Abortion in Australia

State-by-state legality of abortion in Australia.
  Legal on request
+
  Exemptions, due to legal definitions, in criminal law for maternal life, rape, health, fetal defects, mental health, economic factors, and/or social factors
+
  Legal for maternal life, rape, health, fetal defects, and/or mental health
+
  Exemptions, due to legal definitions, in criminal law for maternal life, health, and/or mental health

Abortion in Australia is a subject of state law rather than national law. The grounds on which abortion is permitted in Australia vary from state to state. In every state, abortion is legal to protect the life and health of a woman, though each state has a different definition.

Nowhere in Australia is there a requirement that a woman's sexual partner be notified of a proposed 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. In Western Australia, a proposed abortion by a minor under 16 years of age must be notified to one of the parents, except where permission has been granted by the Children's Court or the minor does not live with her parents.

Early-term surgical abortions are generally available around Australia for those women who seek them. The procedure is partially funded under Medicare, the government-funded public health scheme, or by private healthcare insurers. Prosecutions against medical practitioners for performing abortions have not occurred for decades, with one exception – a prosecution in 1998 in Western Australia that soon after led to the explicit legalisation of on-request abortions under certain circumstances in that state. RU-486, an abortifacient widely used overseas, has been available in Australia only since February 2006.

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

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 an unwanted pregnancy is interpreted as clinically injurious.

A number of federal politicians have expressed anti-abortion views including Senator Ron Boswell (who was for a time National Party leader in the Senate), Barnaby Joyce[5] and Tony Abbott (when he was federal Health Minister), who in 2004 described the scale of abortion as a "national tragedy".[6]

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 (now Telstra). In return, Harrdine received support for introducing restrictions on women's reproductive rights[7]. Abortifacient drugs were designated as "restricted goods" which required approval from the health minister before the drug could be assessed by the Therapeutic Goods Administration (TGA), which was required before drugs could be sold in Australia. This created a ministerial veto over such drugs. This ensured that RU-486, a drug widely used overseas as an abortifacient, was effectively banned in Australia until 2006. Health Minister Tony Abbott, and previous ministers, used this process to prohibit the sale of RU-486 in Australia, by refusing to allow the drug to be assessed by the TGA.

In late 2005, a private member's bill was introduced in the Senate and passed on 10 February 2006 to transfer the veto over abortifacients from the health minister to the TGA. The bill was approved by the Houses of Representatives in March 2006.[8] Abbott responded to the vote by calling for the addition of a Medicare item number for funding of alternative counselling to pregnant women through church-affiliated groups to lower the national abortion rate,[9] without success. In 2010, while seeking election as Liberal Party leader, Abbott pledged not to make any changes to abortion laws, to ban funding for abortions through Medicare, or to ban drug RU-486.[6]

In 2017 Cory Bernardi moved a motion to ban abortion on gender grounds. Queensland LNP senator Barry O'Sullivan, Tasmanian Liberal Eric Abetz, frontbenchers Zed Seselja, Anne Ruston and Matt Canavan with One Nation's Fraser Anning, Brian Burston, Peter Georgiou and Pauline Hanson voted Yes on the Motion. It was voted down (10–36).[10][11]

The violence seen in the United States against abortion providers has generally not occurred in Australia, with two exceptions. In 2001, Peter Knight forced his way into a Melbourne clinic carrying a rifle, kerosene, and equipment to lock the doors of the clinic. Three people attempted to disarm him after he pointed his rifle at a woman at the clinic. He shot and killed a security guard. Afterwards, Knight, described by the prosecution as a "hermit obsessed with killing abortion doctors" was convicted of murder.[12][13] On 6 January 2009 A firebombing using Molotov cocktails was attempted at a medical clinic in Mosman Park, Western Australia. Faulty construction of the bombs limited damage to a single external burnt area, though if successful damage would have been severe. It is believed that the individuals who made the attack were responsible for graffiti "baby killers" on the site, indicating an anti-abortion reason for the attack. The site turned out to in fact not be an abortion clinic, though the attackers most likely were not aware of this.[14]

Another tactic adopted by anti-abortion campaigners is to form picket lines outside premises where abortions are being performed. Several states and territories set "exclusions zones" for anti-abortion protesters.

State laws

Summary table

State or TerritoryStatusExceptions
Australian Capital Territory Legal and accessibleMust be provided by medical doctor. Health Minister may set 50m exclusion zones for protests.[15]
New South Wales and Norfolk Island Criminal offence
subject to CES v Superclinics Australia Pty Ltd (1995)[16]		Legal if a doctor finds any economic, social or medical ground or reason that abortion is required to avoid serious danger to the pregnant woman's life or to her physical or mental health.[15] Since 1 July 2018 within NSW it is illegal to protest within 150m of an abortion service.[17][18]
Northern Territory Legal. Accessible up to 14 weeks.
Legal for up to 24 weeks’ gestation, implementing a 150-metre "safe access zone", removing the requirement of parental approval for abortions and providing early medical abortions with tablets. After 14 weeks two doctors must approve; after 24 weeks illegal, except if needed to save the woman's life.[19] The law went into effect on 1 July 2017.[20][21]
Queensland Criminal offence
subject to McGuire ruling		Legal up to 22 weeks if necessary to preserve the woman from a serious danger to her life or health beyond the normal dangers of pregnancy and childbirth or if the foetus has a defect which is considered to be "inconsistent" with life.[15]
South Australia Legal, but restrictedLegal up to 28 weeks if two doctors agree that a woman's physical and/or mental health endangered by pregnancy, or for serious foetal abnormality. Abortion must take place in a hospital.[15]
Tasmania Legal. Accessible up to 16 weeks.Beyond 16 weeks legal with two doctors' approval. Illegal to protest within 150m of an abortion service.[15]
Victoria Legal. Accessible up to 24 weeks.Beyond 24 weeks legal if two doctors agree. Illegal to protest within 150m of an abortion service.[15]
Western Australia Legal. Accessible up to 20 weeks.Very restricted after 20 weeks.[15] Some restrictions for under 16yrs (parental notification)

Australian Capital Territory

In the Australian Capital Territory, reference 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.

Since 2015, it is an offence to protest within 50 metres of an abortion clinic within the Australian Capital Territory (otherwise called "protest free zones").[22][23]

Section 9 of the "Human Rights Act 2004 (ACT)" confirms that the right to life applies to a person from the time of birth. Full-term abortions on demand are legal in the ACT as there are no gestational limits.

New South Wales and Norfolk Island

Since 1 July 2018 within NSW it is illegal to protest within 150m of an abortion service.[24][25]

Since the year 1900, within New South Wales abortion is explicitly listed as a crime under sections 82–84 of the Crimes Act 1900,[26] 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),[27] which extended the period during which health concerns might be considered from the duration of pregnancy to any period during the woman's life, even after the birth of the child. This arguably precludes any successful prosecutions for illegal abortions. Despite this, in 2006, a doctor, 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.[28][29]

Since 1 July 2016 all NSW laws also apply to the approximately 2,000 residents on Norfolk Island, under both the Norfolk Island Legislation Amendment Act 2015 and the Territories Legislation Amendment Act 2016 – because the Norfolk Legislative Assembly was abolished on 1 July 2015.[30][31][32]

In August 2016, Greens MP Dr 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".[33]

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.[34] Dr Mehreen Faruqi "introduced the first ever abortion law reform bill into NSW Parliament" on 11 August 2016.[35]

Northern Territory

In the Northern Territory, abortion is legal for up to 24 weeks’ gestation, implementing a 150-metre "safe access zone", removing the requirement of parental approval for abortions and providing early medical abortions with tablets.[19] The law went into effect on 1 July 2017.[20][21]

Queensland

The McGuire ruling in the District Court ruling in 1986 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]

Abortions are carried out as "therapeutic miscarriages", performed by specialists, upon request of the patient after an appointment with their local GP. This procedure is only applicable to pregnancies less than 22 weeks and is partly covered by Medicare or more-so by private healthcare insurers. In addition to this, abortions can be performed if a foetal defect is considered to be "inconsistent with life" – this has been narrowly interpreted to mean that the newborn would die immediately or shortly after birth. While this is the case under law, in practice doctors and family planning services generally allow abortions for other reasons, such as the mother not feeling ready to have a child.

South Australia

In South Australia, 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. 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). 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.[36] This Pregnancy Advisory Centre is a registered hospital with doctors available for approval. Both medical and surgical abortions are performed.

Tasmania

In Tasmania, since 21 November 2013, abortions are allowed on request up to 16 weeks of pregnancy. After 16 weeks abortions can be performed up to birth of the child requiring consent of two doctors on medical or psychological grounds. The law also criminalises filming, "intimidation" and "protests" (where handing out information, offering pregnant women help and support, praying, and so forth is deemed intimidating and offensive) within 150 metres of abortion clinics ("protest free zones").[37][38]

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 Menhennit 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.

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.[39][40]

Before 2008, abortion law was based on the Victorian Crimes Act as interpreted by the Menhennitt ruling of 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 for almost 40 years, until the Abortion Law Reform Act 2008 (Vic) formally decriminalised abortion.

Western Australia

In Western Australia, since 20 May 1998, abortions are allowed on request 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.[15]

Until 1998, Western Australian law apparently mirrored that of Queensland, though it was never clarified by case law or legislation. Following the 1998 announcement of the prosecution 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.

Statistics

Due to the lack of consistent data collection standards across States and the differences in definitions, it is difficult or impossible to accurately quantify the number of abortions performed in Australia each year.[41] 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 it should be noted that 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.[41]

South Australia is the only state which collects and publishes data on abortions. In 2002 there were 5,147 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.[41]

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.[41]

Public opinion

Since at least the 1980s, opinion polls have shown a majority of Australians support abortion rights.[42]

  • In a 1987 Saulwick poll, a core of only about 7% of Australians would not approve of abortions under any circumstances.[43]
  • In a February 2005 ACNielsen poll, as reported in The Age, 56% thought the current abortion laws, 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".[44]
  • A 2006 poll, conducted by Roy Morgan Research, asked, "Do you approve of the termination of unwanted pregnancies through surgical abortion?" 65% of the Australians polled stated that they approved of surgical abortion and 22% stated that they disapproved of it.[45]
  • A 2009 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.[46] The study also showed that 77% of winning candidates in the 2007 election favoured an unrestricted approach to abortion.[47][48]
  • A 2010 nationally representative study of Australians over 18 years published in The Medical Journal of Australia found that 61 per cent said abortion should be lawful without question for a woman in her first trimester of pregnancy, while 26 per cent said it should be lawful depending on the reason.[49] In the second trimester (12 to 24 weeks), support for outright lawful abortion was 12 per cent, while 57 per cent said it depended on circumstances. For third trimester or late-term abortions, 6 per cent said it should be outright lawful while 42 per cent said it depended on circumstances and 48 per cent said it should be unlawful.[50]
  • A 2011 study by Kippen, Evans and Gray found that 80% of people were against allowing abortion for sex selection.[51]

See also

References

  1. 1 2 Parliament of Australia, Abortion Law in Australia
  2. ↑ R v Davidson (Menhennitt ruling) [1969] VicRp 85, [1969] VR 667 (3 June 1969), Supreme Court (Vic, Australia).
  3. 1 2 3 R v Wald (1971) 3 NSW DCR 25. Confirmed in CES v Superclinics Australia Pty Ltd.[27]
  4. ↑ R v Bayliss & Cullen (1986) 9 Queensland Lawyer Reports 8.
  5. ↑ "Hon Barnaby Joyce MP". 29 January 2018.
  6. 1 2 Nicola Berkovic (9 August 2010). "Tony Abbott pledges to make no changes to abortion law". The Australian.
  7. ↑ "The lethal legacy of Brian Harradine: his long war on women's rights". Crikey. 24 April 2014. Retrieved 31 May 2018.
  8. ↑ Albury, Rebecca. "Too Many, Too Late and the Adoption Alternative: Shame and Recent Abortion Debates" uow.edu.au
  9. ↑ Paul Smith (17 August 2005). "Abbott floats item for pre-abortion counselling". Australian Doctor.
  10. ↑ https://theyvoteforyou.org.au/divisions/senate/2017-11-16/2
  11. ↑ http://www.abc.net.au/news/2017-11-16/bernardi-making-provocative-motions-hanson-young-fires-up/9158076
  12. ↑ R v Knight [2002] VSC 498 (19 November 2002).
  13. ↑ "Australian abortion clinic guard killed". BBC News. 16 July 2001. Retrieved 13 April 2006.
  14. ↑ "Arsonists attack mosman park clinic". BBC News. 16 July 2001. Retrieved 13 April 2006. .
  15. 1 2 3 4 5 6 7 8 Children by Choice Assoc, Australian Abortion Law
  16. ↑ 38 NSWLR 47
  17. ↑
  18. ↑
  19. 1 2 Decriminalisation in the NT signals abortion is part of normal health care
  20. 1 2 ABC News, 22 March 2017, NT abortion bill: Reform to allow RU486 will deliver equality, lead to 'dark ages', politicians tell Parliament
  21. 1 2
  22. ↑
  23. ↑
  24. ↑
  25. ↑
  26. ↑ Crimes Act 1900 (NSW).
  27. 1 2 CES v Superclinics (Australia) Pty Ltd [1995] NSWSC 103, (1995) 38 NSWLR 47, Court of Appeal (NSW, Australia).
  28. ↑ R v Sood (No 3) [2006] NSWSC 762 (15 September 2006), Supreme Court (NSW, Australia).
  29. ↑ "THE SOOD ABORTION TRIAL". Radio National Law Report. Australian Broadcasting Corporation. 29 August 2006.
  30. ↑
  31. ↑
  32. ↑
  33. ↑ ABORTION LAW REFORM BILL – EXPOSURE DRAFT
  34. ↑ Major parties combine to derail introduction of NSW abortion bill Posted on 23/06/2016
  35. ↑ Historic First Abortion Law Reform Bill Introduced in NSW Parliament, Posted on 11 August 2016, http://www.mehreenfaruqi.org.au/historic-first-abortion-law-reform-bill-introduced-in-nsw-parliament/
  36. ↑ http://www.pregnancyadvisorycentre.com.au/
  37. ↑ http://www.abc.net.au/news/2013-11-22/tasmania-removes-abortion-criminal-code/5109554
  38. ↑ http://www.news.com.au/national/breaking-news/tasmanian-abortion-law-reformed/story-e6frfku9-1226765330425
  39. ↑ (24 August 2008). "New law will not end abortion controversy." The Age. Retrieved 15 September 2008.
  40. ↑ Abortion Law Reform Act 2008 (Vic).
  41. 1 2 3 4 Angela Pratt; Amanda Biggs; Luke Buckmaster (14 February 2005), How many abortions are there in Australia? A discussion of abortion statistics, their limitations, and options for improved statistical collection, Parliamentary Library, archived from the original on 2 December 2014, retrieved 1 December 2014
  42. ↑ It’s time to come clean on abortion debate Archived 13 October 2009 at the Wayback Machine., emilyslist.org.au. (1 February 2005). Retrieved 5 April 2009.
  43. ↑ "Archived copy". Archived from the original on 20 May 2009. Retrieved 5 April 2009. Retrieved on 5 April 2009.
  44. ↑ Grattan, Michelle. (16 February 2005). "Poll backs abortion laws." The Age. Retrieved 11 January 2006.
  45. ↑ Roy Morgan International. (11 February 2006). Majority Of Australians Think Abortion Pill (RU486) Should Be Made Available To Australian Women Archived 4 September 2007 at the Wayback Machine.. Retrieved 28 January 2008.
  46. ↑ Betts, Katharine (2009). "Attitudes to abortion: Australia and Queensland in the 21st century". People and Place. Monash University Journals and Newspapers. A young couple in Queensland face charges of procuring the woman's abortion with the drugs RU486 and Misoprostol. The case provoked widespread doubts about the legality of abortion in Queensland, especially medical abortion. State politicians, even those claiming to be pro-choice, are reluctant to decriminalise abortion saying that such a move would cost votes or might lead to an even more restrictive position than that which now prevails. In fact more than half the electorate in Australia and in Queensland support freedom of choice, and a further third support the availability of abortion in special circumstances. Candidates for election to the federal parliament are even more liberal. Such opposition as there is concentrated among a few religious groups and among people aged 75 and over. As far as attitudes are concerned, Queensland is no different from the rest of Australia. A May 2009 Auspoll found that 79 per cent of Queenslanders supported decriminalisation.
  47. ↑ Adele Horin (5 October 2009). "Right to choose abortion wins strong support". The Sydney Morning Herald. AUSTRALIANS in general, and Queenslanders in particular, hold liberal views on abortion, yet politicians' fear of small religious minorities appears to have stymied decriminalisation of the procedure in some states, a study shows.
  48. ↑ http://www.lifenews.com (5 October 2009). Australia Poll Finds Majority of Australians Pro-Abortion, Change From 20 Years Ago. Retrieved 2009-26-10.
  49. ↑ Lachlan J de Crespigny (5 July 2010). "Australian attitudes to early and late abortion". Medical Journal of Australia. Australian Medical Association. PMID 20618106.
  50. ↑ "Call for early abortion to be lawful: poll". The Age. Melbourne. 5 July 2010.
  51. ↑ Kippen, Rebecca, Ann Evans, and Edith Gray. "Australian attitudes toward sex selection technology." Fertility and sterility 95.5 (2011): 18241826.
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