Policing The Body: Women’s health and reproductive rights

By Marta Skrabacz
Demonstrators rally outside of the U.S. Supreme Court during oral arguments in Sebelius v. Hobby Lobby March 25, 2014. Credit: Chip Somodevilla, Getty.

“Women make up half our population. Their reproductive health cannot be separated from their overall health, and their overall health impacts their families, their jobs, and our society as a whole … Helping women stay healthy will help us all.”

 Dr Willie Parker, American doctor and an advocate for access to abortion.

Throughout the twentieth and now into the twenty-first century, the fight for women’s rights involved a strong focus on the battleground of women’s health and reproductive rights. Healthcare is a necessary component of human rights. The right to healthcare means attaining a high standard of physical and mental health, access to medical services and health protection. Gender and healthcare are intrinsically intertwined. Disparities in gender can reflect inequalities in health status and the provision of appropriate health services.

Gender disparities in healthcare exist because of a culture which gives rise to those gender differences. According to sociologist Clifford Geertz, culture can be defined as “human thought” and it is “both social and public – its natural habitat is the house yard, the market place, and the town square.” This understanding of culture has “the requisite implications of power and control mechanisms,” consequently allow “for the exploration of gender inequality and inequity”. This is not to suggest that gender differences inspire inequality, rather that particular differences can allow one group to become empowered at the expense and detriment of the other. An example given by the World Health Organisation (WHO) is the fact that women on average have lower cash incomes than men. As such, it is implied that these gender norms and societal standards can adversely affect the way that health and healthcare services are run and regulated.

By focusing on female health, the discussion instinctively turns towards issues of sexuality and reproduction; by nature, those topics are central to women’s health. Those topics, however, are also subject to influence exerted by societal structures, government and traditional dominant values.When subject to religious policies or government policies, women’s human rights can be adversely affected. In particular, the controversial topic of abortion and the manner in which it has been policed in Australia is another example of how dominant traditional patriarchal values has shaped the discourse in Australia.

Scholars in female healthcare have demonstrated that gender inequality in health has been a major area of study in sociology. By analysing the differences in male and female health rates and mortality,feminist scholars have sought to use this research to “challenge the detrimental effects of the patriarchy on women’s health.”

One of those areas studied is contraception. There are biological differences between men and women that lead to differential health outcomes. However, it isn’t always accountable for reasons why male biological defects are covered yet female needs such as birth control aren’t. In 2013, the American Supreme Court heard a series of cases, known as “Hobby Lobby cases, as to whether corporations have the right to refuse to provide insurance coverage for contraception, based on the religious beliefs held by the corporation’s owner. This was instigated by the healthcare reform bill introduced by President Obama that mandated that religious corporations pay for insurance to cover birth control and morning-after pills, which “runs deeply contrary to fundamental Catholic teaching,” writes Kathleen Parker. The court in Burwell v Hobby Lobby Stores ruled that the Christian-owned company could claim religious exemption to a law, requiring employers to pay for their workers’ contraception. This debate wasn’t about the use of birth control. It was about the autonomy of the body.The vitality of this debate in the twentieth-first century evidences a myriad of opinions as to who yields power in deciding the use and control of contraception, whether it is women, corporations or the State.

In America, Doctor Willie Parker advocates health reform for women and is a vocal spokesperson for abortion rights. The state of Mississippi, where Parker works, has been subjected to substantial amount of regulations and restrictions which left the state without a single abortion provider over the past few years. In a recent interview Dr Parker refers to the landmark case of Roe v Wade (1973), which changed the scope of abortion in America. Parker observes how the gender imbalance makes victims out of women, explaining, “before Roe, that meant women taking risks with their health and their lives. And after Roe it will be more of the same… and desperation leads to exploitation. People are recognizing an opportunity to capitalize on the desperation of women.”

There is no denying that the historic dialogue of feminism has produced a well-founded discussion on the gender equality. And while this has been conducive to reforming many healthcare changes, abortion reform is one of those areas that has been slow despite reproductive rights being a pinnacle to women’s liberation movement. In Australia, abortion is a subject under state, not federal, law (excluding the ACT). In most states, abortion is considered legal, so long as sanctioned with good reason by a medical practitioner and is executed within a specified period of time.

In 2008, the Victorian Parliament passed the Abortion Law Reform Act to clarify the legal conditions for abortion, acting on the advice of the Victorian Law Reform Commission.  In essence, it no longer stipulated the need for doctors to provide medical or psychological justifications for abortion; a “registered medical practitioner may perform an abortion on a woman who is not more than 24 weeks pregnant. For procedures performed after this point, justifications made in concert with a second doctor are required.”As Karen Gleeson, ARC Research Fellow at Macquarie University writes, it’s been regarded as a victory where “women’s liberation framed the tenor of mainstream feminist abortion demands”.

However, while the Victorian Act was heralded as a medical and feminist victory, the legal-political framework of abortion remains complex and unforgiving in other states of Australia. The most recent legal proposal in relation to Australian abortion law was the bill known as “Zoe’s law” [Crimes Amendment (Zoe’s Law) Bill 2013],” which was passed in the NSW Parliament in late 2013. It proposed to “create a new offence of grievous bodily harm to a foetus” which was purported to give rights to an unborn foetus. The legislation was framed in the context of the death of Brodie Donegan’s unborn child, who was called “Zoe”, after being the victim of a car accident. Donegan’s reasoning for the legislation was that she felt her unborn child’s death went uncharged. The NSW Parliament accepted proposed changes to the law so that a foetus of 20 weeks or weighing more than 400 grams will be treated as a living person.

What this did, however, is leverage the rights of the mother and unborn child and treat them as equals. Mehreen Faruqi, the NSW Greens MLC and spokesperson for the Status of Women, commented that it “heralds dangerous consequences for women’s reproductive health and bodily autonomy.” It has the potential to override a mother’s consent where a foetus is regarded and legally defined as a person. The NSW Bar Association has argued that there was no such gap in the existing legal provisions as there are adequate penalties (maximum 25 years) for dealing with harm to pregnant women. At present NSW law defines harm against a foetus as “aggravated assault or violence committed against the mother.” The Bar Association states that legislation such as “Zoe’s law” is not just an attack on women and doctors in relation to abortion but will lead to restrictions on women’s human rights.”

The WHO states that its purpose, to seek the “welfare of the world,” requires the “maximum participation of women on equal terms with men in all fields.”The route to promoting gender equality in health care appears to be through education, and encouraging that access to education. There is a large presumption that the difference between men and women in healthcare is due to pregnancy and birth, writes Dawn Howerton, student of social psychology. Howerton believes that while these are significant factors, there are a myriad of remaining gender differences “such as medical procedures, use of medications and prescriptions and preventive care such as screenings and immunizations.” It is undeniable that over centuries, society has been “structured by patriarchal cultural ideologies” where women are more “vulnerable to abuse and mistreatment, making them more prone to illnesses and early death,” according to the WHO’s report on Women and Health.

Healthcare laws and services are a reflection of social policy. That social policy needs to reflect the needs of a woman for her health, and the health of society.

Marta Skrabacz is a student at Monash University. Currently, she is completing a law degree, focusing in human rights and international law.  She completed her undergraduate honours year in 2013 with a thesis in medieval political theory.

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