Health law 4 Flashcards
Discuss relevance of ‘facticity’ to abortion attitudes
Science and Technology Studies (STS) is a relatively new academic field.
Its roots lie in the interwar period and continue into the start of the Cold War, when historians and sociologists of science, and scientists themselves, became interested in the relationship between scientific knowledge, technological systems, and society. The best-known product of this interest was Thomas Kuhn’s classic 1962 study, The Structure of Scientific Revolutions. This influential work helped crystallize a new approach to historical and social studies of science, in which scientific facts were seen as products of scientists’ socially conditioned investigations rather than as objective representations of nature. Among the many ramifications of Kuhn’s work was a systematic effort by social scientists to probe how scientific discovery and its technological applications link up with other social developments, in law, politics, public policy, ethics, and culture.
Harvard Kennedy School Program on Science, Technology & Society
Bruno Latour argues that facts gain their ‘facticity’ when they become useful for existing arguments and brought into existing networks.
See, B. Latour, Science in Action: How to Follow Scientists and Engineers Through Society (Cambridge MT: Harvard University Press, 1987).
Although multiple and competing fetuses have always coexisted, particular historical circumstances have generated and valorized different stories about the fetus.
S. Dubow, Ourselves Unborn: A History of the Fetus in Modern America (Oxford: Oxford University Press, 2011), 19.
Discuss the concept of quickening
The quickening doctrine itself appears to have entered the British common law tradition by way of the tangled disputes of medieval theologians over whether or not an impregnated ovum possessed a soul. The upshot was that … women in 1800 were legally free to attempt to terminate a condition that might turn out to have been a pregnancy until the existence of that pregnancy was incontrovertibly confirmed by the perception of fetal movement. Women had jurisprudence over their bodies
J. Mohr, Abortion in America: The Origins and Evolution of National Policy, 1800-1900 (New York: Oxford University Press, 1978), 4.
Discuss professionalism and embryology on abortion attitudes
The Rise of Medicine as a Profession
During the nineteenth-century in the UK, US, Canada, and Australia, an emerging medical profession mobilised foetal identity as part of their professionalization projects. Challenging church authority, and staking moral and epistemic claims, elite practitioners campaigned against abortion and the legal recognition of quickening, arguing that the foetus had moral status from conception.
M. Thomson, ‘Foetal subject: Law, gender, and embodiment’ in Cambridge Companion to Gender and Law (2023).
The Emergence of Embryology
By producing visible evidence of the embryo’s contours and dimensions, the embryologists set the stage for major epistemological and ideological shifts. They claimed human gestational development as a biomedical enterprise, the embryo itself as a neutral biological product, embryo collecting as a valuable, legal and ethically justifiable enterprise, and themselves as experts in a new professional speciality.
L. Morgan, ‘Embryo Tales’, in S. Franklin and M. Lock (eds.), Rethinking Life and Death: Toward an Anthropology of the Biosciences (Santa Fe: School of American Research Press, 2003), 263. (See, Morgan’s Icons of Life: A Cultural History of Human Embryos (2009).)
Discuss the effect of changing gender roles
On the one hand, it is the newly discovered naturalness of domesticity, motherhood, domestic work, familial sociability, the need for protection, and marital dependency that places women in the “private realm” in law, education, and ethics. On the other, science uncovers and professionals mediate her womb as a public space. Her flesh becomes the public stage whose proceedings are of immediate interest to the state and the body politic, to public hygiene and the church and also to the husband.
B. Duden, ‘Quick with child: An experience that has lost its status’ (1992) 14 Technology in Society 335-344, 335-336.
Discuss the role of law
Men interested in establishing their professional authority… encouraged other men to assert their political authority over women’s role in reproduction by criminalizing the means of controlling birth, each acting to preserve life in the social order as they knew it.
R. Siegel, ‘Reasoning from the body: A historical perspective on abortion regulation and questions of equal protection’ (1992) 44 Stanford Law Review 261-381, at 318.
As Angus McLaren observes, while our collective memory attributes changes in abortion law to religious sentiment, scientific insights, and developing regard for children, ‘significant, also, were the pragmatic concerns and professional interests of lawyers and doctors seeking to implement laws that would best serve their needs.’
A. McLaren, Reproductive Rituals: The Perception of Fertility in Britain from the Sixteenth Century to the Nineteenth Century (London: Methuen, 1984), 144.
Discuss laws against abortion
Offences Against the Person Act (1861)
s. 58 Administering drugs or using instruments to procure abortion.
Every woman, being with child, who, with intent to procure her own miscarriage, shall unlawfully administer to herself any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, and whosoever, with intent to procure the miscarriage of any woman, whether she be or be not with child, shall unlawfully administer to her or cause to be taken by her any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, shall be guilty of felony, and being convicted thereof shall be liable … to be kept in penal servitude for life.
s. 59 Procuring drugs, etc. to cause abortion.
Whosoever shall unlawfully supply or procure any poison or other noxious thing, or any instrument or thing whatsoever, knowing that the same is intended to be unlawfully used or employed with intent to procure the miscarriage of any woman, whether she be or be not with child, shall be guilty of a misdemeanor, and being convicted thereof shall be liable… to be kept in penal servitude …
^[criminalises or jeopardises the position of midwives who held a lot of power at the time]
Discuss cases in liberalisation of abortion law
R v Bourne [1938] 1 KB 687: Abortion is not unlawful to save the ‘mother’s’ life, including where there is a reasonable belief that continuing with the pregnancy would make the woman a ‘physical or mental wreck’ (694).
R v Davidson (1969) VR 667. Victorian. Menhennitt J:
… the accused must have honestly believed on reasonable grounds that the act done by him was (a) necessary to preserve the woman from the serious danger to her life or physical or mental health (not being merely the normal dangers of pregnancy and childbirth) which the continuation of pregnancy would entail; and (b) in the circumstances not out of proportion to the danger to be averted. (672).
R v Wald (1971) 3 DCR (NSW) 25. Levine J. adopted ruling but added consideration of economic and social grounds.
dISCUSS abortion legalisation
Medical termination of pregnancy.
(1) Subject to the provisions of this section, a person shall not be guilty of an offence under the law relating to abortion when a pregnancy is terminated by a registered medical practitioner if two registered medical practitioners are of the opinion, formed in good faith—
(a) that the pregnancy has not exceeded its twenty-fourth week and that the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman or any existing children of her family; or
(b) that the termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman; or
(c) that the continuance of the pregnancy would involve risk to the life of the pregnant woman, greater than if the pregnancy were terminated; or
(d) that there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped.
(2) In determining whether the continuance of a pregnancy would involve such risk of injury to health as is mentioned in paragraph (a) of subsection (1) of this section, account may be taken of the pregnant woman’s actual or reasonably foreseeable environment.
Australia
- South Australia: Criminal Law Consolidation Act 1969
- Victoria: Crimes Act 1970
- Western Australia: Criminal Code Amendment Act 1971
- New South Wales: Crimes Act 1973
- Queensland: Health Act 1974
Discuss persisting issues
The criminal law underpinning of abortion law has long been problematic. A fundamental part of ‘abortion exceptionalism’. Continued criminal status adds to the idea of abortion as morally ambiguous. Decriminalisation is without doubt important. Yet, a number of significant issues are left unaddressed:
- Abortion exceptionalism 1: Counselling. States differ. Ranges from: ACT optional to NSW mandated after 22 weeks;
- Abortion exceptionalism 2: Conscientious objection. States again differ. Ranges ACT must tell patient of CO; to NSW, NT, Vic, WA must inform and refer to other clinical provider;
- Access: Providers, prescribers, ‘abortion deserts’, and other problems.
Discuss UN opinion on srh
- Target 3.7 of the United Nations’ Sustainable Development Goals commits governments to “ensure universal access to sexual and reproductive health care services, including for family planning, information and education, and the integration of reproductive health into national strategies and programs” by 2030;
- National Women’s Health Strategy 2020–30 outlines maternal, sexual and reproductive health as the first priority;
- Recent Senate inquiry into universal access to reproductive healthcare identifies numerous gaps and has recommended 36 reforms to the healthcare system to ensure that Australian women and gender-diverse people can access the services they need.
Discuss issues of access
- Only doctors can perform surgical abortions and prescribe abortifacient drugs in most jurisdictions, excluding allied health professionals such as nurse practitioners in most of Australia’s jurisdictions.
- Major cities tend to have more providers and clinics offering abortion services, while rural and remote areas may have limited access, often requiring women to travel long distances to access care. Costs can be prohibitive. ‘Abortion deserts’.
- Medical abortion has the potential to radically change access to abortion care, especially with availability of telemedicine. However, only approximately 10% of GPs have undergone the training to prescribe. Training requirement has been removed but numbers remain low;
- While abortions can be provided in public hospitals, private clinics, and family planning centres, the majority are performed in private clinics. The public sector has limited its engagement in this essential service.
A Note on Access 3: Public vs Private Provision (NSW example)
- 76.9 per cent of women undergoing a termination resided in a metropolitan local health district;
- 18.7 per cent resided in a rural or regional local health district;
- 75.5 per cent of terminations provided in non-hospital facilities include private healthcare provider clinics and non-for-profit clinics;
- Private hospitals performed 21.7 per cent of terminations;
- Public hospitals made up 0.7 per cent of the total number of terminations of pregnancy notifications.
A Note on Access 4: A failure of public provision
- Failure to provide access through the public system affects the most disadvantaged women;
- Costs can be significant for low-income groups. Costs of later term procedures are significant for other groups (c$7000);
- Women in rural and remote communities carry additional burdens;
- Incidence of domestic violence is associated with unwanted pregnancies, and DV can increase woman’s recourse to abortion care; Coercive control and reproductive coercion.
- Women on low incomes often have to borrow money for gap payments and travel costs. They also rely on the work of charities and not-for-profits.
A Note on Abortion Access: Abortion Exceptionalism (again!)
The fact that such services are provided by third parties contributes to the idea that such services are unusual, different or in some way out of the norm. It is important that such perceptions, and the circumstances that give rise to them, are challenged. Reproductive services should be a basic part of mainstream healthcare and they should therefore be delivered by the same health service that provides other basic services.
Nathan Emmerich, ‘We should not take abortion services for granted’ Clinical Ethics (2023) 18(1): 1-2, 2.
Discuss issues of objection
a) Concern services that democratic legislatures have deemed legal;
b) Can add to ‘moral uncertainty’ with regard to services introduced to protect key rights. Dignitary harms;
c) Deflates other understandings of conscience in health care;
d) ‘Conscience creep’;
e) Support for CO provisions are often expressions of opposition to specific practices (rather than the protection of dignity or psychological integrity);
f) CO in education can undermine emergency abortion care (where there is no right to CO);
g) Discussion of CO rarely acknowledge the inequalities and power imbalances that shape health service use and delivery.
Discuss issues of access in nsw and act law
The Australian Capital Territory
-
Health Act 1993
- Performed by a registered medical practitioner in an approved medical facility;
- No gestational limit BUT
- Medical abortion offered up to 9 weeks, surgical up to 15. After 16, will have to travel.
- From April 2023 free ‘universal’ abortion care up to 16 weeks. LARC offered at time of abortion. Must be a resident do not need a Medicare card.
- Partnership with MSI. Projected to cost $4.6m over 4 years.
- After 16 weeks? Medicare covers some costs. Gap payments have grown. Expenses increase if travel to Sydney is necessary. Patients may be eligible for interstate medical travel payment.
- Standing Committee on Health and Community Wellbeing, Inquiry into Abortion and Reproductive Choice in the ACT. April 2023. Final report scathing of Calvary Hospital and failure to provide reproductive health services. The Report problematised an ‘overriding religious ethos’.
- May 2023, ACT government launches $1 billion compulsory acquisition of the hospital. ACT Health Minister Rachel Stephen-Smith said the move was ‘absolutely not’ about the hospital’s position on abortion.
New South Wales
-
NSW Abortion Law Reform Act 2019.
- Abortion is legal up to 22 weeks gestation.
- After 22 weeks gestation, a specialist medical practitioner may perform an abortion if they have considered in consultation with another specialist:
- all relevant medical circumstances, and
- the person’s current and future physical, psychological and social circumstances, and
- the professional standards and guidelines that apply to the specialist medical practitioner in relation to the performance of the termination.
