Research design

My dissertation utilised three sites to underpin a broader methodology to analyse the various power relations that constitute gatekeeping in contemporary Australia. Site 1 focused on the law and its origins, Site 2 examined the education of medical professionals regarding abortion law, and Site 3 explored the responses of practicing doctors to abortion scenarios. The research design combined these three sites to understand the various social spaces and institutions that might

contribute to the shaping of a gatekeeping role for medical practitioners. The broader methodology examined the interrelatedness of the various sites, using discourse analysis to understand whether the characterisation of gatekeeping is translated to the reality of the operation of gatekeeping in everyday medical practice. Data collection occurred between March 2013 and concluded in April of 2015.

Discourse analysis was chosen as an appropriate method because it is “primarily a qualitative method of ‘reading’ texts, conversations and documents which explores the connections between language, communication, knowledge, power and social practices” (Munci in Jupp 2006, 74). My approach utilised discourse analysis to explore the linkages between the various sites of investigation. This provided an opportunity to establish an overarching picture of gatekeeping, from the expectation of gatekeeping compared to the operation of gatekeeping. It helped link my three chosen sites.

The research design was executed iteratively, informed by Foucault’s approach to studying power, in particular how power relations shape the subject rather than studying what power is, or identifying who holds power in any given situation. As Foucault suggests (1982, 780), to analyse power relations one must examine it through the lens of an antagonism of strategies, rather than assuming that power exists, analysed from the point of view of its internal rationality. So while the empirical sub-questions identified in Chapter 2 informed the overall research design from the outset, the process of developing the operationalised questions was iterative so as to explore power from the perspective of various strategies, rather than assuming that power identified in one site would automatically demonstrate the same characteristics of power in the subsequent sites. Therefore the findings from Site 1 helped to inform the analysis of the findings from Site 2, and the analysis of the findings from Site 2 informed the analysis of Site 3. The following discussion describes the focus of each site and the deployment of this iterative approach.

Site 1

The legal frameworks for abortion in Australia and the discussion that gave rise to their existence were the central focus of Site 1. The central theme for this site was derived from the literature explored in Chapter 2 concerning the evolution of abortion law (see Keown 1988, Reagan 1998, and Sheldon 1997), specifically how the medical profession came to hold legitimacy in the abortion context and thus hold a legitimate gatekeeping role. Site 1 sought to establish how doctors had come to hold a specified legal role for abortion in Australia, despite abortion being a complex social, moral and political issue, not just a medical procedure to terminate a pregnancy (see Dworkin 1994, Hadley 1996, Luker 1984, Palmer 2009, Baird 1990, and Haigh 2008). The empirical questions investigated in Site 1 were: How did the medical profession become the legal authority for abortion? What is the legal framework for abortion? What is the scope of authority for medical professionals over abortion and in what sense is the role regulatory?

What I was seeking to explore in Site 1 was the process of justification for the role of gatekeeping, examining both the intent of the role and the structure of the role established by the law. This formed the basis for understanding the scope of power ascribed to the medical profession, which could then be utilised to examine how doctors are shaped to exercise decision-making regarding women’s abortion choices. Historical treatise, legislation, case law, parliamentary documents and Hansard transcripts formed the basis of the research. Historical works were initially gathered from the 1800s through to the early 1900s in the form of historical treatises on the evolution of abortion law. This material was important for illuminating the origins of medical involvement in Australian abortion law. All other material (legislation, case law, parliamentary documents and Hansard transcripts) was gathered for the time period of 1968 until 2015, with 1968 being the year that the first legislative changes to abortion law were debated in Australia, while 2015 was the notional end of my research fieldwork. Material was also gathered in 2016 and 2017 when legislative changes were presented in three Australian jurisdictions, New South Wales, Queensland and the Northern Territory. This material is examined in Chapter 8 in the context of future research.

The information gathered in Site 1 was designed to understand the legal framework of gatekeeping for abortion, which involved not only the law as it was written but documents that explained how the law had come into existence. In other words how power was brought into action through the establishment of particular legal frameworks. For the period prior to the 1960s in Australia, historical treatise formed the basis of my analysis given that the law had not been changed since the inception criminal law in the 1800s and its origins were likely to provide an understanding of the influence of the medical profession on abortion in criminal law. Post 1960, I took the legislative process as being the mechanism for examining this history, as the legislature has a fundamental role in debating the merits of proposed changes before a law can be enacted. In Australia the most appropriate place to find the origins of law was through parliamentary reports and Hansard transcripts.

The use of historical treatise, Hansard material and parliamentary reports addressed my sub question, how did the medical profession become the legal authority for abortion? The research was focused on examining how the medical profession came to be an authoritative figure for abortion law. Using historical material, material from the legislature itself in the form of parliamentary debate (published as Hansard transcripts), and multiple versions of proposed legislations that were amended during passage through parliament also provided an opportunity to explore the role of the medical profession in making changes to the legislation. It provided an opportunity for examining power-in-action, drawing on Foucault’s approach to how we understand power more broadly. The examination of this first sub-question sought to explore the extent to which the medical profession was involved in shaping abortion as a medical issue, and hence the extent to which the use of medical knowledge regarding abortion is privileged over the knowledge that women hold regarding their reproductive choices. This provided the basis for analysing the likely consequences of the medicalisation of abortion, which was defined as being problematic in Chapter 2 because of the scientific and personal dimensions of decision-making by doctors described by Freidson (1988), and also evident in the work of Wainer (1972), Haigh (2008) and Joffe (1995).

The historical material was derived from key historical texts on abortion law and the medical profession, in particular John Keown’s (1988) Abortion, Doctors and the law: Some aspects of the legal regulation of abortion in England from 1803 to 1982. This text was chosen in particular because of its focus on the United Kingdom, noting that Australian law originated in the United Kingdom, and its use in other abortion related works as a key authority for the history of abortion law (see Grubb 1990, Thomson 2013, and Drabsch 2005). Hansard material was derived from websites of the state and territory parliaments across Australia, with the exception of South Australia. The material for South Australia was drawn from the official record of the minutes of the Select Committee of the House of Assembly on the Criminal Law Consolidation Act Amendment Bill, 1968. I was not able to obtain the Hansard transcripts for South Australia when this report was debated, and so the use of the South Australian Committee’s report is limited to the sentiments of different groups, not the overall sentiments of the South Australian parliament.

Two keyword searches were used to find parliamentary material that was relevant to abortion law reform, “abortion” and “termination of pregnancy”. Where this yielded limited results, I browsed the various databases starting with the date of legislative change, working backwards until I was able to find parliamentary debate relating to abortion. Material was gathered for the jurisdictions of the Australian Capital Territory, South Australia, the Northern Territory, Western Australia, Victoria and Tasmania, as these were the only jurisdictions where legislative change had occurred prior to 2015. There was no material for New South Wales and Queensland because no legislative reform had taken place in these jurisdictions, and hence no change to the specific legislation regarding abortion.

It should be noted that while legislative debate was obtainable for these five jurisdictions, the Northern Territory’s 1974 legislative change was not obtainable and is therefore not included. However, it is unlikely that the Northern Territory changes of 1974 would have had a substantial impact on the findings because these changes brought the legislation in line with the changes made in South Australia (see Rankin 2001, 244). This was not surprising given that the Northern

Territory was governed by South Australia until the 1940s, when it was given the administrative power to make its own laws (see Legislative Assembly of the Northern Territory, 2015). The fact that the debate was missing from the analysis was not, therefore, considered to be of material impact to the broad nature of the findings.

The transcripts were analysed using two operationalising questions: Did the medical profession have any involvement in defining abortion as a crime? What debate occurred in the legislature when abortion law was changed and did this debate legitimate the role of ‘gatekeeping’? To analyse the material I looked for any reference to ‘doctors’ or the medical profession, and any indication of where doctors had made appeals to parliamentarians, highlighted these terms and then examined the subsequent passages of discussion around these key words. What I was looking for in the Hansard transcripts was any reference to the medical profession being an authority for abortion regulation, and the types of justifications that would have been made to allow for this, if it proved to be apparent in the transcripts. Such an approach leveraged Foucault’s theories of power, seeking to understand how the medical profession might have deployed power to achieve certain actions. This would help in my search for answers to the questions that arose in Chapter 2; specifically how the medical profession had come to hold status in regulating abortion in Australia despite abortion being considered to have both scientific and social dimensions (see Rhoden 1986, Keown 1988 and Reagan 1998). As Keown (1988) and Reagan’s (1998) work suggested in the previous chapter, the purpose of regulating abortion lies beyond the technical act of terminating a pregnancy, and thus problematises the power held by various social actors.

The second issue relating to Site 1, specifically abortion law and the precursor legislation to abortion law, sought to examine the legal power that is held by the medical profession. It considered the legal frameworks for abortion in Australia from 1968 until 2015. Each jurisdiction was examined separately because the performance of abortion in Australia is governed according to state and territory legislation. The legal frameworks for abortion, the precursor legislation, and case law addressed two empirical questions that emerged from Chapter 2: What is the

legal framework for abortion? What is the scope of authority for medical professionals over abortion and in what sense is the role regulatory? These questions framed the contextual part of the research project and established the basis for highlighting the scope of medical power over abortion.

Legal material was found in the legislative databases of each Australian jurisdiction located on the attorney-general’s website of a particular jurisdiction or the parliamentary library of a given state or territory for legislative data. The material was found in criminal law and/or health law. Again, I used the keywords “abortion” and “termination of pregnancy” when searching each website to elicit the material, as abortion was the term used in the United Kingdom’s statutes of 1861 upon which Australian law is based, and termination of pregnancy is the medical term used to describe the act of aborting a fetus. Through this approach I was able to obtain some indication of where the legal framework for abortion currently resided, which I then used as the basis for creating a more holistic picture of the evolution of abortion law. This was possible because of the way that law is presented in Australia, specifically the way in which legal documents and/or legal databases contain references to the laws that have preceded them.

Abortion law in each state and territory was analysed using three operationalising questions: Is abortion governed by criminal law or health law? Are there specified legal criteria for lawfulness and what role do doctors have for establishing if the criteria have been met? How does the law describe the role of the doctor? Current and historical legislation was recorded in an excel spreadsheet, and the sections were listed against each of the components outlined in the operationalising questions. Each of these questions explored the scope of expected conduct for a doctor that is implied by a characterisation of gatekeeping under each particular legal framework for abortion, and this provided a basis for a comparison of the various frameworks. The operational questions also meant that I had a mechanism for grouping the jurisdictions according to the characteristics of 'criminal', 'decriminalised', and 'hybrid', which also meant that I had a way of comparing the findings of the various sites according to the law that operated in each state and territory. This was important because I was seeking to examine the various ways that power relations are established, exploring how power is ascribed to doctors,

how it shapes the way that doctors conceptualise regulation, and then how power is transmitted through them, rather then seeking to demonstrate how power is used. My purpose necessitated a comparative framework across the three sites. Through building Site 1, what I was seeking to explore was how the law might constitute a strategy for shaping power, rather than pursuing an approach that assumed the medical profession held absolute power. In this sense, I was examining the position of doctors vis-à-vis women seeking abortions, establishing whether or not the role of gatekeeping gave doctors power over women’s abortion choices, or whether it might also define power over the decisions of doctors in relation to women. Answers to these questions thus provided a way of examining whether the power ascribed to the medical profession as gatekeepers went beyond the scope of medicine, thus defining a role for doctors in regulating a social, political and moral issue.

The analysis of both current legislation and the debate that gave rise to it in the legislature in Site 1 was important for understanding the constitution of gatekeeping for abortion because it provided the foundation for examining the scope of legal authority given to the medical profession. Once I had built this basis I could then establish Sites 2 and 3 to explore how this authority might shape and define the views and actions of doctors when confronted with an abortion request. Thus, an understanding of the authority, and the legitimacy of the authority, became the foundation for examining the material gathered in Sites 2 and 3, exploring how an expectation of regulation might compare to the practice of abortion regulation.

Site 2

Site 2 was concerned with exploring the education of medical professionals regarding abortion law, and sought information from tertiary institutions. The purpose of this material was to understand how medical professionals were taught about abortion. I sought to examine whether this teaching reflected the legal frameworks for abortion and whether it contributed to the shaping of a gatekeeper. The sub question that framed the exploration of material at Site 2 also emerged from the literature in Chapter 2, established as an empirical question:

how does the education of the medical profession address abortion and the legal role of the doctor?

Site 2 drew on the focus of Site 1 by asking how a doctor is educated to enact abortion decisions as required under the appropriate legislation. This approach was subsequently taken because my findings from Site 1 revealed that common law understandings of lawfulness for an abortion procedure and certain legislative approaches required that a medical professional, or in some cases two doctors, could perform an abortion where there was a genuine belief/evidence that there was a psychological or physical risk to the mother’s health (see Rankin 2001, 231- 235 & Rankin 2011). I sought to explore what constituted a psychological or physical risk and to understand how medical students were taught to exercise judgement in determining risk when making decisions regarding a woman’s request for an abortion. In the context of trying to understand the constitution of the role of gatekeeping, Site 2 provided a way of understanding how legal power is operationalised by the medical profession, revealing how the power given to the medical profession shapes doctors and thus defines a particular type of conduct. Site 2 was, therefore, a means to examine the nature of power in the abortion context, examining how the medical profession translates power rather than assuming that legal power equates to a particular type of action by doctors.

Site 2 used both course materials concerning abortion and interviews with teaching staff. Information was sought through formal engagement with tertiary institutions to outline where abortion was taught in the curriculum, and the content of that teaching. The operationalised questions were derived from my broad concern addressed in Chapter 2 (how does the education of the medical profession address abortion and the legal role of the doctor?) and focused on: the time during a medical student's study when abortion emerged as a topic for discussion; whether or not abortion was a course of its own merit or part of a broader subject area; whether or not students were taught about the law and the key aspects of that teaching; whether students were taught how to apply the law; and whether medical educators believed that the education was sufficient to enable a doctor to practice lawfully (see Annex F). I also wanted to understand the context of abortion teaching and its relative importance within medical curricula. I

considered this to be a necessary aspect of my questions because it would reveal the quantum of teaching that students were exposed to. It would also overcome a potential limitation of the research. This limitation was that a focus on abortion