Abortion in Australia

Abortion in Australia is largely regulated by the states and territories, rather than the Federal Government, which vary by jurisdiction. Surgical abortions are generally available around Australia on request within the early term of pregnancy, though this period varies slightly between jurisdictions. After that period, in every jurisdiction, abortions are legal to protect the life and health of the pregnant woman. Anti-abortion activism exists in Australia, and all jurisdictions, except Western Australia, have laws prohibiting anti-abortion campaigners from harassing visitors and staff of abortion clinics by setting protest exclusion zones around abortion clinics.

Nowhere in Australia is there a requirement that a woman's sexual partner be notified that a woman is pregnant or is proposing to have an abortion, or to consent to the procedure. Australian courts will not grant an injunction to restrain a pregnant woman from terminating her pregnancy, even if the applicant is the putative father of the fetus.[1] There is also no waiting period for an abortion. A minor does not need to notify a parent of a proposed abortion nor is parental consent required, except in Western Australia.

All states and territories have fully decriminalised abortion, except South Australia which as of October 2020 has a bill pending. Only one medical practitioner has been prosecuted for performing abortions in decades. This prosecution took place in 1998 in Western Australia, that soon led to the explicit legalisation of on-request abortions under certain circumstances in that state. The procedure is partially funded under Medicare, the federal government-funded public health scheme, or by private healthcare insurers. Abortions and abortion advice are exempt from the GST tax as a health or medical service.

The Therapeutic Goods Administration (TGA) must approve all drugs or medications used in Australia, and can otherwise regulate such substances, including abortifacients. Mifepristone, an abortifacient, also known as RU-486, for example, was banned in Australia until February 2006 and only registered by the TGA in 2012, and currently is subject to special conditions and restrictions. In the case of “a child capable of being born alive” (usually taken to mean after 28 weeks of pregnancy), a termination may be subject to a separate crime of child destruction in some states and territories.

History

Since colonisation, abortion in Australia has always been regulated by state (previously colonial) law. Before the end of the 19th century, each colony had adopted the Imperial Offences Against the Person Act 1861, which in turn was derived from English laws from 1837, 1828 and 1803, which made abortion illegal under any circumstance. Since then, abortion law has continued to evolve in each State by case law and changes in legislation.

A legal precedent concerning the legality of abortion was set in Australia in 1969, by the Menhennitt ruling in the Victorian Supreme Court case R v Davidson,[2] which held that abortion was lawfully justified if "necessary to preserve the physical or mental health of the woman concerned, provided that the danger involved in the abortion did not outweigh the danger which the abortion was designed to prevent." The ruling was later largely adopted by courts in New South Wales,[3] and Queensland,[4] and was influential in some other states. Over time this has come to be broadly defined so as to include the mental health of the woman, to which unwanted pregnancy is interpreted as clinically injurious.

In the mid-1990s the conservative Howard government was in power in Australia, with conservative independent Tasmanian Senator Brian Harradine holding the balance of power in the Senate. Howard brokered a deal with Harradine to ensure his support for proposed bills, including the privatisation of national telecommunications provider Telecom. In return, Harradine received support for introducing restrictions on abortion.[5] As a result, unlike other medications, abortifacient drugs were made to require approval from the Minister for Health before they could be assessed by the Therapeutic Goods Administration (TGA). As TGA assessment is a requirement for drugs to be sold in Australia, this created a ministerial veto.[6] Accordingly, the abortifacient RU-486, which was widely used overseas, was banned in Australia.[7] The continued refusal by Tony Abbott, then Minister for Health, to allow abortifacients into Australia led to a private member's bill being introduced in late 2005 to transfer the approval back to the TGA. The bill was made law in 2006.[8][9] From 2006 to 2012, the drug was still not registered by the TGA, and medical practitioners needed special status from the TGA in order to prescribe it;[10] even after registration its use still has special conditions and restrictions.[10] There is opinion among medical experts in Australia that abortifacients are over-regulated.[11]

In 2006, after losing his veto power over abortifacients, Tony Abbott lobbied for funding of alternative counseling to pregnant women through church-affiliated groups to lower the national abortion rate,[12] without success. In 2010, however, while he was seeking election as Liberal Party leader, Abbott pledged not to make any changes to abortion laws.[13]

In 2017, Senator Cory Bernardi moved a motion to ban sex-selective abortion. The motion was voted down (10–36).[14][15] There is no evidence that sex-selective abortions are common in Australia, though according to the Human Rights Law Centre, attempting to create bans on the procedure is a "well-known tactic of opponents of abortion to limit women’s access to abortion".[16]

Before the 2019 federal election, the Australian Labor Party unveiled a national abortion policy for the 2019 Australian federal election.[17] The party's policy included requiring public hospitals to offer abortion procedures consistently under new Commonwealth funding agreements, encouraging New South Wales to remove abortion from its criminal laws and building an abortion clinic in Tasmania.[17][18] In response Liberal Party leader Scott Morrison stated the issue was controversial and sensitive and decisions should be left to the states. His Coalition colleagues were largely quiet on the matter,[19] while anti-abortion groups including the Australian Christian Lobby and Cherish Life campaigned against Labor on the issue.[20] Cherish Life incorrectly claimed that Labor had an "extreme late-term abortion agenda", and that "more babies would die" if they were elected.[21] Labor MP Ed Husic, who retained his seat at the election, said the misrepresentation of the party's abortion policy was a factor in his decrease in votes.[22]

Anti-abortion violence and protests

Abortion-related violence is rare in Australia. The first serious attack and murder by an anti-abortion activist occurred in 2001, carried out by Peter Knight. Knight forced his way into a Melbourne clinic carrying a rifle, kerosene, and equipment to lock the doors of the clinic. He was intending to murder all patients and staff in the building, though was overpowered after shooting and killing a security guard. Anti-abortion activists had been protesting outside the clinic, though left 15 minutes before Knight's attack. Knight, described by the prosecution as a "hermit obsessed with killing abortion doctors" was convicted of murder and sentenced to life imprisonment.[23][24] In January 2009, a firebombing using Molotov cocktails was attempted at a medical clinic in Mosman Park, Western Australia. Damage was minimal and only resulted in smashed windows and blackened external walls. Police believed graffiti saying "baby killers" on the building was related to the attack, however, the medical clinic did not actually offer abortion services.[25][26]

Since at least the 1990s, tactics used by anti-abortion campaigners outside abortion clinics included "verbal abuse, threats, impeding entry to clinics, displaying violent imagery and acts of 'disturbing theater' such as pushing a blood-splattered doll in a pram."[27] In response, states and territories began creating "safe access zones", which prevent protesting about abortion within a proscribed area surrounding a clinic.[27] Tasmania was the first state to do so in 2013;[28] as of November 2020, only Western Australia did not have such laws, though the state did have a bill pending to introduce them.[29] In April 2019, the High Court of Australia upheld these laws after they were challenged by two people arrested for violating them. The petitioners claimed their right to freedom of political communication had been denied as a result of the laws, though the court dismissed the appeals, saying the laws served a legitimate purpose.[30]

Abortion laws

Federal involvement

Abortions are partially funded under Medicare, the federal government-funded public health scheme, or by private healthcare insurers, which are also regulated by the federal government. The federal government also provides funding to public hospitals and can thereby influence abortion policy and practice. Abortions and abortion advice are regarded as health services and are exempt from the Goods and Services Tax (GST).

Summary of state laws
State or territoryStatusDetails
Australian Capital Territory Legal and accessible (no gestational limit)Must be provided by medical doctor. Health Minister may set 50m exclusion zones for protests.[31]
New South Wales and Norfolk Island Legal. Accessible up to 22 weeks. Legal upon request up to 22 weeks and with the approval of two doctors thereafter. The law went into effect on 2 October 2019.[32] Safe access zones are set at 150m around abortion clinics since 1 July 2018.[33][34]
Northern Territory Legal. Accessible up to 14 weeks.
Legal up to 24 weeks’ gestation, 150 meter protest exclusion zones of 150m are provided around abortion clinics, requirement for parental approval removed. After 14 weeks two doctors must approve; after 24 weeks illegal, except if needed to save the woman's life.[35] The law went into effect on 1 July 2017.[36][37]
Queensland Legal. Accessible up to 22 weeks.Legal upon request up to 22 weeks and with the approval of two doctors thereafter. Safe access zones of 150 metres are provided around abortion clinics.[38] The law went into effect on 3 December 2018.[39][40]
South Australia Legal, but restricted.Abortion is legal only when two doctors have certified that the termination is necessary to protect the life or health of the pregnant woman, or in cases where the child is likely to be handicapped.[41] Abortion must take place in a hospital and the patient must be a resident of South Australia for at least 2 months.[31] Safe access zones of 150 metres provided around abortion clinics since 1 January 2021.[42]
Tasmania Legal. Accessible up to 16 weeks.Beyond 16 weeks legal with two doctors' approval. Safe access zones of 150 metres provided around abortion clinics.[31]
Victoria Legal. Accessible up to 24 weeks.Beyond 24 weeks legal with two doctors' approval. Safe access zones of 150 metres provided around abortion clinics.[31]
Western Australia Legal but must have a referral from a doctor. Accessible up to 20 weeksVery restricted after 20 weeks.[31] Some restrictions for under 16yrs (parental notification). Western Australia is the only jurisdiction within Australia not to have safe access zones, however, as of November 2020 a bill is pending.[43]

Australian Capital Territory

In the Australian Capital Territory, references to abortion as a criminal offence were repealed by the Crimes (Abolition of Offence of Abortion) Act 2002. Before then abortion law was for many years governed by case law under sections 82–84 of the Crimes Act 1900 of New South Wales. Abortion care is now regulated under the framework of health law, standards, policies and professional ethics that apply to all healthcare.

Since 2015, it is an offence to protest within 50m of an abortion clinic within the Australian Capital Territory (otherwise called "protest free zones").[44][45]

New South Wales and Norfolk Island
Further information: Abortion Law Reform Act 2019 (New South Wales)

Abortion was decriminalised in New South Wales on 2 October 2019 with the royal assent of the Abortion Law Reform Act 2019, passed a week earlier by both houses of the New South Wales parliament.[32][46] The legislation took abortion out of the 119-year-old criminal code and regulated it as a medical procedure.

Under the new law, abortions are made available on request during the first 22 weeks of gestation. After that time, two doctors must agree that it is appropriate, based on the woman's current and future physical, psychological and social circumstances. This is similar to laws in other states and territories. However, the medical practitioner performing the abortion has obligation to give appropriate medical care if the abortion results in a live baby being born.[46]

Prior to the new law, abortion had been explicitly listed in New South Wales as a crime under sections 82–84 of the Crimes Act 1900 (NSW) since 1900,[47] but the interpretation of the law is subject to the Levine ruling, from R v Wald of 1971,[3] itself derived from the Victorian Menhennitt ruling, which held an abortion to be legal if a doctor had an honest and reasonable belief that, due to 'any economic, social or medical ground or reason', the abortion was necessary to 'preserve the woman involved from serious danger to her life or physical or mental health which the continuance of the pregnancy would entail'.[3]

This was expanded by CES v Superclinics Australia Pty Ltd (1995),[48] which extended the period during which health concerns might be considered from the duration of pregnancy to include the woman’s future health and well-being. In 2006, Dr. Suman Sood was convicted of two counts of performing an illegal abortion where she failed to enquire as to whether a lawful reason for performing the abortion did exist.[49][50]

Since 1 July 2016, all NSW laws also apply to the approximately 2000 residents on Norfolk Island, under both the Norfolk Island Legislation Amendment Act 2015 and the Territories Legislation Amendment Act 2016, after the Norfolk Legislative Assembly was abolished on 1 July 2015.[51][52][53]

In June 2016, Greens upper house MP Dr Mehreen Faruqi was to introduce a bill decriminalising abortion in NSW. However, on the eve of the introduction of the bill on 23 June 2016, it was removed from the order of business for the following day, despite being first in the order of precedence for months, scheduled and publicly announced.[54][55]

In August 2016, Mehreen Faruqi released an exposure draft of the Abortion Law Reform (Miscellaneous Acts Amendment) Bill 2016 to "Repeal sections 82–84 of the Crimes Act, relating to abortion offences; Provide for a 150m safe access zone around abortion clinics and service providers to ensure a patient's right to medical privacy; and Require doctors to disclose conscientious objection at the start of the consultation and refer patients to another doctor who does not have such an objection or to the local Women's Health NSW centre".[56] The bill was introduced to the upper house on 11 August 2016.[57] It was defeated in the second reading 25-14 on 11 May 2017.[58]

Since 1 July 2018, law was passed making it illegal to protest within 150m of an abortion service.[33][34]

On 1 August 2019, a new abortion reform bill to decriminalise abortions in NSW, known as Reproductive Health Care Reform Bill 2019, was introduced by independent MP Alex Greenwich to the lower house of parliament. The bill passed the lower house on 8 August 2019. The upper house passed the bill with new amendments on 25 September 2019, including a name change of the bill to Abortion Law Reform Bill 2019.[59] The next day, the amended bill passed the lower house, and was assented by the Governor on 2 October 2019, becoming law with immediate effect.[46][32]

Northern Territory

In the Northern Territory, abortion is legal up to 24 weeks’ gestation. Surgical and medical abortion are available in the public health system.[60] This is unusual in Australia where abortion services are frequently outsourced to private providers.[61]

The Termination of Pregnancy Law Reform Act[62] was enacted on 1 July 2017 and removed the need for two doctors to examine a woman before 14 weeks gestation, implemented a 150-metre "safe access zone" around clinics, removed the requirement of parental approval for the procedure and provided the ability for the prescription of medical abortions tablets.[35] The political debate was contested and four male politicians voted against the reforms.[36] The Interpretive Report 2018, recorded 742 abortion in the previous 12 months with 73% being medical abortion with tablets before 9 weeks gestation, the remaining 27% were conducted in hospital. Since the legislative change, 99.33% of terminations of pregnancy were conducted under 14 week's gestation.[63] This has also meant that the waiting time in a public hospital for a surgical termination has reduced which has policy and public health economic implications.[64]

Queensland
Main article: Abortion in Queensland

Since 3 December 2018, abortion in Queensland has been available on request during the first 22 weeks of gestation. After that period, two doctors must sign off on the procedure before a woman can access an abortion unless there is a danger to the life of the woman or, in a multiple pregnancy, another unborn child.[65][66]

Prior to December 2018, abortion access in Queensland was determined by the 1986 McGuire ruling, which declared abortion to be legal if necessary to preserve the woman from a serious danger to her life or health—beyond the normal dangers of pregnancy and childbirth—that would result if the pregnancy continued, and is not disproportionate to the danger being averted. Until 2008, abortion law in Queensland closely mirrored the law in Victoria. The McGuire ruling was affirmed in the 1994 case Veivers v. Connolly, by a single judge of the Supreme Court of Queensland.[1]

South Australia

In South Australia, South Australian residents up to 23 weeks pregnant can have an early medication or surgical abortion. Safe access zones of 150 metres provided around abortion clinics effective since 1 January 2021.[67][68]

Legislation in 1969 legalised abortion when necessary to protect the life or physical or mental health of the woman—taking into account the current and reasonably foreseeable future—or in cases when the child was likely to be born with serious handicaps.[69] Abortions must be performed before a time limit of 28 weeks of pregnancy. Abortions must be performed in a hospital and be approved by two physicians, and are also subject to a residency requirement (patient must be a resident of South Australia for at least two months). The hospital, dual approval and residency requirement may be waived in an emergency. Abortions in South Australia are available for free or low cost at some of the public health facilities including The Pregnancy Advisory Centre.[70] This Pregnancy Advisory Centre is a registered hospital with doctors available for approval. Both medical and surgical abortions are performed.

A bill fully decriminalizing abortion was introduced into the state parliament in October 2020.[71] Under the proposed laws, abortion can be performed upon request up to 22 weeks and six days gestation. After that period, a medical practitioner can only perform an abortion if they consult with another practitioner and if both are of the view that the procedure is medically appropriate. The reform would also remove abortion entirely from the criminal code. The Upper House passed the law on 3 December 2020, and will be subjected to a conscience vote in the Lower House.[72]

Tasmania

In Tasmania, since 21 November 2013, abortions are allowed on request up to 16 weeks of pregnancy. After 16 weeks abortion requires the consent of two doctors on medical or psychological grounds. The law also prohibits filming, the holding of protests, harassment or intimidation of patients or staff within 150 metres of abortion clinics.[73][74][75]

From 1925 until 2001, Tasmania's Criminal Code prohibited "unlawful abortion" without actually stating what was lawful or not. While it had never actually been prosecuted, it had been held that Victoria's Menhennitt ruling of 1969 and New South Wales' Levine ruling applied in Tasmanian law. In late 2001, the Criminal Code was clarified to state that an abortion must be carried out under a set of criteria resembling those of the South Australian requirements.

The availability of abortion facilities in the state is limited. The state's public health system provides abortion services in only extraordinary circumstances (e.g. in cases of foetal abnormality), so most women access pregnancy terminations through the private sector. In 2017, the state's only dedicated low-cost surgical abortion clinic closed. Some women chose to fly interstate for pregnancy terminations.[76]

Victoria
Main article: Abortion Law Reform Act 2008 (Victoria)

In Victoria, since 2008, abortions are allowed on request up to 24 weeks of pregnancy, with abortions after that time, up until the child's birth, requiring two doctors to agree that it is appropriate, based on the woman's current and future physical, psychological and social circumstances.[77][78]

Before 2008, abortion law was based on the Victorian Crimes Act, as interpreted by the Menhennitt ruling in 1969, in the case of R v Davidson. Under the ruling, abortions were legal if necessary to preserve the woman from a serious danger to her life or health—beyond the normal dangers of pregnancy and childbirth—that would result if the pregnancy continued, and is not disproportionate to the danger being averted. Menhennitt's ruling remained the basis for abortion law in Victoria until the Abortion Law Reform Act 2008 (Vic) decriminalised abortions up to a gestational limit of 24 weeks.

Western Australia

In Western Australia, since 20 May 1998, abortions are allowed on request (with a referral from a doctor) up to 20 weeks of pregnancy—subject to counselling by a medical practitioner other than the one performing the abortion—or when serious personal, family or social consequences will result to the woman if an abortion is not performed, when the life or physical or mental health of the woman is endangered and when the pregnancy causes serious danger to the woman's mental health. After 20 weeks of pregnancy abortions may only be performed if the fetus is likely to be born with severe medical problems—which must be confirmed by two independently appointed doctors. In the event of the woman being under 16 years of age one of her parents must be notified, except where permission has been granted by the Children's Court or the woman does not live with her parents.[31]

Western Australia is the only jurisdiction in Australia not to have safe access zones, however a bill is pending to create zones within 150 metres of an abortion clinic.[79]

Until 1998, Western Australian law apparently mirrored that of Queensland, though it was never clarified by case law or legislation. Following the prosecution in 1998 of two Perth doctors for performing an illegal abortion—the first such prosecution in over 30 years—a private member's bill was introduced by Cheryl Davenport, a member of the Australian Labor Party in the Upper House of the Western Australian parliament to amend the law.

Child destruction laws

Each state and territory has its own criminal code relating to child destruction. The offence is called "killing unborn child" and can be committed only around the time of childbirth[80] in Queensland,[81] Western Australia,[82] and the Northern Territory.[83] It is called "causing death of child before birth" in Tasmania.[84] In South Australia, it comes under the heading of "abortion".[85] The definition is somewhat broader in the Australian Capital Territory,[80][86] and comparably broad to English law in Tasmania[84] and South Australia.[85][80] The offence was abolished in Victoria by the Abortion Law Reform Act 2008 (Victoria).[87]

New South Wales does not have a child destruction enactment,[80] but the Crimes Amendment (Grievous Bodily Harm) Act 2005 (NSW) amended the Crimes Act 1900 (NSW) so that s 4(1)(a) now defines "grievous bodily harm" as including "the destruction (other than in the course of a medical procedure) of the foetus of a pregnant woman, whether or not the woman suffers any other harm".[88] This was further amended by the Abortion Law Reform Act 2019 to "the destruction (other than in the course of a medical procedure or a termination of a pregnancy in accordance with the Abortion Law Reform Act 2019) of the foetus of a pregnant woman, whether or not the woman suffers any other harm."

Statistics

There is a lack of consistent data collection standards across states due to differences in definitions, making it difficult or impossible to accurately quantify the number of abortions performed in Australia each year.[89] There were an average of 75,700 Medicare-funded procedures that could result in an "abortive outcome" performed each year from 1995 to 2004, but this figure includes miscarriages as well as terminations. On the other hand, many women who have medical abortions performed at private hospitals may not claim the Medicare rebate.[89]

South Australia is the only state which collects and publishes data on abortions. In 2002 there were 5147 medical abortions performed in South Australia, or 17.2 per 1000 women aged 15–44. Projected nationally, this would suggest that about 73,300 abortions were performed nationwide. This does not take into account differences between states. For example, unpublished data from Western Australia estimates a rate of 19.4 terminations per 1000 women in the same age bracket, which would indicate about 82,700 abortions projected nationally.[89]

The South Australian data also indicates that the vast majority of abortions performed 1994–2002 occurred before 14 weeks gestation. Less than 2% took place at or after 20 weeks.[89]

Public opinion
Main article: Societal attitudes towards abortion

Since at least the 1980s, opinion polls have shown a majority of Australians support abortion rights,[90] and that support for abortion is increasing.[91]

  • In 1987, a Saulwick poll found only about 7 per cent of Australians would not approve of abortions under any circumstances.[92]
  • In 2003, a poll by The Australian Survey of Social Attitudes (AuSSA) found that 81% of Australians believe a woman should have the right to choose an abortion, and 9% believe they should not; 7% were neutral and 2% could not decide.[91]
  • In 2005, a Nielsen Corporation poll found that 56% of Australians thought the abortion laws in place, which generally allow abortion for the sake of life, health, or economic factors, were "about right", 16% want changes in law to make abortion "more accessible" and 17% want changes to make it "less accessible".[93]
  • In 2006, a poll by Roy Morgan Research found that 65% of the Australians approved of surgical abortion and 22% disapproved, and that 62% believed RU-486 should be available to women while 31% believed it should not.[94]
  • In 2006, interviews found that 80% of Australians disapproved the use of sex-selective abortion.[95]
  • In 2007, a poll by AuSSA found that 4% of Australians are opposed to abortion in all circumstances, 33% believe abortion should be allowed in certain circumstances and 57% believed it should be readily available whenever a woman wants one; 7% were undecided or did not respond.[96]
  • In 2009, a study of polls conducted during Australia's 2007 federal elections found that a clear majority of both Labor Party and Liberal Party voters support abortion rights.[96] The study also showed that 77 per cent of winning candidates in the 2007 election favoured an unrestricted approach to abortion.[97]
  • In 2010, a study published in The Medical Journal of Australia found that 61% of Australians said abortion should be lawful without question in the first trimester of pregnancy, while 26% said it should be lawful depending on the reason.[98] In the second trimester and third trimesters, support for outright lawful abortion was 12% and 6% respectively, while 57% and 42% respectively said it depended on the circumstances.[99]

See also

References
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