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Abortion is a safe medical procedure, yet half of Australian women may have difficulty accessing a termination because they live in states and territories that designate it a crime.
From the 19th century onward, abortion was regarded as a crime in Australia. Abortion law was included in criminal legislation and was based on the 1861 English Offences Against the Person Act.
Since then, some states and territories have reformed or decriminalised abortion, while others continue to restrict women’s access to abortion in a way entirely inappropriate for the 21st century.
Abortion laws in Australia are all state or territory laws. The Commonwealth is only responsible for the oversight of drugs for medical abortion through the Therapeutic Goods Administration.
Queensland law remains little changed from the 1899 Criminal Code which contains the same wording as the 1861 English Act. Any person who carries out, or assists with, an abortion may be liable to criminal prosecution, including the woman herself.
Any defence hinges on the interpretation of the “surgical operations and medical treatment” defence in section 282 of the Code.
In the 1986 case R v Bayliss, which interprets sections 282 of the criminal code, Justice McGuire found that “in exceptional cases” an abortion would not be unlawful where it was carried out in good faith to avoid “serious danger to the mother’s life or her physical or mental health (not merely the normal dangers of pregnancy and childbirth) which the continuation of the pregnancy would entail”.
In 2009-10, a Cairns couple was charged under the Queensland legislation. Although they were acquitted after a jury trial, they were subject to 18 months of glaring negative publicity.
Abortion has been a criminal offence in NSW since 1900, under the state’s Crimes Act.
NSW case law has established that in certain circumstances, similar to those in Queensland, an abortion would not be unlawful. It also allows for broader considerations of economic and social factors to determine whether continuing the pregnancy poses a serious danger to the woman’s mental health.
Until 1998, the position in Western Australia under the Criminal Code Act 1902 was similar to current Queensland law: unlawful abortion was a criminal offence. Although, there was no case law in WA to determine when abortion was lawful.
Following legislative reform (but not complete decriminalisation) in 1998, abortion is now lawful up to 20 weeks if the woman gives her consent*, or, where she is unable to consent herself, she will suffer “serious danger to her physical or mental health or serious personal, family or social consequences if the abortion is not performed”.
After 20 weeks, abortions can only be performed if two medical practitioners from a statutory panel of six agree that the woman or her fetus has a “severe medical condition” that justifies the procedure.
In practice, the panel only accepts very severe fetal abnormalities, driving women towards abortion “tourism” in Victoria and elsewhere.
Under the Criminal Law Consolidation Act 1935, and 1969 amendments, abortion is lawful in SA in certain circumstances prescribed by legislation. So, similarly to WA, there has not been complete decriminalisation.
Abortion must be carried out in a hospital or prescribed facility, which has limited availability of early medical abortion in the state.
The woman must have resided in SA for a minimum of two months for the abortion to be lawful unless the grounds are fetal abnormality or immediate threat to the life or health of the woman.
Under SA law, the woman herself can still be charged with procuring an “unlawful” abortion.
Abortion remains in the NT Criminal Code but has been modified by the Medical Services Act 1974, which makes abortion lawful up to 14 weeks. Two medical practitioners must agree that there is a risk to the mother in continuing the pregnancy or there is substantial risk that the child would be born with a serious “handicap”.
Abortion is also lawful up to 23 weeks gestation where the medical practitioner is of the opinion that terminating the pregnancy is immediately necessary to prevent serious harm to the woman’s life, physical or mental health.
However requirements that early medical abortions must be performed in hospitals, and not clinics, limit the availability, as there are so few hospitals in the NT.
In Tasmania until 2013, under the Criminal Code Act 1924, the “unlawful termination” of a pregnancy was prohibited. The Reproductive Health (Access to Terminations) Act 2013 has essentially decriminalised abortion and moved it into the health regulations.
Abortion can be performed by a medical practitioner with the woman’s consent, up to 16 weeks' gestation.
After 16 weeks, it can be performed if two medical practitioners (one of whom must be an specialist gynaecologist) reasonably believe the continuation of the pregnancy would involve greater risk of injury to the physical or mental health of the pregnant woman than if the pregnancy were terminated.
The woman herself cannot be charged.
This Tasmanian legislation also includes restrictions on the harassment of women seeking abortion services by mandating exclusion zones around clinics, the only legislation so far to do so.
The Victorian Abortion Law Reform Act 2008 decriminalised abortion by removing it from the 1958 Crimes Act and placing it in the health regulations.
A pregnant woman who requests an abortion is entitled to the procedure when the pregnancy does not exceed 24 weeks. After 24 weeks, abortion is available where a medical practitioner reasonably believes that the abortion is appropriate and has the agreement of a second practitioner.
Where a doctor conscientiously objects to abortion, he or she is obliged to make a referral to a provider who is known not to conscientiously object.
Abortion was decriminalised in 2002 with the introduction of the ACT Medical Practitioners (Maternal Health) Amendment Act. A woman seeking or receiving an abortion faces no legal sanction; nor does the service provider.
All Australian women should be able to access abortions, no matter where they live. Ideally, all states and territories would have consistent laws based on Victorian legislation, with the addition of Tasmania’s prohibition on the harassment of women as they enter abortion clinics.
* This article has been updated to better reflect the legal position in Western Australia, where the woman consents to abortion and the fetus is 20 weeks or less gestation.