1. Introduction: Safe Abortion as a Sexual and reproductive health right (SRHR) Fulfillment
Australia and Indonesia are two countries who are close neighbours, strategic partners and share a friendly relationship.[1] The two nations have a long and proud history, and, at present, Australia works with Indonesia in health security, stability and economic recovery initiatives.[2] Whilst the two countries have a solid relationship, their legal frameworks in relation to pregnancy termination are vastly different, and the issues experienced by girls and women when attempting to access safe abortion as a sexual and reproductive health right (SRHR) are in some ways shared, but in many ways different.
Safe abortion is defined by the World Health Organisation (WHO) as pregnancy terminations that are carried out using a method recommended by WHO, by someone with the necessary skills and at the appropriate time in the pregnancy duration.[3] Central to the fulfillment of SRHR is the prevention of unsafe abortion to reduce maternal mortality and protection from physical and mental risks associated with abortion.[4]
Women’s sexual and reproductive health relates to various human rights, including the right to life, the right to be free from torture, the right to health, the right to privacy, the right to education and the prohibition of discrimination.[5] Accordingly, States have an obligation to respect, protect and fulfill rights relating to women’s sexual and reproductive health, which includes taking steps to prevent unsafe abortion.[6] Sexual and reproductive rights are also inextricably linked to the achievement of a number of sustainable development goals (SDG) especially goals 3 and 5 about health and gender equality.[7]
The United Nations Committee on Economic, Social and Cultural Rights (CESCR) has maintained that restrictive abortion laws must be liberalised to guarantee access to quality pregnancy termination and post termination care as well as respect the right for a women to make autonomous decisions about their sexual reproductive health.[8] Additionally, under international human rights law, States have a duty to ensure that the regulation of abortion does not cause women and girls to resort to unsafe abortion.[9] States must also take steps to reduce the stigma around people seeking a pregnancy termination.[10] Further, human rights law requires the provision of pregnancy termination to be based on free and informed consent of the person receiving the abortion without a requirement for further authorization.[11] Lastly, this right includes an obligation for a State to ensure a women is provided with accurate, evidence-based information on a confidential basis, as well as a choice to refuse such information when offered.[12]
The Special Rapporteur on the right to health confirms that reproductive health services and facilities must be of good quality, accessible without discrimination, accessible physically and economically and available in adequate numbers.[13] Where abortion is legal, it must be accessible in practice, both with physical infrastructure and services and the law and policies must be formulated, interpreted and applied in a way that is compatible with human rights.[14]
2. Affected Vulnerable Groups as a Research Target
Pregnancy termination is by nature a woman and girl’s rights issue. Accordingly, the affected vulnerable group that will be the focus of this research will be women and girls. Globally, they are disproportionately affected due to factors such as lack of capital, wide wage gaps, gendered work norms, childcare responsibilities, and exclusion from basic services.[15] Further, poverty amongst women increased during reproductive years as they take up socially assigned care and domestic responsibilities.[16] Amongst girls and women, there are groups that are disproportionately affected when it comes to the realisation of their right to safe abortion, and these differ between the two countries. Whilst women and girls are the target group in this paper, it is important to acknowledge that other people who do not identify as a woman, such transgender men, transmasculine people and non-binary people can also experience pregnancy and abortion.[17]
2.1 Affected Groups in Australia
In Australia, well-informed women in urban areas, with reasonable economic means seeking first trimester abortions are adequately served under the current laws and health system.[18] However, abortion care in Australia is most notably financially, geographically and practitioner availability dependant, meaning abortion access is limited by age, socioeconomic disadvantage, and geographic location. Vulnerable groups face the greatest challenges when attempting to navigate the health care system.[19] These vulnerable groups include people who are culturally and linguistically diverse, Aboriginal and Torres Strait Islander people, people with disability, young people and people who are gender and/ or sexuality diverse. [20] In Australia, Aboriginal and Torres Strait Islander women are one of the worst effected groups, when it comes to access to abortion healthcare, however this cannot considered in isolation from their lived experiences of systematic discrimination and mistreatment.[21]
In 2023, the Australian Senate published an inquiry report addressing barriers to sexual, maternity and reproductive healthcare, in which they considered submissions from a range of organisations. Family Panning NSW (FPNSW) identified in their submission to this senate inquiry that the groups that are worst affected are those who are already experiencing disadvantage, including people with low income, those in rural and remote areas, Aboriginal and Torres Strait Islanders and people from culturally and linguistically diverse backgrounds.[22] Further, an interview with Dr Natalie Kiesey-Calding, an obstetrics and gynaecologist from North Queensland, Kiesey-Calding spoke about her experiences working with women in rural and remote communities with predominantly Indigenous populations. She shared how the biggest challenges that are faced in these communities was the need for care following a medical abortion and echoed the findings of FPNSW, highlighting:
“A challenge for rural and remote communities who are often the victims of rape and unwanted pregnancies…… there is also a lot of stigma around contraception unfortunately. Women who have had Implanon which is a contraceptive rod that goes under the skin in the arm, they’re called slut rods by the men in the community and they [the women with the contraceptive rid] then are seen and are targeted for rape essentially. Unfortunately, unwanted pregnancy is not always something that [women] have got control over to start with and then if they physically have to get out [of the community] to terminate the pregnancy, they can’t actually easily terminate at home, again if they are in a controlling relationship is almost impossible. People who are in an isolated community, it’s really difficult.”
2.2 Affected Groups in Indonesia
In the Indonesian context, young and unmarried women and girls are the most vulnerable, as they are limited options or knowledge around what options are available to them, resulting in them generally resorting to non-professional or unskilled abortion providers.[23] In an interview with Heny Widyaningrum, the Perkumpulan Keluarga Berencana Indonesia national coordinator for the national SRHR program , she agreed with this finding, commenting that unmarried and widowed women and girls face the greatest challenges when it comes to SRHR, as they do not have the same access as married women to reproductive healthcare, for example, contraception. This is supported by the evidence which suggests the practice of abortion is increasingly occurring in Indonesia, especially by girls who become pregnant outside of marriage.[24] With it being estimated by the Centre for Health Research at the University of Indonesia that 2 million cases of unsafe abortion occur annually.[25] Unlike in Indonesia, the research does not suggest that unmarried women and girls are effected disproportionately to other women and girl, likely given the different social context and the fact Australia is a secular society, where less emphasis is put on the sanctity of marriage. Additionally, upon interviewing Yayasan Kesehatan Perempuan (YKP) director, Nanda Dwita Sari, she explained how given abortion is a legal issue in Indonesia, the affected groups in Indonesia are all women and girls.
3. Legal Framework Comparison
3.1 The legal framework
In Indonesia, abortion is outlawed under The Penal Code, with the legislative provisions to this end being in Chapter XIX, Crime on a Soul, and Chapter XIV, Moral Crime. However, there are two instanced where abortion is legal in Indonesia under the Health Act 2009. Abortion is legal if undertaken when there is a medical condition, severe genetic disease or uncurable congenital malformation detected early in the pregnancy that threatens the life of the women or the foetus, or for rape victims who have suffered phycological trauma.[26] In the case of abortions for rape victims, abortion must occur before 6 weeks gestation and in the case of abortion for medical indications, the abortion must be approved by the mother and father of the foetus.[27] In both cases the pregnancy termination must be performed by a competent practitioner, with certification from the Ministry.[28]
In Australia, abortion has been decriminalised in all Australian jurisdictions and is regulated under health legislation.[29] However, the law around pregnancy termination does differs slightly across the different states and territories. There are also additional legislative requirements when accessing pregnancy termination after certain gestational ages, with this gestational ages differing between the different jurisdictions.
Further legislative protections also exist to protect women seeking abortion, in the form of safe access zones. Legislation providing for safe access zones exists in all Australian jurisdictions and prevents activists from picketing outside abortion clinics and obstructing the entrance to those clinics, protecting patients, staff and support person from harassment and intimidation. In most jurisdictions, the safe access zone is a radius of 150 meters around a clinic.[30]
In Australia, across all jurisdictions, there is some form of legislative provision that allows for conscientious objection, which allows healthcare practitioners to exempt themselves from providing certain medical services. As part of the conscientious objection legislation, most jurisdictions have an obligation to refer, which requires an objector to direct a woman to someone without a conscientious objection in order to ensure continuity of health care.[31]
In an interview conducted with Dr Natalie Kiesey-Calding, an obstetrics and gynaecologist from North Queensland, Kiesey-Calding commented on how the legal framework around pregnancy termination is informed by the Royal Australia and New Zealand College of Obstetrics and Gynaecology (RANZCOG) policies. These policies are developed by RANZCOG to provide healthcare workers with guidance around pregnancy termination best practice and are revised and updated regularly.
3.2 Challenges based on this legal framework
3.2.1 Stigma
The social and institutional stigma around abortion commonplace in both Indonesia and Australia. The practical effect of this stigma is most present in healthcare facilities. In Indonesia, religious stigma makes access to abortion difficult at an institution level. Kate Walton, a Jakarta based development professional working on women’s rights commenting on this, saying:
“Health professionals who are against abortion will often discourage women and girls from terminating pregnancies, even when permitted to do so by law. Many do not consider the woman’s health as the paramount issues, but instead see abortion as a sin and something to be avoided at all costs.”
It is a common belief amongst Indonesians that abortion is a sin. Further, one study found that the social stigma around abortion differs for unmarried women, where it is considered acceptable under certain circumstances.[32] It is seen as acceptable if marriage is not possible, or if the man wants the abortion and necessary to avoid personal and family shame if the man refuses to take responsibility of the child and get married.[33] This comes out of the belief that having a child out of wedlock is perceived as a greater sin than abortion.[34]
Nanda Dwita Sari, when asked what she believes are the biggest contributing factors to the stigma in Indonesia, explained how gender inequalities and the patriarchy affects the health law and as a consequence women’s rights, contributing to the high maternal mortality rates that are a result of unsafe abortion. Nanda Dwita Sari added, the understanding surrounding reproductive health and gender both amongst the community and the regulators is very weak.
In Australia, the stigma around abortion deterred doctors from assisting individuals to access abortion services as they fear they will be ‘blacklisted’ from certain hospitals or face personal attacks.[35] Further, primary health care providers and hospitals alike do not advertise or publicise their abortion services because of stigma.[36] At an institutional level, stigma influences whether and how abortion services are provided in many hospital, especially when conscientious objectors hold positions of power. [37]
In both countries, the legal regulation around abortion contribute to the stigma. In Australia, the stigma surrounding abortion, is in part due to the fact abortion was only decriminalised in recent history.[38] Following decriminalisation, the over regulation of medical abortion drugs was a major contributor to stigma, given it was its unique status as drug that required registration and training to prescribe and dispense, up until recently.[39] In Indonesia, the inclusion of pregnancy termination in the criminal code in Indonesia is a direct contributor to the stigma surrounding abortion. Further, the new Penal Code, which was passed on 6 December 2022, due to be enacted in 2026, continues to criminalize women and any person who assists women with abortion.[40] This continued criminalization of abortion will likely see the continuation of the stigmatization of abortion in Indonesia. For unmarried or single women, their experience of the stigmatisation of abortion is highlighted by their experience with service providers. One study found service provider were highly critical of unmarried women seeking an abortion and the quality of care was compromised by the stigma attached to premarital sex and pregnancy.[41]
The stigma around abortion underpins a range of social, political and institutional factors that hinder access to abortion care in both Australia and Indonesia.[42] The stigma surrounding pregnancy termination also has negative effects on all women and girls and in practice can mean they avoid or delay accessing abortion and post abortion care because they fear being harassed by protestors or they may incorporate negative perceptions, beliefs or experiences into their own self.[43] Further, in the Indonesian context, community and provider-based stigma can lead women to seek care outside of the formal sector or outside of legal restrictions.[44]
3.2.2 Physical Access
In Australia, the 2023 senate inquiry report found that abortion care is a postcode lottery.[45] With 29% of the Australian population living in remote and rural areas,[46] one of the most significant obstacles to accessing abortion can be attributed to the geographical vastness of Australia and the significant distances between urban centres, posing a challenge for women living in remote and rural areas.[47] Physical access and financial access are also interconnected, with the distance women must travel leading to additional transportation and accommodation costs.[48]
In Australia, given the legacy of criminalisation and the recent decriminalisation, the public and private health systems have largely failed to adapt to the new legislative landscape.[49] Public services are inadequately funded and not widely available whilst private services are largely located in metropolitan centres only, making them geographically unavailable for women living rurally and remotely.[50] Additionally, a number of hospitals and healthcare facilities, refuse to provide abortion services, because of religious governance.[51]
The issue in Indonesia is twofold, firstly women attempting to access legal abortion will have to navigate a difficult system and those who cannot access legal abortion, will resort to accessing illegal abortion, which is generally unsafe. The first issue is a result of the lack of a specific policy to regulate how to govern, implement and finance safe abortion even in the era of the national health insurance scheme.[52] Kate Walton, A Jakarta based women’s rights development professional, explained that even when rape victims attempt to seek abortion, they may be met with a number of roadblocks, she said:
“Even in cases where a pregnancy is a result of rape, the abortion process be incredibly complicated and time consuming, especially if the victim does not understand her rights under the law. The article allowing abortion in cases of rape is not widely known by the average citizen”[53]
The second part of the issue is that research has found that abortion rates in countries with highly restriction abortion laws are similar to those where abortion is broadly legal. Given the legally restrictive nature of Indonesia’s abortion laws, it is likely that the prevalence of unsafe abortion is high.[54] For example, a 2020 study, which combined data from a range of sources, estimated that 1.7 million abortions took place in Java in 2018, with a high proportion of these abortions being self-managed, using traditional herbal medicine or massage.[55] The prevalence of unsafe abortion likely contributes to the high rates of maternal mortality rate seen in Indonesia, which are the highest in Southeast Asia.[56]
In Indonesia, unsafe abortion without medical supervision take the form of women and girls injecting cocktails of local plants and herbs, the purchase of dangerous and unregulated drugs or the use of underground clinics.[57] Research has demonstrated that there is a widespread awareness of medical abortion medication in Indonesia, which is difficult to access from brick and mortar stores, and whilst it can be purchased online, there is many issues associated with this.[58] Further, Heny Widyaningrum, commented on how abortion services are accessed saying that law[59] stipulates that the service providers should be Obstetrics and Gynaecology specialists or trained doctors. However, in practice, some abortions are also performed by midwives, which is not in accordance with Minister of Health Regulation No. 3 of 2016.
3.2.3 Financial Access
In Australia, it is within the jurisdiction of state governments to provide abortion services in public hospitals and within the federal jurisdiction to subsidise abortion services in the private sector for those entitled to access Medicare.[60] Deficiencies in both of these realms, mean some women are met with a significant financial barrier when attempting to exercise their right to a safe abortion. Given the lack of public funding, most abortions are provided in the private health system which leads to large cost discrepancies and leaves many individuals hundreds of dollars out of pocket, meaning for many Australians pregnancy termination is not affordable.[61] This is despite the fact that medical abortion medication is listed on the Pharmaceutical Benefits Scheme and a rebate for surgical abortion is available under Medicare.[62] A 2015 study found that two-thirds of Australian women needed financial assistance from other when accessing abortion healthcare.[63] This limitation to abortion access has a significant impact on women and girls, already in a vulnerable financial situation.
In Indonesia, the financial burden of abortion is similar to that in Australia. Abortion services costs are inflated and uncontrolled in Indonesia, particularly for unmarried women, given that the services are outside of the legal indications.[64] The average cost of abortion services are beyond what most women can afford without the assistant of their partner, family, or friends.[65] Further, women will typically avoid their follow up appointments in order to not rely further on their partner, friends and family and to preserve their social reputation and secrecy. This can in turn leave these women at risk if they experience any complications.[66] The effect is exacerbated for unmarried women, who seek confidential services to avoid social stigma and ostracization, as the price of accessing confidential abortion services is high, with the cost of necessary drugs, for example pain management drugs, being an additional cost.[67] These high costs are a barrier for many women, and mean a lot of women will delay contacting a qualified provider.[68]
3.2.4 Gestational limitations
In Indonesia, there is currently a six-week gestational limit for victims of rape who wish to access abortion, however this is set to change when the new Criminal Code is enacted in 2026, as the Criminal Code and Law No.17 of 2023 will change the gestational limit to 14 weeks.
The six-week gestation limit, for rape victims is problematic for a number of reasons. Firstly, women generally do not know they are pregnant until around 10-12 weeks, by which point it is too late to seek a legal abortion.[69] Heny Widyaningrum, commented on this issue, adding once they find out they are pregnant, they will still need to discuss the pregnancy with family and/ or their husband and make a decision on what to do, which take time also, so in practice a women will not consider abortion until they are around 8 weeks pregnant. Secondly, the process of seeking a legal abortion can be long, bureaucratic and costly, often exceeding the government’s safe abortion requirement.[70] The fundamental issue with this law is summarise well by Indonesian human rights lawyer, Veronica Koman who said:
“The limited opportunity for abortion under these two most dire circumstances contradicts the spirit of the Reproductive Health Law, which aims to protect women’s health.”[71]
In practice, health care workers have expressed concerns about the six-week timeframe. The implications around the 6-week timeframe are unclear and healthcare workers fear the criminal ramifications around performing abortions for rape victims.[72]
In most Australian jurisdictions, gestational limits remain a feature of the legal framework. This practical effect of this differs depending on the jurisdiction, however the lack of uniformity is problematic given it encourages ‘forum shopping’ and creates geographical disparity.[73] The inconsistencies across the different jurisdictions in Australia mean that some women will travel to different states in order to access abortion.[74] For example, one study, that interviewed a healthcare worker in Western Australia, found that it is common practice for patients from Darwin to come into Western Australia if they are above their gestational limits in that jurisdiction.[75] It also exacerbates socioeconomic disparities as women in a position to access private medical care can usually do so expeditiously and are therefore less effected by the gestational limits then women who experience geographical or socioeconomic disadvantage.[76]
3.2.5 Deficiencies in Attitudes, Education, and training in the medical profession
Given the history of criminalisation of abortion, there is largely an absence of the medical curricula and doctor training surrounding abortion healthcare in Australia.[77] In Indonesia, some health workers are reluctant to assist women and girls accessing legal abortion or providing information on legal safe abortion, given their own religious and moral convictions.[78] For example, NGOs in Surabaya reported that midwifes and doctors refuse to provide legal abortions given their own beliefs and recommend pregnancy continuation, telling them it is a ‘sin’ to abort.[79] Additionally, accessing non-biased medical reproductive healthcare is difficult, given that is a commonplace for a healthcare professional to ask the marital status of an individual, and the answer to this question having a binary effect on the women’s experience of the healthcare.[80]
Additionally, in Indonesia, an illegal abortion can result in the doctor, midwife or a pharmacist who performed that abortion being sanctioned. The new Penal Code will enact a broader criminalisation of individual actions, potentially criminalising civil society organisations and other similar organisations.[81] This will further inhibit access to safe abortion, given providers will fear criminalisation.
3.3 How does this affect the vulnerable groups?
With consideration of the major issues surrounding the access to safe abortion as a SRHR it is clear that there are issues that are experienced by and affect all women and girls in both countries. Overall, the current issues surrounding access to safe abortion are compounded for Australia’s most marginalised and vulnerable groups, including those financially disadvantaged, geographically disadvantaged, those experiencing family violence or sexual abuse, substance use disorders, disabilities, child protection involvement, poverty, and other complexities.[82] In Indonesia, issues surrounding access to safe pregnancy termination are experienced more universally, given the nationwide stigma, access issues attributed to criminalisation and limitations of legal abortion. It can be said, however, that these issues are exacerbated for unmarried women.
In Indonesia, the new legal framework around abortion that was introduced in 2022, that will come into effect in 2026 will mean Indonesian women continue to encounter the same issues when attempting to access their SRHR to safe abortion. In passing this new legal framework, the Special Rapporteur group commented that Indonesia had missed an opportunity for the reform process to bring the countries domestic legal framework into compliance with their international human rights obligations in terms of SRHR.[83]
4. Legal Empowerment Initiatives
4.1 Legal Empowerment Initiatives in Australia and Indonesia around SRHR
Legal Empowerment can involve three pillars of individual and community action: know law, use law and shape law.[84] These pillars inform an approach were individuals and communities are empowered to use knowledge to shape and remake laws.[85] The legal empowerment framework is primarily concerned with using popular education, participatory researching, data collection, storytelling and narrative strategies to amplify and educate rights-derived people and communities.[86]
4.1.1 The decriminalisation of Abortion in Australia
As an example, the decriminalization of abortion in Victoria will be examined. The push for decriminalization came as a response to an increasingly anti-abortion landscape, generated after the federal election in 2004.[87] The reform to the criminal law took place over the course of 4 years and was driven by a coalition of organisations and individuals with an interest in women’s rights and women’s sexual and reproductive health.[88] Arguably, it would have been this political climate and the work of this collation that brought an awareness about the abortion law and contributed to the general public’s knowledge surrounding such laws. Following this, the Victorian Law Reform Commission and with sponsorship from the Women’s Affairs Minister of the time, proposed a model of reform by way of a Bill removing abortion from the Crimes Act. The government adopted the Bill without amendment and abortion up to 24 weeks gestation was afforded the same status as any other matter of health care.[89]
Although this reform didn’t come without criticism and the creation of new problems for women seeking abortion, it is a prime example of how legal empowerment initiatives, driven by those interested in women’s rights, can raise public awareness on an issue, even against the prevailed political opinion of the period. In turn this can lead to law reform, that in theory, will enable movement towards the improvements of women’s access to abortion.[90]
4.1.2 The recent Senate Inquiry Report
Another more recent example of legal empowerment initiatives in Australia, that helped change the law in order to assist women realise their rights was the Senate Community Affairs Reference Committee that published an report titled ‘Ending the postcode lottery: Addressing barriers to sexual, maternal and reproductive healthcare in Australia’. By way of an example, the changes around MS-2 Step will be examined. MS-2 Step is the approved medical abortion medication in Australia, that can be prescribed to terminate a pregnancy without surgical intervention. The senate inquiry saw a number of submissions in relation to the current restrictive regulations around the prescription of MS-2 Step. These submissions came from a number of hospitals, government departments, and non-government organisations and civil society organisations, namely Family Planning NSW, Australian Lawyers for Human Rights, Family Planning Alliance Australia and The Royal Women’s Hospital, to name a few. Kiesey-Calding commented on the work done by Pro-Choice organisations and saying “The Pro-Choice groups are really important to lobby for women’s rights in this arena”.
The Senate committee, in their recommendations recommended that ‘the Therapeutic Goods Administration (TGA) and MS Health review barriers and emerging evidence to improve access to MS-2 Step’.[91] Following this, the TGA, as the governing body for drug prescription, removed a number of restrictions on health professionals, who prescribed and dispensed abortion medicine for safe, quality medical abortion.[92] However, it is notable that the issue is still more complex than just access. Kiesey-Calding commented on this, saying “by making it easier to prescribe [MS-2 Step], it’s good for access but not great for care”. This is because a general practitioner who is prescribing this medication may not have the breadth and depth of knowledge required to offer an integrated care model, following the prescription of the medication.
4.1.3 The work that CSOs do in Indonesia to increase access to safe abortion.
The advocacy of civil society organisations was successful in strengthening the provisions for abortion in the new Criminal Code. Under the new law, pregnant women, who are victims of rape and sexual assault will be able to seek a legal abortion up until they are 14 weeks gestation, bringing the new law in line with the WHO standards. The new law, also sees the introduction of the provision for ‘sexual assault’, which currently is not included.[93] Heny Widyaningrum, commented on the work that PKBI and other CSOs are doing surrounding this, saying that since the introduction of this new law, the advocacy efforts have shifted to try and ensure that a new health law[94] also legislates this 14 week gestational limit to align with the new criminal code, instead of just referring to the criminal code. This would strengthen the law surrounding the 14-week gestational limit, and make it less susceptible to reform. To prevent a decrease in the gestational limit, data-driven advocacy is conducted, presenting on-the-ground facts to emphasize the urgency of raising the gestational limit. This advocacy involves collaboration with the police, the Ministry of Health, the government, journalists, Integrated Service Units for Women and Children (UPTD PPA), and other stakeholders to carry out awareness campaigns.[95]
Nanda Dwita Sari highlighted, how a ground up approach is important, she explained that advocacy for policy change is important but the education and empowerment of women, girls and young people is also important. YKP focuses their education efforts in communities, were the understanding around SRHR is very limited. They educate these communities in a way that is, in essence, pro-choice, specifically around how different people hold different values but others decisions around their own bodies should be respected.
However, work done to educate women and girls is a delicate operation, especially in light of the new Indonesia Criminal Code.[96] The new criminal law, that was passed on 6 December 2022, whilst maintained the illegality of abortion, will also criminalize distributing information about contraception to children as well as information about abortion to anyone.[97] Heny Widyaningrum, when speaking about the work she does, said PKBI have a working group for safe abortion, but this group operates under the name working groups for women’s sexual and reproductive rights because of the public and political perception around abortion.[98] This highlights just how sensitive the topic of abortion remains in Indonesia.
4.1.4 A successful example of a SRHR realisation in Indonesia
In the Indonesian context, one successful example of legal empowerment within the sphere of sexual and reproductive health rights, is the new laws protecting citizens from sexual violence. These were a result of a decade long legislative and advocacy process that resulted in protections for all women, especially the most vulnerable.[99] These new laws were an important step towards protecting women’s rights, we’re it is reported that 37% of women experience intimate partner violence.[100] Parallels can be drawn between this legal empowerment movement and the necessity for a similar legal empowerment movement in relation to safe abortion, given the high maternal mortality rates.
5. Can the challenges be overcome with Legal Empowerment Initiatives?
In the Australian context, abortion rights are already relatively progressive when compared to Indonesia. In relation to the current challenges, the evidence suggests that legal empowerment initiatives to date have been successful in improving access to safe abortion. [101] Given this, there is optimism, especially preceding the senate inquiry report, that legal empowerment initiatives will continue to address the challenges. However, the biggest challenge in Australia will be ensuring that those who are geographically or financially vulnerable are afforded financial and physical access to safe pregnancy termination, with stigmatisation. This cannot be considered in isolation from the fact that Australian healthcare systems have many shortcomings across the board in providing healthcare services to these vulnerable groups. In the current neoliberal policy environment, and in the context of the continuing moral conservatism the healthcare system will need to take responsibility for equitable access, and this will only happen under pressure of ongoing activism.[102] To address the issue of stigma in Australia, Kiesey-Calding believes:
“Until there is centralised, recognised at government level and marketed service for termination medicine, and termination medicine to be seen as a legitimate subspecialty, you’ll continue to see fragmented care which is often inadequate, or poorly resourced, or inaccessible to a lot of people.”
In Indonesia, using legal empowerments initiatives to improve the access to safe abortion, will be more of an uphill battle. The new criminal code will see the sexual and reproductive rights of women further diminished, despite the resistance from CSOs and NGOs since the first draft appeared in 2017.[103] When interviewed, Heny Widyaningrum spoke about her concern that that after the new Criminal Code takes effect in 2026, there may be parties seeking a judicial review at the Constitutional Court regarding the gestational limit. The worry is that if a judicial review occurs, the gestational limit may decrease, and the implemented regulations in the health law might set a lower limit than that specified in the new Criminal Code.
Decriminalisation of abortion in Indonesia is far from a reality for those experiencing an unwanted pregnancy and will likely not be on the horizon for the foreseeable future. When compared to Australia, there is a few crucial characteristics that are present in Australia, that Indonesia is lacking. For example, in Western Australia, abortion was removed from the Criminal Code following extensive community engagement that resulted in a majority of the population holding the view that abortion should be decriminalised.[104] This is contrasted with Indonesia, where abortion is seen as a sin by religious majorities.[105] Another major difference between the two nations, being the political situation. Australia has a liberal democracy which is open to legal reform in this sphere opposed to Indonesia, where the democracy is said to be more conservative.[106] However there is some hope, with Nanda Dwita Sari explaining how through the advocacy work done at YKP, they are attempting to make pregnancy termination an issue that is legislated for by health law rather than criminal law. She stated that she believed the Minister of Health is quite progressive is willing to discuss this issue.
6. Conclusion
In conclusion, it is clear that the right to safe abortion is a SRHR that should be afforded to all women and girls in both Indonesia and Australia. In Australia abortion is legal and the issues experienced by women and girls is largely an issue of stigmatization at an institutional level leading to financial and physical accessibility issues. In Indonesia, the issues are similar, given that stigmatization, physical and financial access are also barriers to legal, safe abortion. However, due to the criminalization of abortion in Indonesia for all but two circumstances, perhaps the largest issue this country experiences is the high prevalence of unsafe abortion leading to high rates of maternal morbidity and mortality. In Australia, women and girls who are socioeconomically or geographically disadvantaged, Aboriginal and Torres Strait Islander people and those already experiencing some other disadvantage such as domestic or sexual violence or disability, to just name a few, experience these barriers the most significantly. In Indonesia, unmarried women and girls are the worst effect vulnerable group. Both countries, through legal empowerment initiatives have seen some improvements to the relation of SRHR, however there is still more to do for the full fulfilment of this right. In Indonesia, legal empowerment initiatives will be especially important, to ensure the human rights of women and girls are not diminished by the new Penal Code that continues to criminalise abortion.
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Haining, Casey, Lindy Willmott, Louise Keogh, and Ben White. “Abortion Law in Australia: Conscientious Objection and Implications for Access.” Monash University Law Review 48, no. 2 (2022): 238–71.
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Llewellyn, Aisyah. “Compounding Trauma: Indonesia’s Abortion Law.” The Diplomat, August 14, 2018. https://thediplomat.com/2018/08/compounding-trauma-indonesias-abortion-law/.
Mazza, Danielle. “Reimagining Medical Abortion in Australia: What Do We Need to Do to Meet Women’s Needs and Ensure Ongoing Access?” Medical Journal of Australia 218, no. 11 (June 19, 2023): 496–98. https://doi.org/10.5694/mja2.51979.
Moore, Ann M., Jesse Philbin, Iwan Ariawan, Meiwita Budiharsana, Rachel Murro, Riznawaty Imma Aryanty, and Akinrinola Bankole. “Online Abortion Drug Sales in Indonesia: A Quality of Care Assessment.” Studies in Family Planning 51, no. 4 (December 2020): 295–308. https://doi.org/10.1111/sifp.12138.
Moore, Brittany, Cheri Poss, Ernestina Coast, Samantha R. Lattof, and Yana Van Der Meulen Rodgers. “The Economics of Abortion and Its Links with Stigma: A Secondary Analysis from a Scoping Review on the Economics of Abortion.” Edited by M. Harvey Brenner. PLOS ONE 16, no. 2 (February 18, 2021): e0246238. https://doi.org/10.1371/journal.pone.0246238.
MSI Australia. “MSI Australia Congratulates Western Australia on Historic Abortion Law Reforms.” MSI Australia, September 21, 2023. https://www.msiaustralia.org.au/wa-historic-abortion-law-reform/.
———. “TGA Decision Improving Access to Abortion Care for All Australians Welcomed.” MSI Australia, July 11, 2023. https://www.msiaustralia.org.au/tga-decision-improving-access-to-abortion-care-for-all-australians-welcomed/.
Regulation of the Minister of Health of the Republic of Indonesia No. 3 of 2016, Pub. L. No. No. 3 of 2016 (n.d.).
Safe Abortion Action Fund. “Indonesia’s New Criminal Code Strengthens Abortion Provisions but Threatens Demoncracy and Human Rights.” Safe Abortion Action Fund, December 9, 2022. https://saafund.org/indonesias-new-criminal-code-abortion/.
Saraswati, Putri Widi. “Saving More Lives on Time: Strategic Policy Implementation and Financial Inclusion for Safe Abortion in Indonesia during COVID-19 and Beyond.” Frontiers in Global Women’s Health 3 (September 6, 2022): 901842. https://doi.org/10.3389/fgwh.2022.901842.
Sifris, Ronli. “Abortion in Australia: Law, Policy, and the Advancement of Reproductive Rights.” In Research Handbook on International Abortion Law, edited by Mary Ziegler, 124–40. Edward Elgar Publishing, 2023. https://doi.org/10.4337/9781839108150.00015.
Sifris, Ronli, and Tania Penovic. “Barriers to Abortion Access in Australia before and during the COVID-19 Pandemic.” Women’s Studies International Forum 86 (May 2021): 102470. https://doi.org/10.1016/j.wsif.2021.102470.
The Royal Australian and New Zealand College of Obstetricians and Gynaecologists. “Senate Inquiry into Abortion Access.” RANZCOG, September 29, 2022. https://ranzcog.edu.au/news/senate-inquiry-into-abortion-access/.
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———. “Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health.” General Assembly Sixty-first session. United Nations, September 13, 2006. https://ap.ohchr.org/documents/dpage_e.aspx?si=A/61/338.
Vallury, Kari Dee, Daile Kelleher, Ahmad Syahir Mohd Soffi, Carolyn Mogharbel, and Shelly Makleff. “Systemic Delays to Abortion Access Undermine the Health and Rights of Abortion Seekers across Australia.” Australian and New Zealand Journal of Obstetrics and Gynaecology 63, no. 4 (August 2023): 612–15. https://doi.org/10.1111/ajo.13716.
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———. “Chapter 1. Introduction. Human Rights Including a Supportive Framework of Law and Policy (1.3.1).” Online Book. Abortion Care Guideline, 2023. https://srhr.org/abortioncare/chapter-1/human-rights-including-a-supportive-framework-of-law-and-policy/.
Zhang, Angela. “Abortion Rights and Access in Australia: Implications of Roe v Wade.” Australian Human Rights Institute, 2022. https://www.humanrights.unsw.edu.au/students/blogs/abortion-rights-access-australia-roe-v-wade.
[1] Australian Government, “Development Partnership with Indonesia,” Australian Embassy Indonesia, 2023, https://indonesia.embassy.gov.au/jakt/cooperation.html.
[2] Australian Government.
[3] World Health Organization, “Abortion,” World Health Organization, 2024, https://www.who.int/health-topics/abortion#tab=tab_1.
[4] World Health Organization, “Chapter 1. Introduction. Human Rights Including a Supportive Framework of Law and Policy (1.3.1),” Online Book, Abortion Care Guideline, 2023, 1, https://srhr.org/abortioncare/chapter-1/human-rights-including-a-supportive-framework-of-law-and-policy/.
[5] United Nation Office of the High Commissioner, “Sexual and Reproductive Health and Rights,” United Nations Human Rights Office of the High Commissioner, n.d., https://www.ohchr.org/en/women/sexual-and-reproductive-health-and-rights.
[6] United Nation Office of the High Commissioner; World Health Organization, “Chapter 1. Introduction. Human Rights Including a Supportive Framework of Law and Policy (1.3.1).”
[7] Putri Widi Saraswati, “Saving More Lives on Time: Strategic Policy Implementation and Financial Inclusion for Safe Abortion in Indonesia during COVID-19 and Beyond,” Frontiers in Global Women’s Health 3 (September 6, 2022): 901842, https://doi.org/10.3389/fgwh.2022.901842.
[8] World Health Organization, “Chapter 1. Introduction. Human Rights Including a Supportive Framework of Law and Policy (1.3.1).”
[9] World Health Organization.
[10] World Health Organization.
[11] World Health Organization.
[12] World Health Organization.
[13] United Nations, “Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health,” General Assembly Sixty-first session (United Nations, September 13, 2006), https://ap.ohchr.org/documents/dpage_e.aspx?si=A/61/338.
[14] World Health Organization, “Chapter 1. Introduction. Human Rights Including a Supportive Framework of Law and Policy (1.3.1).”
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[16] Carter et al.
[17] Barbara Baird, “Decriminalization and Women’s Access to Abortion in Australia,” Health and Human Rights Journal 19 (June 2017): 197–208.
[18] Baird.
[19] The Royal Australian and New Zealand College of Obstetricians and Gynaecologists, “Senate Inquiry into Abortion Access,” RANZCOG, September 29, 2022, https://ranzcog.edu.au/news/senate-inquiry-into-abortion-access/.
[20] Family Planning NSW, “Sexual and Reproductive Health and Rights and the Sustainable Development Goals: Priorities for Australia and the Pacific 2020” (328–336 Liverpool Road, Ashfield NSW 2131 Australia: Family Planning NSW, 2020).
[21] Ronli Sifris and Tania Penovic, “Barriers to Abortion Access in Australia before and during the COVID-19 Pandemic,” Women’s Studies International Forum 86 (May 2021): 102470, https://doi.org/10.1016/j.wsif.2021.102470.
[22] Community Affairs References Committee, “Ending the Postcode Lottery: Addressing Barriers to Sexual, Maternity and Reproductive Healthcare in Australia,” Senate Inquiry (Canberra: Commonwealth of Australia, 2023).
[23] Puput Kusumawardani Moehas, Darunee Phukao, and Pimpawun Boonmongkon, “Seeking Experience Abortion Services: A Study of Unmarried Young Indonesian Women,” St Theresa Journal of Humanities and Social Sciences 5, no. 2 (2019), https://journal.stic.ac.th/index.php/sjhs/article/view/128.
[24] Zahri Aeniwati and Sri Kusriyah, “Criminal Responsibility towards Criminals of Abortion in Indonesia,” Law Development Journal 3, no. 1 (March 7, 2021): 9, https://doi.org/10.30659/ldj.3.1.9-18.
[25] Aeniwati and Kusriyah.
[26] Nur Ras Firzaa, “A Comparative Legal Studies of Abortion in Indonesia, Malaysia and England,” Indonesian Comparative Law Review 2, no. 1 (2019): 28–38, http://dx.doi.org/10.18196/iclr.2114.
[27] Firzaa.
[28] Firzaa.
[29] Casey Haining et al., “Abortion Law in Australia: Conscientious Objection and Implications for Access,” Monash University Law Review 48, no. 2 (2022): 238–71.
[30] Sifris and Penovic, “Barriers to Abortion Access in Australia before and during the COVID-19 Pandemic.”
[31] Ronli Sifris, “Abortion in Australia: Law, Policy, and the Advancement of Reproductive Rights,” in Research Handbook on International Abortion Law, ed. Mary Ziegler (Edward Elgar Publishing, 2023), 124–40, https://doi.org/10.4337/9781839108150.00015.
[32] Brittany Moore et al., “The Economics of Abortion and Its Links with Stigma: A Secondary Analysis from a Scoping Review on the Economics of Abortion,” ed. M. Harvey Brenner, PLOS ONE 16, no. 2 (February 18, 2021): e0246238, https://doi.org/10.1371/journal.pone.0246238.
[33] Moore et al.
[34] Moore et al.
[35] Angela Zhang, “Abortion Rights and Access in Australia: Implications of Roe v Wade,” Australian Human Rights Institute, 2022, https://www.humanrights.unsw.edu.au/students/blogs/abortion-rights-access-australia-roe-v-wade.
[36] Kari Dee Vallury et al., “Systemic Delays to Abortion Access Undermine the Health and Rights of Abortion Seekers across Australia,” Australian and New Zealand Journal of Obstetrics and Gynaecology 63, no. 4 (August 2023): 612–15, https://doi.org/10.1111/ajo.13716.
[37] Vallury et al.
[38] Sifris, “Abortion in Australia: Law, Policy, and the Advancement of Reproductive Rights.”
[39] Danielle Mazza, “Reimagining Medical Abortion in Australia: What Do We Need to Do to Meet Women’s Needs and Ensure Ongoing Access?,” Medical Journal of Australia 218, no. 11 (June 19, 2023): 496–98, https://doi.org/10.5694/mja2.51979; Sifris, “Abortion in Australia: Law, Policy, and the Advancement of Reproductive Rights.”
[40] International Commission of Jurists, “Indonesia: New Penal Code Is a Major Human Rights Setback and Must Be Repealed or Substantially Amended,” International Commission of Jurists, September 12, 2022, https://www.icj.org/indonesia-new-penal-code-is-a-major-human-rights-setback-and-must-be-repealed-or-substantially-amended/.
[41] Linda Rae Bennett, “Single Women’s Experiences of Premarital Pregnancy and Induced Abortion in Lombok, Eastern Indonesia,” Reproductive Health Matters 9, no. 17 (January 2001): 37–43, https://doi.org/10.1016/S0968-8080(01)90006-0.
[42] Bennett.
[43] Sifris, “Abortion in Australia: Law, Policy, and the Advancement of Reproductive Rights.”
[44] Moore et al., “The Economics of Abortion and Its Links with Stigma.”
[45] Community Affairs References Committee, “Ending the Postcode Lottery: Addressing Barriers to Sexual, Maternity and Reproductive Healthcare in Australia.”
[46] Sifris, “Abortion in Australia: Law, Policy, and the Advancement of Reproductive Rights.”
[47] Sifris and Penovic, “Barriers to Abortion Access in Australia before and during the COVID-19 Pandemic.”
[48] Zhang, “Abortion Rights and Access in Australia: Implications of Roe v Wade.”
[49] Sifris and Penovic, “Barriers to Abortion Access in Australia before and during the COVID-19 Pandemic.”
[50] Sifris and Penovic.
[51] Vallury et al., “Systemic Delays to Abortion Access Undermine the Health and Rights of Abortion Seekers across Australia.”
[52] Saraswati, “Saving More Lives on Time.”
[53] Aisyah Llewellyn, “Compounding Trauma: Indonesia’s Abortion Law,” The Diplomat, August 14, 2018, https://thediplomat.com/2018/08/compounding-trauma-indonesias-abortion-law/.
[54] Saraswati, “Saving More Lives on Time”; Giorgio et al., “Estimating the Incidence of Induced Abortion in Java, Indonesia, 2018,” International Perspectives on Sexual and Reproductive Health 46 (2020): 211, https://doi.org/10.1363/46e0220.
[55] Luh De Suriyani, “Indonesia’s Restrictive Laws, Religious Taboos Lead Women to Unsafe Abortions,” Benar News, May 22, 2023, https://www.benarnews.org/english/news/indonesian/abortions-taboo-unsafe-05222023135943.html.
[56] Giorgio et al., “Estimating the Incidence of Induced Abortion in Java, Indonesia, 2018.”
[57] Llewellyn, “Compounding Trauma: Indonesia’s Abortion Law.”
[58] Ann M. Moore et al., “Online Abortion Drug Sales in Indonesia: A Quality of Care Assessment,” Studies in Family Planning 51, no. 4 (December 2020): 295–308, https://doi.org/10.1111/sifp.12138.
[59] “Regulation of the Minister of Health of the Republic of Indonesia No. 3 of 2016,” Pub. L. No. No. 3 of 2016 (n.d.).
[60] Sifris and Penovic, “Barriers to Abortion Access in Australia before and during the COVID-19 Pandemic.”
[61] Zhang, “Abortion Rights and Access in Australia: Implications of Roe v Wade”; Sifris, “Abortion in Australia: Law, Policy, and the Advancement of Reproductive Rights.”
[62] Family Planning NSW, “Sexual and Reproductive Health and Rights and the Sustainable Development Goals: Priorities for Australia and the Pacific 2020.”
[63] Family Planning NSW.
[64] Moore et al., “The Economics of Abortion and Its Links with Stigma.”
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[66] Moore et al.
[67] Moore et al.
[68] Moore et al.
[69] Llewellyn, “Compounding Trauma: Indonesia’s Abortion Law.”
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[72] Amnesty International, “Left Without a Choice: Barriers to Reproductive Health in Indonesia” (1 Easton Street London, United Kingdom: Amnesty International Publications, 2010).
[73] Sifris, “Abortion in Australia: Law, Policy, and the Advancement of Reproductive Rights.”
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[75] Sifris and Penovic, “Barriers to Abortion Access in Australia before and during the COVID-19 Pandemic.”
[76] Sifris, “Abortion in Australia: Law, Policy, and the Advancement of Reproductive Rights.”
[77] Sifris and Penovic, “Barriers to Abortion Access in Australia before and during the COVID-19 Pandemic.”
[78] Amnesty International, “Left Without a Choice: Barriers to Reproductive Health in Indonesia.”
[79] Amnesty International.
[80] Institute for Policy Research and Advocacy (Elsam), “Country Case-Study: Sexual and Reproductive Rights in Indonesia,” Privacy International, February 6, 2020, https://privacyinternational.org/long-read/3853/country-case-study-sexual-and-reproductive-rights-indonesia.
[81] Institute for Policy Research and Advocacy (Elsam).
[82] Vallury et al., “Systemic Delays to Abortion Access Undermine the Health and Rights of Abortion Seekers across Australia.”
[83] United Nations, “Mandates of the Working Group on Discrimination against Women and Girls; the Special Rapporteur in the Field of Cultural Rights; the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health; the Special Rapporteur on Freedom of Religion or Belief; the Independent Expert on Protection against Violence and Discrimination Based on Sexual Orientation and Gender Identity and the Special Rapporteur on Violence against Women and Girls, Its Causes and Consequences,” November 25, 2022, https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=27706.
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[89] Baird.
[90] Baird.
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[92] MSI Australia, “TGA Decision Improving Access to Abortion Care for All Australians Welcomed,” MSI Australia, July 11, 2023, https://www.msiaustralia.org.au/tga-decision-improving-access-to-abortion-care-for-all-australians-welcomed/.
[93] Safe Abortion Action Fund, “Indonesia’s New Criminal Code Strengthens Abortion Provisions but Threatens Demoncracy and Human Rights,” Safe Abortion Action Fund, December 9, 2022, https://saafund.org/indonesias-new-criminal-code-abortion/.
[94] Law No 17 of 2023
[95] Heny Widyaningrum, Interveiw on Indonesian Perspective on Safe Abortion as a SRHR with Perkumpulan Keluarga Berencana Indonesia national coordinator for the national SRHR program, In person, January 29, 2024.
[96] Human Rights Watch, “Indonesia: New Criminal Code Disastrous for Rights: Provisions Harmful to Women, Minorities, Free Speech,” Human Rights Watch, December 8, 2022, https://www.hrw.org/news/2022/12/08/indonesia-new-criminal-code-disastrous-rights.
[97] Human Rights Watch.
[98] Heny Widyaningrum, Interveiw on Indonesian Perspective on Safe Abortion as a SRHR with Perkumpulan Keluarga Berencana Indonesia national coordinator for the national SRHR program.
[99] Disability & Philanthropy Forum, “A Victory for Reproductive Rights for Indonesian Women and Girls with Disabilities,” Disability & Philanthropy Forum, 2024, https://disabilityphilanthropy.org/resource/a-victory-for-reproductive-rights-for-indonesian-women-and-girls-with-disabilities/.
[100] Disability & Philanthropy Forum.
[101] MSI Australia, “TGA Decision Improving Access to Abortion Care for All Australians Welcomed.”
[102] Baird, “Decriminalization and Women’s Access to Abortion in Australia.”
[103] Safe Abortion Action Fund, “Indonesia’s New Criminal Code Strengthens Abortion Provisions but Threatens Demoncracy and Human Rights.”
[104] MSI Australia, “MSI Australia Congratulates Western Australia on Historic Abortion Law Reforms,” MSI Australia, September 21, 2023, https://www.msiaustralia.org.au/wa-historic-abortion-law-reform/.
[105] De Suriyani, “Indonesia’s Restrictive Laws, Religious Taboos Lead Women to Unsafe Abortions.”
[106]Vincent Bevins, “Indonesia’s Democracy Is Becoming More Conservative,” April 17, 2019, https://www.theatlantic.com/international/archive/2019/04/indonesia-democracy-elections-conservative/587341/; Malcolm Farnsworth, “Liberal Democracy,” AustralianPolitics.com, 2024.
