Trump 2.0 in a post- Dobbs world: Could the threat of restrictive abortion laws extend to Australia?

Abstract

Seismic shifts occurred in American abortion law after the fall of Roe shortly after the first Trump presidency. Reproductive rights will remain a highly contentious issue in the second Trump presidency and the increasingly restrictive law in the US has prompted similar advocacy in international jurisdictions including Australia. This article compares the legal landscapes and relevant influences in the US and Australia to evaluate the likelihood of the passage of restrictive abortion law in Australia.

The first Trump presidency set the scene for a new era in restrictive abortion law. It laid the groundwork for the 2022 United States (US) Supreme Court decision of Dobbs v Jackson Women’s Health Organization (Dobbs) which overturned Roe v Wade (Roe) and removed the constitutional protection relied upon to provide lawful abortions across the United States. ¹ Dobbs has turned back the clock on decades of progress for women’s rights and reproductive freedom. The subsequent criminalisation of abortion in many US states has emboldened the international antichoice establishment. To evaluate the likelihood of success of similar advocacy in Australia, it is necessary to compare the public sentiment about abortion in the two countries as well as the relative political landscapes. Comparing the varying approaches to maternal health and human rights also provides useful insights about the future of reproductive rights in Australia. ²

Abortion and equality

Equality before the law is only a reality if, unencumbered by biology, a person’s potential to participate in all aspects of life is fully realisable. Biology and traditional roles mean the health, economic and social burdens of pregnancy and caregiving are disproportionately borne by women. From a socio-cultural perspective, forced reproduction is a time-honoured strategy to guarantee the subjugation of women and fortify traditional patriarchal power structures. Motherhood dramatically impacts a woman’s ability to participate in education, to work and to achieve personal goals on an equal footing with men. This highlights why the antichoice movement is inherently gendered and profoundly undermines the status of women.

A legal analysis of antichoice law reveals the underlying misogyny. By criminalising abortion, a woman’s utility as a reproductive tool is weaponised to restrict her entitlement to legal personhood. Antichoice law disallows women basic agency and authorship over their life plan. The inchoate rights of the fetus, even pre-viability, obviate the autonomy of the pregnant woman. This is untenable when every pregnancy presents a risk and 1 mother dies per every 5000 live births in the US. ³ The equivalent Australian maternal mortality rate is 1 death per 25,000 live births. ⁴ Maternal mortality rates are the highest in those groups with intersectional identities and disadvantage, especially non-Hispanic Black and Indigenous women. ⁵ This illustrates why a lack of reproductive justice endangers the basic human right to life and health. Reproductive choice is a core tenet of gender equality which must be available to all women, but is especially relevant to those in toxic or non-consensual relationships involving intimate partner violence, incest or rape. Undesired procreation in these settings is likely to be traumatic and risks perpetuating unsafe, dysfunctional relationships.

The US legal landscape

The seismic shifts that have occurred since Dobbs are explained by the highly politicised and partisan nature of abortion in the US. After multiple unsuccessful challenges to Roe triggered by conservative, Republican-led states, Dobbs succeeded in deciding that bans for pre-viability abortions were constitutional. ⁶ Roe was vulnerable because reproductive rights had not been contemplated within historical constitutional frameworks. The validity of reproductive rights relied on the tenuous ‘reading-in’ of non-interference based on a constitutionally protected right to privacy. The exigencies of statutory interpretation leave provisions susceptible to legal argument unless drafted with irresistible clarity. The ratio decidendi of Roe was arguably always a strained construal, so interpretive technicalities were at risk of striking it down. Trump was able to appoint three conservative justices in his first term, all of whom voted to overturn Roe. Over-reliance on Roe effectively left reproductive rights in the crosshairs of political whim. Not only did the protections prove fragile, Roe did not acknowledge the importance of gender equality. The potential significance of this deficiency was foreseen by the estimable Justice Ruth Bader Ginsburg shortly before her appointment to the US Supreme Court. ⁷ Although progressive in its time, the Roe judgment relegated reproductive rights to a personal issue which apparently should remain hidden and hence, tinged with scandal, secrecy and shame. If anything, the reasoning of Roe further stigmatised reproductive choice and denied its essential healthcare status. Roe simply did not shine the light on the central issues of a woman’s right to self-determination and bodily integrity. Reproductive choice is ideally situated as an equality initiative and normalised healthcare.

The aftermath of Dobbs has left the US with state-dependent patchwork abortion law. Currently, 12 states have near total bans and four states have 6-week bans, often with carve-outs for rape and incest and some protections for maternal health. ⁸ Nevertheless, all hope is not lost because the law in many states is in flux. Despite measures to provide legal abortion failing in three states at the recent presidential election, seven states voted to enshrine the right to abortion in their constitutions. ⁹ Regardless, US abortions reached a record high in 2023, so it is imperative to remember that legal barriers don’t prevent abortions, they just increase the hardship and health risks for those needing to end their pregnancy. ¹⁰

Influences in the US

The US is bucking a near-universal worldwide trend towards the liberalisation of abortion laws, along with Nicaragua, Poland and El Salvador. ¹¹ The successful passage of antichoice legislation in many Republican-led US states is largely consistent with voter sentiment and highlights how attitudes are starkly drawn along party lines. ¹² Only a slim majority of Americans show prochoice support in contrast to other Western nations. ¹³ These differences are obviously multifactorial but may be associated with the pride that the US has always had in individualism. ¹⁴ Although economically successful, individualistic approaches are linked to conservatism, and will often cede power to historical sources of authority underpinned by white male supremacy and patriarchal frameworks. ¹⁵ This resists empowerment of traditionally underrepresented and underprivileged minorities, including women and people of colour. Another factor which may be relevant is the rise of Christian nationalism. ¹⁶ The Republicans have fostered a powerful alliance with evangelical Christians. The religious right is historically intolerant of equality initiatives concerning women, LGBTQI+ communities and other minorities. In addition, the US has refused to become a signatory to the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). ¹⁷ This gives the US the unenviable status as the only industrialised democracy which has failed to ratify the CEDAW. Moreover, it puts the US in the same company as only a handful of nations with highly problematic records in gender equality and human rights, including Somalia, Sudan and Iran.

The political defence of patriarchal concepts, such as preserving traditional gender roles and antichoice law remains sacrosanct in many US states. Tragically, the de-prioritisation and limitations placed on reproductive care is associated with the US having the highest maternal mortality rates observed in high-income nations. ¹⁸ Legal uncertainty and fear of prosecution can lead to delayed or inadequate treatment of patients suffering pregnancy complications. Conservative jurisdictions are also contending with a shortfall of health providers due to their reluctance to engage in conflicted and substandard care. Unsurprisingly, safe abortion care is not mentioned in the Centers for Disease Control and Prevention (CDC) strategy for reducing maternal mortality despite the recent publication of the World Health Organization (WHO) Abortion Care Guideline. ¹⁹ The scale of preventable deaths in one of the most advanced economies in the world is indefensible. Identity politics and the escalating culture wars have led to reproductive justice becoming a political football. This in turn has created a daily crisis endangering the lives of too many Americans who encounter an unplanned pregnancy. ²⁰

The Australian legal landscape

Like the US, Australia is a federation but lacks federal law protecting reproductive rights. However, unlike the US, the eight Australian states and territories have decriminalised abortion with the most recent reforms in 2023. ²¹ Unconditional abortion is legal with gestational limits of at least 22 weeks, except Tasmania which has a limit of 16-weeks. ²² Late gestation abortions are also available but are subject to increased regulation and medical approval. Despite reforms, non-legal barriers persist including financial constraints, geographic barriers, negative practitioner attitudes and deficiencies in practitioner training which contribute to inequitable access. ²³ Of relevance, threats to cease ‘social’ or ‘non-medical’ abortion services instigated by antichoice health bureaucrats in two regional hospitals in New South Wales required Ministerial intervention to reinstate the services in 2024. ²⁴

Notwithstanding settled prochoice laws, conservative politicians at both state and federal levels consistently propose antichoice law, as also occurred in the Queensland parliament in 2024. ²⁵ Similarly, a Bill forcing pregnant women needing to end a pregnancy to deliver their fetus alive after 28-weeks was narrowly defeated in South Australia. ²⁶ Although a near-miss, it is heartening the law failed; however, it is predictable that conservative politicians will continue to try to opportunistically constrain late-gestation abortion access by attempting to extend fetal personhood. ²⁷ These cynical and cruel scaremongering ‘born alive’ tactics aim to invoke a slippery slope to infanticide and are based on similar laws introduced by the US Republican Party. ²⁸ The reality is that such laws would rarely be applicable and constitute an inhumane impediment for distressed families already facing agonising circumstances, most often involving severe fetal abnormalities and/or serious threats to maternal health. ²⁹

Influences in Australia

Unlike the US, a clear and consistent majority of Australians are prochoice. ³⁰ The decriminalisation of abortion in Australia has been slow but demonstrates an intentional and iterative process emerging from the democratic intention to support reproductive justice. Most elected representatives seem to innately understand that reproductive freedom is a central element to achieving meaningful gender equality and will be fiercely defended by the voting public. Attempts to put antichoice law on the national agenda risk voter backlash and have consistently failed. ³¹ Antichoice legislators are headline grabbing, but largely ineffectual, and notable for their exceptionalism. Moreover, public policy and law is less susceptible to the rallying cry of the fringe antichoice lobby.

Fortunately, the Australian political climate is less toxic and divided than the US and reproductive rights generally have bipartisan support. Equitable access to pregnancy termination services is an explicit goal of the National Women’s Health Strategy. ³² Furthermore, a recent Senate inquiry concerning reproductive healthcare has acknowledged the need to improve services and has already implemented initiatives including easier access to medical abortion. ³³ Moreover, the Australian High Court is less politicised than the US Supreme Court and upheld safe access zones for reproductive services in 2019. ³⁴ In addition, the priority placed on maternal healthcare is demonstrated by Australia having one of the lowest maternal mortality rates in the world. ³⁵ The respect afforded reproductive healthcare in Australia would be inconsistent with placing limits on services. Safe, accessible abortion is embedded in public policy and viewed as normalised, essential healthcare even if reality does not currently equate with policy aspirations. The prochoice perspective is well-demonstrated by the 2023 publication of the inaugural guideline outlining best practice for abortion services by the Australian and New Zealand governing body for obstetrics and gynaecology. ³⁶ Finally, Australia has reporting obligations under the CEDAW and the ninth periodic report will respond to issues raised by the Committee in 2023. ³⁷ This report was due in late 2024 and Australia will have an upcoming appearance before the Committee to speak to the report and respond to further questions about the submission.

Conclusion

Reproductive justice represents the beating heart of gender equality. Antichoice law advocates espouse misplaced moral authority more intent on controlling the role of women in society than manifesting genuine concern about pregnancy outcomes. Enabling women to have agency and control over their life plan is a precondition to the full participation in society bestowed upon men as a birthright. Unfortunately, the fall of Roe has exposed a nation that remains beholden to patriarchal concepts and is unwilling to trust American women to make decisions that are right for them. The failure to build on the scaffolding provided by Roe has ultimately shown that women’s health and wellbeing are at the mercy of political point-scoring in the US. As forewarned in the spirited dissent in Dobbs, US law now coerces women to give birth and assigns them second-class citizenship. ³⁸ Let’s hope that American women and their allies can unite and embrace the principles of freedom and equality in a way which crosses party lines in the near future.

Basic reproductive rights are currently non-negotiable in Australia without a radical shift in public sentiment and legislative direction. ³⁹ There is established bipartisan support aiming to overcome historical injustices. However, vigilance is required because there will always be forces trying to defend patriarchal power structures. It is well past due to realise feminism is not a fad. It is a slow march toward equality when, even if there are two steps forward and one back, the overall trajectory is unidirectional.

Enduring legacies will be born out of the realisation that progress, especially with women’s rights and reproductive freedom, is inevitable. Fortunately for Australians, going backwards is just not a foreseeable option.