Dr Julia Duffy1
1Queensland University Of Technology, Australian Centre For Health Law Research, , Australia
Biography:
Julia Duffy is a Research Fellow, providing consultancy services to government and non-government organisations on disability and human rights and researching and publishing in those areas. She has served as Qld’s Deputy Public Guardian, on Qld’s Mental Health Review Tribunal, and as a director of Family Planning Queensland.
Abstract:
Aims:
To consider to what extent court decisions on termination of pregnancy for adult women with impaired capacity comply with human rights norms.
Method:
Court and tribunal decision databases in Australia, New Zealand and England and Wales were searched.
Scope:
The study is limited to pregnant ‘women’ so as to not to elide their experiences with those of pregnant people who do not identify as women. It is limited to the above jurisdictions where substituted decision-making regimes are comparable, as are abortion laws.
Results:
Thirteen decisions were located. Analysis focused on: 1. Legal capacity determinations; 2. Whether women’s will and preferences were followed; and 3. Women’s ‘voices’.
Due to the low yield and fact-specific nature of the decisions, they don’t operate as binding precedents but are influential. Most courts set a very low capacity threshold and in cases of incapacity, the decision on abortion usually followed the woman’s will and preferences.
Conclusions:
Despite claims of widespread forced abortion for women with disabilities, this is not evidenced by these official records. I conclude by suggesting that despite the societal framing of abortion as a complex ethical matter, courts recognise that for individual women, these decisions are essentially personal and intuitive. They do not readily lend themselves to analysis against Kantian standards of reasoned decision-making; but as theorists such as Gilligan and Herring have argued, can be more readily understood within a framework of care ethics.
Presentation Slides PDF – Click here