals can perform abortions, because they alone are equipped to deliver safe and hygienic abortion services.³⁹ Parliamentarians did not define the term ‘backyard abortion’ – its cultural history seemingly made this unnecessary – however, we posit that its resonance (e.g. its association with coat hangers and ‘butchers’) relates to unlawful surgical abortions.⁴⁰ Discursive slippage between ‘unqualified person’ (the term employed in the legislation), ‘unregulated abortion’ and ‘backyard abortion’ was common. For example, Wendy Lovell, Deputy Leader of the Victorian Opposition, stated that ‘the bill introduces a new offence for an abortion performed by an unqualified professional, so backyard abortions will remain a crime in this state’.⁴¹ The QLRC report quoted the former Victorian Health Services Commissioner who supported the new offence because it deterred ‘the practice of unregulated or “backyard” terminations’.⁴² South Australian Minister for Human Services Michelle Lensink used associated terms when she stated: ‘The government agrees with SALRI that there is a clear public interest in protecting the public from dangerous and unsafe medical practices carried out by persons who are not authorised or qualified to carry out terminations of pregnancy.’⁴³

In most cases, references to backyard abortions located the practice in the pre-liberalisation era. One member dwelt on the details she had read:

Women, mostly from low-income backgrounds, suffered at the hands of unqualified, quack operators or backyard abortionists. Abortions were performed in the back shed or on the kitchen table without anaesthetic. To stop women screaming in pain at the time of the surgery, rags were stuck into their mouths. Utensils were sterilised by using boiled water from the kitchen. Abortion was the second most common cause of death of women in Victoria before the 1970s. The high rates of death and serious injury associated with unsafe and illegal abortions prove that those who oppose decriminalisation are blind and indifferent to the realities of women’s lives.⁴⁴

Noting the absence of information about unqualified practitioners in the present, the VLRC stated: ‘There is little doubt, however, that backyard abortionists have operated in Victoria in the past.’⁴⁵ This claim was hardly in doubt. One Victorian parliamentarian spoke about ‘40 years ago’, roughly the time before the liberalisation of abortion in the state.⁴⁶

In a small number of cases ‘backyarders’ were located in the present. In the Queensland parliament, Kim Richards, ALP Member for Redlands, told the story of her mother’s abortion, slipping from the past to the present:

In those days – as is still the case in many parts of Queensland – it was a backyard termination. It was just that. Without going into the details and the damage done, let me tell honourable members that my mum was very lucky to have escaped with her life (emphasis added).⁴⁷

Another Queensland parliamentary supporter of the bill contrasted unsafe, illegal abortions with safe and legal abortion to argue that ‘[a]ll voting against this bill will do is continue to drive women into the shadows of seeking illegal and potentially dangerous abortions’ (emphasis added).⁴⁸

Sometimes backyard abortions were positioned as a future threat. A Victorian parliamentarian feared that failing to reform the law would ‘re-establish the backyard abortion industry’ (emphasis added).⁴⁹ The SALRI report quoted the sponsor of the decriminalisation bill in NSW, Alex Greenwich, who spoke in parliament of the ‘potential emergence of backyard clinics’ (emphasis added).⁵⁰ A Victorian parliamentarian similarly invoked this ‘back to the future’ notion when she claimed that ‘those who oppose legally terminating pregnancy are ignorantly trying to wind back the clock and reproduce the situation that existed 40 years ago’ (emphasis added).⁵¹ SALRI conjured the notion of an ever-present threat. The public health rationale for the abortion law reform of 1969 ‘remains an enduring consideration’ (emphasis added) and the ‘risk of unsafe procedures … should not be easily discounted’, they wrote, in light of a ‘graphic history of unsafe and unregulated procedures’.⁵² They conceded that accounts of non-medical abortions in SA they heard are ‘anecdotal’ but that ‘[e]ven if no illegal abortions are currently occurring in SA, this does not mean that none will ever occur’.⁵³

There were members, from both sides of the debate, who explicitly confined backyard abortion practices to the past, countering the claim that a return to backyard abortions would follow if the reform bill was lost. Damian Drum, Deputy Leader of the Nationals and perhaps the most vociferous anti-abortion MP in the Victorian parliament, stated: ‘People would have us believe that if we knock this bill over in this chamber, dirty alleys and backyards will start to serve as abortion clinics again. That is not the case.’⁵⁴ A key supporter of the reform in SA, ALP member and former nurse Nat Cook said, ‘We had that debate 50 years ago and we stopped dozens of women dying from haemorrhage, from infection and from backyard butchery. We stopped that from happening’ (emphasis added).⁵⁵ Drum was dismissing the public health arguments forwarded by the bill’s supporters. However, both he and Cook were making statements closer to the truth than those who feared the return of the backyarder, given the provision of safe and legal abortions in their states since 1970.

The fluid temporality of ‘the backyard abortion’ stood in for and arguably sidelined a more empirically accurate history in each state, where, as we argue below, the most profound ‘risk’ to people seeking abortion has been the inadequate and inequitable system of safe, legal and liberal abortion provision that has prevailed since the 1970s in Victoria and SA and since the 1980s in Queensland.⁵⁶ (Passing the decriminalising legislation has thus far made little difference to poor access in these states, but that’s another story).⁵⁷ MPs who argued that ‘backyard’ abortions were a feature of the present or likely to return in the future were out of touch with the current provision of abortion care in their states. The repetition of women’s suffering and desperation also sidelined the experiences of ordinary, safe, legal, and happy abortions experienced by many in the post-liberalisation period.⁵⁸

But it is not only that the residual offence rests on an incorrect account of history. Contemporary campaigns that use the backyarder have continuity with and owe a debt to historic campaigns by doctors to displace midwives in reproductive health care.⁵⁹ In an article about the use of the image of ‘backyard’ abortions in pro-choice abortion campaigning, written in the wake of an intense period of political contest over abortion in SA in the late 1980s and early 1990s, Barbara Baird argued that it ‘forecloses a more complex history’ of both pre- and post- liberalisation provision and experience, where not all unqualified persons were incompetent, and not all doctors were capable or caring.⁶⁰ Even some doctors admitted the competency of some ‘backyarders’.⁶¹ ‘The materiality of the discourse which constructs the backyard abortionist’, Baird wrote, is ‘not so much in a past situation when so-called “backyard abortionists” practised their trade’ – and certainly not in a present where their imagined return threatens health and safety. The materiality of the backyard abortion is ‘its place in the development of the provision of abortion services since law reform and in fact its place in contemporary power relations that converge around this issue “abortion”’.⁶² The ‘backyard abortion’, invigorated with a fluid temporality across the three jurisdictions considered here, does important work in bolstering the fearful and punitive imaginary that underpins the old hierarchies that were renewed in decriminalising legislation.

Medical monopoly

The residual offences sit alongside other measures in Australian abortion jurisprudence through which the medical establishment seeks to retain medical control and epistemological authority over abortion. Only medical doctors have been able to legally perform surgical abortion and prescribe medical abortion drugs, although as noted above there is now no legal impediment to other qualified and registered health practitioners prescribing in SA, QLD, and WA (and potentially in Vic, although the meaning of ‘administer’ – used for nurses – in contrast to ‘perform’ – used for doctors – leaves ambiguity). The Therapeutic Goods Administration relaxed its restrictions in this respect in 2023.⁶³ Doctors retain control over abortion decisions after gestational limits in all jurisdictions bar the ACT (ranging from 22 to 24 weeks of pregnancy in the three jurisdictions discussed here), and in all cases in the NT, and statutory provisions reinforce the capacity of health professionals to conscientiously object to performing an abortion. As Baird summarises: ‘Law and regulation single out doctors as the only ones who can lawfully [provide abortion] … yet it is accepted practice that they do not have to’ (emphasis in original). ⁶⁴

Australian legislators, in general, did not intend decriminalisation to free abortion from exceptionalising regulation. When providing a rationale for the residual offence, Vickie Chapman, Attorney-General Deputy Premier of SA, clearly articulated that decriminalisation aimed to reinforce medical authority over the practice:

we are setting up standalone legislation which says, under these rules, terms and conditions, doctors and health professionals do it. We have an offence in that relating to non-medical people doing it to make sure that we reinforce that the new model is that only trained medical people and health professionals do it. That is the reason that is there.⁶⁵

Many parliamentarians deployed a public health argument for abortion, proposing that ‘making abortion illegal … does not stop abortion but just makes abortion practises unsafe’.⁶⁶ We acknowledge the World Health Organisation’s clear statement that abortion’s legal status ‘dramatically affects’ access to safe abortion.⁶⁷ But we also note United States legal scholar Rachel Rebouché’s observation that while ‘there appears to be faith in liberal laws promising liberal access, and in restrictive laws restricting access’, globally, ‘empirical studies’ repeatedly find that this assumption is ‘unfounded’ and that law and health care are not necessarily simply related.⁶⁸

The decriminalisation of abortion needs to be seen in a larger historical context whereby the regulation of abortion has gradually shifted from the remit of criminal law – and the courts and judiciary – to medical professionals, and health law.⁶⁹ This shift is often credited as beginning with the Bourne Ruling of 1938 in the UK, which provided a legal defence for therapeutic abortion (including in Australia). The liberalisation of abortion law in the 1960s and 1970s in Australia normalised these arrangements and granted medical doctors unprecedented control over a medical service (most starkly represented in the control doctors exercised over all abortion decisions, which were lawfully theirs, and not the pregnant person’s).⁷⁰ Yet medical doctors could also face criminal sanctions under these laws. The decriminalisation of abortion removes the threat of criminal penalty from doctors (and pregnant people, discussed below) and, in some jurisdictions, other health professionals, ensuring that the ‘legal response to an unlawful abortion … depend[s] upon the identity of the person who performed it’.⁷¹ Medical doctors and other qualified and registered health practitioners who fail to perform abortions under the regulations face disciplinary, rather than criminal sanctions. This is the same disciplinary action that healthcare professionals already face for failure to adhere to the various laws and policies that regulate all medical services. The repetition of these regulations in standalone abortion legislation is exceptionalising.

While decriminalisation can be viewed in a longer history of the medicalisation of abortion, this history is underpinned by contingent modes of medical control and power. Laws that enabled doctors to perform abortion on therapeutic grounds were premised on an overt medical paternalism that, in the past 50 years, has been superseded by norms of patient autonomy and shared decision-making that guide medical practice today.⁷² Decriminalisation, which implicitly recognises a pregnant person’s capacity to make abortion decisions (to gestational limits), is reflective of contemporary norms of medical practice. The provisions in some decriminalising Acts that permit health professionals other than doctors to prescribe abortion medications are also a significant shift. A rivalry between midwives and obstetrician gynaecologists in the ongoing project of professionalisation, achieved through competing claims for sovereignty over reproductive bodies and processes, has played out since the eighteenth century in the field of reproductive health generally, and abortion more specifically.⁷³ In the nineteenth and most of the twentieth centuries, the boundary work that established the power medical doctors exercised over abortion contrasted their skill, expertise and knowledge with that of midwives, who were grouped alongside others who lacked formal education, including herbalists and faith healers.⁷⁴ With decriminalisation, the boundary work underpinning medicalisation has shifted, so that the borders of the medical profession have broadened to encompass nurses, midwives and other health workers (in some jurisdictions, and only for some abortions), whose technical control of abortion is now rationalised through their opposition to ‘unqualified persons’. The residual offence secures this boundary work.

The pregnant person and risk

SALRI noted that an unqualified person who claims to be a registered health practitioner can be charged under health law with the offence of ‘holding out’ that they are one, which carries a maximum penalty of $60,000 and/or three-year imprisonment, but that this provision would ‘not apply to individuals who do not hold themselves out to be a medical or other health practitioner’.⁷⁵ There is, as UK legal scholar Sally Sheldon wrote in her submission to SALRI, ‘a clear state interest in protecting the public from dangerous and unsafe practice in any area of medicine’.⁷⁶ Why is it, however, that people seeking abortion are deemed incapable of assessing the risks of seeking health services from laypeople, when people seeking all other medical care (such as colonoscopy) are deemed capable?

The exceptional status of abortion rests upon norms of abortion jurisprudence that associate it with a ‘risk to the health of the woman’,⁷⁷ and position abortion seekers as vulnerable and in need of protection.⁷⁸ The QLRC reasoned that the residual offence was required to ‘protect the health, safety and well-being of women by deterring the practice of “backyard” terminations’.⁷⁹ Echoing this statement, SALRI said the offence would ‘protect vulnerable people who might be at risk of seeking procedures from people who were not qualified’ (emphasis added).⁸⁰ One survey respondent quoted in the report feared that unqualified providers may take ‘advantage of another person in a vulnerable situation’.⁸¹

The docility of pregnant people, or their susceptibility to looking for assistance in the wrong place, in relation to non-qualified providers was why, according to SA Attorney-General Vickie Chapman, they should not face criminal liability themselves: ‘the expectant mother may be in a vulnerable position in this whole exercise, she should not be under any duress, and therefore we have that protection for her’.⁸² The notion here that an ‘expectant mother’s’ assumed vulnerability and desperation diminishes their judgement dovetails into why SALRI proposed that criminal assault law would not cover the harm caused by abortion (in the only explanation provided across the reports and debates). SALRI acknowledged that ‘a surgical or medical abortion (even by an unqualified person) is likely to be undertaken with the consent of the woman involved’.⁸³ For offences of assault ‘an absence of consent is an essential ingredient’.⁸⁴ Surgery (other than abortion), sport and tattooing are established cases where consent abrogates criminality in the case of harm. SALRI saw the need to explicitly make consent immaterial to the provision of or assistance with an abortion by an unqualified person. This infantilising erasure of a pregnant woman’s consent follows an a priori assumption that she cannot know what is good for her and there are some things to which she cannot and should not be able to consent. Given our knowledge that a twenty-first century ‘illegal’ abortion is likely one enabled by taking pills, supplied by a friend or family member, or possibly an ethnically specific community health practitioner, or obtained online, the phrasing of legislation and accompanying legal argument, which targets those who ‘perform’ or ‘assist in the performance’ of abortion, overstates and misinterprets the boyfriend’s role in the Cairns woman’s abortion, or a mother’s role in equipping her daughter with abortifacient pills, or even an anonymous online provider who sends pills in the mail. The notion of performing an abortion conjures an agent who acts upon a passive (if willing and ‘consenting’) object. This passivity and lack of agency – as carried through the assumptions that pregnant people are incapable of assessing medical risk, cannot consent to abortion by unqualified persons, and have abortions ‘performed’ on them – is troubling in the imagining of the people who seek and have abortions.

‘Protecting women’ can be read as leftover paternalism, echoing long-standing discourses about morally vulnerable (white) women.⁸⁵ In the case of abortion, pregnant people can be described as ‘poorly serviced’ and ‘disadvantaged by the system of provision’, not as ‘vulnerable’ as if this describes a quality of their being. A focus on the medical risk to pregnant people caused by unqualified persons – a risk that is not adequately substantiated – obfuscates the very real risks to pregnant people caused by poor access to services, the private provision of abortion that predominates in Australia and means most abortion seekers face significant out-of-pocket expenses, and culturally unsafe care. It is notable here that the ‘anecdotal reports’ SALRI refers to when evidencing the need for a residual offence came predominantly from rural and regional areas where access is poorest.⁸⁶ The women who received mifepristone from Chinese medical practitioner Dr Lin were primarily international students and Chinese nationals; i.e. women potentially exempted from Medicare, Australia’s health insurance system, and/or who are not necessarily well serviced by private providers who, as Barbara Baird notes in her review of practice websites and advertising, ‘appear to pay little attention to cultural diversity and inclusion’.⁸⁷ The young woman was arrested in Cairns when medical abortion was not commonly available in Australia through mainstream health channels. The Cairns Sexual Health Clinic was, however, at that time, one of the few places in Australia where medical abortion was available.⁸⁸ She did not know this and, with no abortion referral or information service available at the time, this is not surprising. Pregnant people who want an abortion are not intrinsically vulnerable. They are made vulnerable by inadequate access to services, as well as by moral and medicalising discourses, and here legal discourses, and the practices that these discourses produce. Having been made so they are then subjected to the authority of these protective and allegedly pro-woman regimes with a consequent repetition of their loss of agency.

Silences: the changing landscape of abortion provision

While the reports of institutional law reform bodies and the parliamentary debates that ensued are notable for what they did say about the residual offence, they are equally notable for their erasure of the contemporary landscape of abortion provision, where the flow of abortion pills within and between borders has proliferated the obtainment of safe abortion outside of legal and medical contexts.⁸⁹

We demonstrated above that law reports and parliamentarians presented no substantive evidence to support the introduction of the residual offence. There is no evidence from medical professionals or public health data that unqualified persons are performing surgical abortions. While there is evidence that people are accessing and taking abortion pills outside of medical settings, there is no evidence that this practice is causing significant harm to abortion seekers, and the woman at the centre of the Cairns case is on record saying ‘it wasn’t really that much of a big deal’.⁹⁰ Public health arguments for legalising abortion, made with reference to safety, had some empirical basis when countries, including Australia, were liberalising abortion law in the 1960s–70s.⁹¹ But the advent of medical abortion, available internationally since the 1990s but only widely in Australia since 2013, is re-shaping the landscape of abortion provision, untethering illegal abortion from less safe abortion, in both criminalised and liberal or decriminalised settings.

‘Illegal abortions’ of the twenty-first century are most likely to be the use of abortion pills outside of the various laws and policies that regulate their importation and distribution. As Sydney Calkin writes, abortion pills, often used in conjunction with feminist activist strategies to make them available, often illegally, mean that ‘abortion access is becoming less connected to physical clinic spaces and, by extension, less tethered to national legal frameworks’.⁹² In Chile, for example, the law was extremely limiting until very recently but the widespread availability of medical abortion meant that abortions were generally experienced without complication, and criminal prosecutions were rare.⁹³ In many contexts, feminists and people who need abortion care celebrate the unregulated use of pills early in pregnancy as the solution to criminalisation.⁹⁴ This is often conceptualised as self-managed abortion (SMA), a practice that combines ‘a multiplicity of behaviours and navigations that surround abortion self-use’ with a ‘collective dimension that enables safe self-use through a constellation of actors and interlocutors’. ⁹⁵

In Australia and other contexts where abortion is available legally and liberally, abortion pills are also decentralising abortion provision, most visibly in the opening up of telehealth services. Telehealth abortion in Australia, however, continues to tie abortion provision to medical professionals and institutions. By doing so, it attracts significant out-of-pocket costs to the pregnant person, and is subject to various regulations aimed to mitigate medical risk (e.g. ultrasound requirements, and requirements that the abortion seeker be within two hours of an emergency facility) that can hinder access.⁹⁶ In some cases, rural women also continue to feel ‘unsupported and socially isolated while undergoing medical abortion’.⁹⁷ Telehealth abortion does not bridge the gap in provision that may see pregnant people seek abortion pills from alternative sources.

The residual offences could be used to penalise collective networks that make abortion pills accessible and ensure pregnant people are supported through their abortion journeys. Such litigation is not unprecedented in the Australian context where, before decriminalisation, three cases in 2007, 2009, and 2015 demonstrate the use, or attempted use, of the law to punish those who used and/or provided people with abortion pills. The Cairns and Sydney cases are not isolated events; the internet and global travel make medical abortion accessible. In SA, for example, healthcare providers report that women have brought abortion pills with them when emigrating to Australia from India, where the drugs are easily available.⁹⁸

In the contemporary landscape of abortion provision, gaps in institutionalised provision may be filled by the self-management of abortion by pills. In this context, what is needed is freely available information about medical abortion, and what to do in the event of complications, not legal prohibition, which, if used, will isolate abortion seekers from their social networks and inevitably disadvantage those already made vulnerable by the institutions that will then seek to punish them. Healthcare workers may collude with the state in penalising pregnant people seeking medical abortion outside of official channels,⁹⁹ although, to quote Sheldon, ‘how can the state control swallowing?’¹⁰⁰ Good access to free abortion care in the first place would go a long way.

Self-managed abortion (SMA) has changed the landscape of abortion provision and provided countless people with safe and supported abortions outside of medical institutions.¹⁰¹ If this practice is a small (rather than significant) part of the Australian landscape this is only because our system of abortion provision is, on the whole, decent. SMA also holds the potential to radically displace the historically embedded notions of medical paternalism, women’s vulnerability, and the catastrophising of abortion that undergird the medicalisation of abortion. Nandagiri and Berro Pizzarossa write that:

SMA, built on the knowledge of people who self-managed their abortions and feminist activists and organisers, centres the needs of abortion seekers. This shifting of power – who is centred, whose knowledge is valued and in which ways, destabilises some of the central notions surrounding abortion and reproduction: how safety is conceptualised, who a provider is, how autonomy and agency are conceptualised.¹⁰²

SMA opens up a radical reimagining of reproductive autonomy, and by realising ‘good’ and safe abortions outside of medical systems, provides a powerful critique of public health arguments for abortion that continue to shape abortion law and discourse about how abortion should be properly regulated. The Australian reports’ and parliamentary debates’ ignorance of and/or disengagement from the contemporary landscape of ‘unregulated’ abortion provision was also a foreclosing of this critique and radical potential.¹⁰³

Conclusion

Abortion decriminalisation presents a moment of change that holds the potential to radically reimagine the power relations invested in the continued state control of abortion through its medicalisation. Moments of law reform are ‘branching moment[s] of relatively high uncertainty’ where ‘options open and then close off’.¹⁰⁴ Abortion law reform holds the potential to significantly unsettle the relationships between abortion seekers and key players, including the state and the medical profession, and, in so doing, re-imagine the subjects of abortion (most notably the abortion seeker) and how they are regulated both within and outside of the law. One option would have been to simply repeal the criminal law, leaving abortion to be regulated like any other health service. In SA and QLD respectively, Greens MLC Tammy Franks and Socialist Alliance MLA Rob Pyne introduced private members bills proposing to do just this (as did Greens MLC Mehreen Faruqi in NSW); and in Victoria, Labor Party MLC Candy Broad introduced a private members bill that was much simpler than the legislation subsequently introduced by the government (it did, however, include a residual offence).¹⁰⁵ In place of these bills, more restrictive and intensely regulating legislation was forwarded that restated old hierarchies, closing off the potential of law reform to open up a different political imaginary of abortion. The residual criminal offence is exemplary of the way in which abortion has retained its exceptional status through decriminalisation.

We have shown in this paper that imagery of the ‘backyard abortion’ worked to associate abortions performed by unqualified persons with medical risk in place of substantive evidence of a problem. The association of abortion with medical risk worked alongside historically embedded tropes of women’s vulnerability on one hand, and the insistence that only medical practitioners (and in some jurisdictions other qualified health professionals) can safely perform abortions on the other, to rationalise a legal regime that shifted the criminalisation of abortion from medical professionals and pregnant people to ‘unqualified persons’ alone. The focus on medical risk also obscured other risks caused by an inadequate system of abortion provision.

In addition to reiterating gendered and exceptionalising tropes that associate abortion with danger, and women with vulnerability, rationales for the residual offence sidelined contemporary abortion practices, which are overwhelmingly safe and uncomplicated affairs. The residual offence represents an attempt to reign in, not only the potential that decriminalisation held to regulate abortion in an unexceptional way, but the radical potential non-medicalised abortion holds to centre the needs of abortion seekers and, in so doing, open up the collective discursive imaginings of abortion, the people who have abortions, and the people that can best accompany them.

Disclosure statement

The author reports there are no competing interests to declare.

Correction Statement

This article has been corrected with minor changes. These changes do not impact the academic content of the article.

Additional information

Funding

This work was supported by the Australian Research Council.

Notes on contributors

Barbara Baird

Barbara Baird is an associate professor in women’s and gender studies at Flinders University in South Australia, an institution built on the unceded land of Kaurna First Nations people. Her research concerns the histories and contemporary politics of sexuality and reproduction in Australia in the twentieth and twenty-first centuries, with a focus on abortion, queer issues and ‘the child’. She is co-convenor of the SA Abortion Action Coalition. She published Abortion Care is Health Care with Melbourne University Press in 2023.

Erica Millar

Erica Millar is a DECRA senior research fellow at La Trobe University, Melbourne, an institution built on unceded Wurundjeri land. She is an interdisciplinary scholar with training in history and gender studies and has taught across gender studies, history, sociology, criminology, and socio-legal degrees. Her primary topic of research is abortion, and she has published on the cultural politics and history of abortion, and abortion law and provision. She published Happy Abortions: Our Bodies in the Era of Choice with Zed Books in 2017.

Notes

1 See Health Act 1993, Part 6 (ACT); Abortion Law Reform Act 2008 (Vic); Reproductive Heath (Access to Terminations) Act 2013 (Tas); Termination of Pregnancy Law Reform Act 2017 (NT); Termination of Pregnancy Act 2018 (Qld); Abortion Law Reform Act 2019 (NSW); Termination of Pregnancy Act 2021 (SA); Abortion Legislation Reform Act 2023 (WA).

2 For Queensland, see Health and Other Legislation Amendment Bill (No.2) 2023 (Qld).

3 Barbara Baird, ‘Medical Abortion in Australia: A Short History’, Reproductive Health Matters 23, no. 46 (2015): 169–76; World Health Organization (WHO), Abortion Care Guideline (Geneva, WHO: 2022), 69–70.

4 John Williams, David Plater, Anita Brunacci, Sarah Kapadia, and Melissa Oxlad, Abortion: A Review of South Australian Law and Practice (Adelaide: South Australian Abortion Law Reform Institute, 2019), 118.

5 Caroline Mala Corbin, ‘Abortion Distortions’, Washington & Lee Law Review 71 (2014): 1175.

6 Judith Dwyer Mark Rankin, Margie Ripper, and Monica Cations, ‘Is There Still a Need for Abortion-Specific Laws? The Capacity of the Health Framework to Regulate Abortion Care’, Alternative Law Journal 46, no. 2 (2021): 143.

7 Corbin, ‘Abortion Distortions’, 1175.

8 Victorian Law Reform Commission (VLRC), Law of Abortion, Final Report, 2008, 130, https://www.lawreform.vic.gov.au/wp-content/uploads/2021/07/VLRC_Abortion_Report.pdf.

9 Abortion Law Reform Act 2008 (Vic); Termination of Pregnancy Act 2018 (QLD); Termination of Pregnancy Act 2021 (SA).

10 Williams et al., Abortion: A Review, 81.

11 Geesche Jacobsen, ‘Doctor Guilty of Illegal Abortion’, Sydney Morning Herald, 24 August 2006, https://www.smh.com.au/national/doctor-guilty-of-illegal-abortion-20060824-gdo8l6.html#.

12 Barbara Baird, Abortion Care is Health Care (Melbourne: University of Melbourne Press, 2023), 98.

13 Williams et al., Abortion: A Review, 118.

14 Ibid., 148; Dix v Lin [2007] NSWSC 846.

15 Michaela Whitbourn, ‘Sydney Woman Prosecuted for Taking Abortion Drug’, Sydney Morning Herald, 14 August 2017, https://www.smh.com.au/national/nsw/sydney-woman-prosecuted-for-taking-abortion-drug-20170814-gxvoqd.html.

16 Baird, Abortion Care is Health Care, 179–80; Lisa Martin, ‘Abortion Rallies Support Cairns Couple’, Sydney Morning Herald, 9 October 2010, https://www.smh.com.au/national/abortion-rallies-support-cairns-couple-20101009-16cu5.html.

17 Baird, Abortion Care is Health Care, 12–13.

18 VLRC, Law of Abortion, 130–31.

19 Ibid., 98.

20 Ibid., 8.

21 Queensland Law Reform Commission (QLRC), Review of Termination of Pregnancy Laws, Report no. 76, June 2018, 110.

22 Ibid.

23 Ibid., 111.

24 Williams et al, Abortion: A Review, 145.

25 Ibid., 146–47.

26 Ibid, 148, 152, 155, 157, 158.

27 Ibid., 148.

28 Ibid., 155.

29 Ibid.

30 Maxine Morand, Member for Mount Waverley, Ministers for Women’s Affairs, Parliamentary Debates, Victoria Legislative Assembly, 19 August 2008, 2951.

31 Yvette D’Ath, ALP Member for Redcliffe, Attorney-General, Parliamentary Debates, Queensland Parliament, 22 August 2018, 1962–63.

32 Stephen Miles, ALP Member for Murrumba, Minister for Health, Parliamentary Debates, Queensland Parliament, 16 October 2018, 2791.

33 Jenny Mikakos, ALP Member for Northern Metropolitan Region, Parliamentary Debates, Victoria Legislative Council, 7 October 2008, 3937.

34 Gordon Rich-Phillips, Liberal Member for South Eastern Metropole, Parliamentary Debates, Victoria Legislative Council, 9 October 2008, 4149.

35 Aaron Harper, ALP Member for Thuringowa and chair of Health, Communities, Disability Services and Domestic and Family Violence Prevention Committee, Parliamentary Debates, Queensland Parliament, 16 October 2018, 2979.

36 Tim Nicholls, ALP Member for Clayfield, Parliamentary Debates, Queensland Parliament, 17 October 2018, 2926.

37 Dianne Farmer, ALP Member for Bulimba, Minister for Child Safety, Youth and Women and Minister for the Prevention of Domestic and Family Violence, Parliamentary Debates, Queensland Parliament, 16 October 2018, 2839.

38 Gordon Rich-Phillips, Liberal Member for South Eastern Metropole, Parliamentary Debates, Victoria Legislative Council, 9 October 2008, 4149–150.

39 Barbara Baird, ‘“The Incompetent, Barbarous Old Lady Round the Corner”: The Image of the Backyard Abortionist in Pro-abortion Politics’, Hecate 22, no. 1 (1996): 7–26; Mariana Prandini Assis and Joanna N. Erdman, ‘Abortion Rights Beyond the Medico-Legal Paradigm’, Global Public Health 17, no. 10 (October 3, 2022): 2235–50.

40 Baird, ‘The Incompetent, Barbarous Old Lady’.

41 Wendy Lovell, Liberal Member, Parliamentary Debates, Victoria Legislative Council, 7 October 2008, 3909.

42 QLRC, Review of Termination of Pregnancy Laws, 111.

43 Michelle Lensink, Minister for Human Services, Parliamentary Debates, South Australia Legislative Council, 14 October 2020, 1932.

44 Jude Perera, ALP Member for Cranbourne, Parliamentary Debates, Victoria Legislative Assembly, 9 September 2008, 3371.

45 VLRC, Law of Abortion, 130.

46 Perera, Parliamentary Debates, 3371.

47 Kim Richards, ALP Member for Redlands, Parliamentary Debates, Queensland Parliament, 16 October 2018, 2822.

48 Jennifer Howard, ALP Member for Ipswich, Parliamentary Debates, Queensland Parliament, 16 October 2018, 2850.

49 Jenny Mikakos, ALP Member of the Legislative Council for Northern Metropolitan, Parliamentary Debates, Victoria Legislative Council, 7 October 2008, 3937.

50 Williams et al., Abortion: A Review, 146.

51 Perera, Parliamentary Debates, 3371.

52 Williams et al., Abortion: A Review, 158.

53 Ibid.

54 Damian Drum, Nationals Member, Deputy Leader of the Nationals, Parliamentary Debates, Victoria Legislative Council, 7 October 2008, 3943.

55 Nat Cook, ALP Member for Hurtle Vale, Parliamentary Debates, South Australia Legislative Assembly, 16 February 2021, 3994.

56 Baird, Abortion Care is Health Care, 25–84.

57 Ibid., 192–97.

58 Erica Millar, Happy Abortions: Our Bodies in the Era of Choice (London: Zed Books, 2017).

59 Baird, ‘The Incompetent, Barbarous Old Lady’.

60 Ibid., 14.

61 Ibid., 16.

62 Ibid., 22.

63 Baird, Abortion Care in Health Care, 162, 177, 183; Therapeutic Goods Administration, Amendments to Restrictions for Prescribing of MS-2 Step (Mifepristone and Misoprostol)’, 11 July 2023, https://www.tga.gov.au/news/media-releases/amendments-restrictions-prescribing-ms-2-step-mifepristone-and-misoprostol; Human Rights Law Centre, Explainer: Abortion Legislation Reform bill 2023, nd, https://www.hrlc.org.au/reports-news-commentary/2023/8/8/explainer-abortion-legislation-reform-bill-2023; Eden Gillespie, ‘Queensland Introduces Australian-first [sic] Law to Allow Midwives and Nurses to Prescribe Abortion Pills’, The Guardian, 30 November 2023, https://www.theguardian.com/australia-news/2023/nov/30/queensland-law-abortion-pills-midwives-nurses-prescribed-details.

64 Baird, Abortion Care Is Health Care, 85. For statutory provisions for conscientious objection in relation to abortion and medical epistemological privilege, see Sheelagh McGuinness and Michael Thomson, ‘Conscience, Abortion and Jurisdiction’, Oxford Journal of Legal Studies 40, no. 4 (December 21, 2020): 819–45.

65 Vickie Chapman, Liberal Member for Bragg, Attorney-General, Parliamentary Debates, South Australia Legislative Assembly, 18 February 2021, 4601.

66 Chris Picton, ALP Member for Kaurna, Parliamentary Debates, South Australia Legislative Assembly, 16 February 2021, 4021.

67 WHO, Abortion Care Guideline, xx.

68 Rachel Rebouché, ‘A Functionalist Approach to Comparative Abortion Law’, in Abortion Law in Transnational Perspective: Cases and Controversies, ed. Rebecca J. Cook, Joanna N. Erdman, and Bernard M. Dickens (Philadelphia: University of Pennsylvania Press, 2014), 101.

69 Sally Sheldon. Beyond Control: Medical Power and Abortion Law (London, Chicago: Pluto Press, 1997); Fran Amery, Beyond Pro-Life and pro-Choice: The Changing Politics of Abortion in Britain (Bristol: Bristol University Press, 2020).

70 Sheldon, Beyond Control.

71 VLRC, Law of Abortion, 88.

72 Ellie Lee, Sally Sheldon, and Jan Macvarish, ‘The 1967 Abortion Act Fifty Years On: Abortion, Medical Authority and the Law Revisited’, Social Science & Medicine 212 (2018): 26–32.

73 Kerreen Reiger, ‘Domination or Mutual Recognition? Professional Subjectivity Midwifery and Obstetrics’, Social Theory & Health 6, no. 2 (2008): 132–47.

74 Michael Thomson, ‘Abortion Law and Professional Boundaries’, Social & Legal Studies 22, no. 2 (2013): 191–21.

75 Williams et al., Abortion: A Review, 151.

76 Ibid., 158.

77 Ibid., 111.

78 Amery, Beyond Pro-Life and Pro-Choice, 11.

79 QLRC, Review of Termination of Pregnancy Laws, 130.

80 Williams et al., Abortion: A Review, 145.

81 Ibid., 156.

82 Chapman, Parliamentary Debates, 4601.

83 Williams et al., Abortion: A Review, 150.

84 Ibid., 149.

85 Baird, Abortion Care is Health Care, 3–4.

86 Williams et al., Abortion: A Review, 148, 152.

87 Baird, Abortion Care is Health Care, 51.

88 Ibid., 13.

89 Sydney Calkin, Abortion Pills Go Global: Reproductive Freedom across Borders, vol. 7 (Berkeley, University of California Press, 2023).

90 Baird, Abortion Care is Health Care, 13.

91 Ibid., 26.

92 Calkin, Abortion Pills Go Global, 23.

93 Michelle Oberman, ‘Abortion Bans, Doctors, and the Criminalization of Patients’, Hastings Center Report 48, no. 2 (March 2018): 5–6.

94 Calkin, Abortion Pills Go Global.

95 Lucía Berro Pizzarossa and Rishita Nandagiri, ‘Self-Managed Abortion: A Constellation of Actors, a Cacophony of Laws?’, Sexual and Reproductive Health Matters 29, no. 1 (2021): 23–30, 24.

96 For evidence that ultrasound is not necessary for safe medical abortion see Mia Schmidt‐Hansen, Sharon Cameron, Jonathan Lord, and Elise Hasler, ‘Initiation of Abortion Before there is Definitive Ultrasound Evidence of Intrauterine Pregnancy: A Systematic Review with Meta‐analyses’, Acta Obstetricia et Gynecologica Scandinavica 99, no. 4 (2020): 451–58.

97 Baird, Abortion Care is Health Care, 161.

98 Ibid., 163–64.

99 Ibid., 163.

100 Sally Sheldon, ‘How Can a State Control Swallowing? The Home Use of Abortion Pills in Ireland’, Reproductive Health Matters 24, no. 48 (2016): 90–101.

101 For the safety and efficacy of SMA, see WHO, Abortion Care Guideline, 98–100.

102 Rishita Nandagiri and Lucia Berro Pizzarossa, ‘Transgressing Biomedical and Legal Boundaries: The “Enticing and Hazardous” Challenges and Promises of a Self-Managed Abortion Multiverse’, Women’s Studies International Forum 100 (2023): 4.

103 In Abortion Care is Health Care Baird notes caution in relation to self-managed abortion in countries with liberal provision of abortion, noting that ‘the self-managing responsible self is too close to the neoliberal imagining of the subject – the independent individual who is responsible for themselves – for my comfort’, 240–41.

104 Ira Katznelson, ‘Reflections on History, Method, and Political Science’, Political Methodologist 8 (Fall, 1997): 12.

105 Abortion Law Reform (Women’s Right to Choose) Amendment Bill 2016 (QLD); Crimes (Decriminalisation of Abortion) Bill 2007 (Vic); Statutes Amendment (Abortion Law Reform) Bill 2018 (SA).