Abortion in Australia

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 the woman, though each state has a different definition.

There is no law anywhere in Australia that requires the notification or consent of a woman's sexual partner. There is also no enforced waiting period for an abortion. Except in Western Australia, a minor does not require parental consent or notification.

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.

When '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

At federation in 1901, abortion was governed in each State by adoptions of the British Offences Against the Person Act 1861, which in turn derived from English laws from 1837, 1828 and 1803, which made abortion illegal under any circumstances. Since then, however, abortion law has remained subject to case law and legislation in each of the States.

In 1969, in R v Davidson,^[1] the Menhennitt ruling set a legal precedent in Australia concerning the legality of abortion: 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." It was later largely adopted by courts in New South Wales (with the Levine ruling of 1971) and Queensland (McGuire ruling of 1986), 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.

RU-486, a drug widely used overseas as an abortifacient, was effectively banned in Australia in 1996. This was because of a deal in the federal Senate between anti-abortion Tasmanian Senator Brian Harradine and the major parties to get his vote on other issues. Abortifacient drugs were deemed to belong to a special class of medications – "restricted goods" – for which approval from the health minister had to be obtained before the drug could be assessed by the Therapeutic Goods Administration. In late 2005, a private member's bill was introduced in the Senate and passed on 10 February 2006 to transfer the power of veto over abortifacients from the health minister to the Therapeutic Goods Administration. This bill was approved by the Houses of Representatives in March 2006.^[2] Health Minister Tony Abbott and previous ministers wouldn't allow it to be made available prior to the vote. Abbott responded to the vote by calling for funding of alternative counselling to pregnant women through church-affiliated groups.

There are anti-abortion groups and individuals in Australia, some of whom stage protests outside clinics providing abortions. However, the wider public seems largely happy with the status quo, and most politicians prefer to avoid the topic entirely if possible. Exceptions to this include Senator Ron Boswell, Senator Barnaby Joyce and the former federal health minister Tony Abbott, who describes the current scale of abortion as a "national tragedy"^[3] and has proposed the addition of a Medicare item number for counselling to lower the national abortion rate.^[4] In 2010, while seeking election, Abbott pledged not to make any changes to abortion laws, to ban funding through Medicare nor to ban drug RU-486.^[3]

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.^[5][6] 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.^[7] Another tactic adopted by anti-abortion campaigners is to form picket lines outside premises where abortions are being performed, including some public hospitals.

State laws

State-by-state legality of abortion in Australia.

  Legal on request

  Legal 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

  Legal for maternal life, health, and/or mental health

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.

New South Wales

In New South Wales, abortions are unlawful under sections 82-84 of the Crimes Act 1900,^[8] but the interpretation of the law is subject to the Levine ruling, from R v Wald of 1971,^[9] itself derived from the Victorian Menhennitt ruling, which held an abortion to be legal if a doctor found 'any economic, social or medical ground or reason' that an abortion was required to avoid a 'serious danger to the pregnant woman's life or to her physical or mental health' at any point during pregnancy.

This was expanded by the Kirby ruling of 1994,^[10] 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.^[11][12]

Northern Territory

In the Northern Territory, abortions may be performed up to 14 weeks of pregnancy, except when there is a serious risk to the woman's health, when abortions are allowed up to 23 weeks. The 1974 legislation in 1974, based on earlier legislation in South Australia and the United Kingdom, legalised abortion if the risk to the woman's life or health is greater than it would be if the pregnancy were not terminated and it is likely that the child will be physically or mentally handicapped. An abortion must be approved by two medical practitioners and must be performed in a hospital.

Queensland

In Queensland, abortions (called "therapeutic miscarriages") are allowed on request up to 22 weeks of pregnancy. They must be performed by specialists, upon request of the woman after an appointment with a general medical practitioner. In addition, abortions can be performed if a fetal defect is considered to be "inconsistent with life" – which has been narrowly interpreted to mean that the newborn would die immediately or shortly after birth.

The McGuire ruling, from R v Bayliss & Cullen of 1986 which adopted the Menhennitt ruling, held 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.

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 – possibly 22–23 weeks of pregnancy, certainly 28 weeks. Abortions must be performed in a hospital and be approved by two physicians, and are also subject to a residency requirement. The hospital, dual approval and residency requirement may be waived in an emergency. In reality, abortions in South Australia are available for free and in many cases on the spot at the Pregnancy Advisory Centre.^[13] This facility is a registered hospital with multiple doctors available for approval and residency requirements are not checked against ID. 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, with abortions after that time requiring consent of two doctors on medical or psychological grounds. The law also criminalises filming, intimidation and protests against patients within 150 metres of abortion clinics.^[14][15]

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 requiring two doctors to agree that it is appropriate, based on the woman's current and future physical, psychological and social circumstances.^[16][17]

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.^[18]

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.^[19] There were an average of 75,700 Medicare-funded procedures that could result in an "abortive outcome" performed each year from 1995–2004, 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.^[19]

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 nation-wide. 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.^[19]

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.^[19]

Anti-abortion groups have been criticised for exaggerating the number of abortions in Australia. Perhaps most prominently, Tony Abbott (as health minister in the Howard Government, and presently the Prime Minister of Australia) claimed in 2004 that 100,000 women choose to end their pregnancy annually.^[19]

Public opinion

Since at least the 1980s, opinion polls have shown a majority of Australians support abortion rights.^[20]

• In a 1987 Saulwick poll, a core of only about 7% of Australians would not approve of abortions under any circumstances.^[21]
• 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".^[22]
• 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.^[23]
• 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.^[24] The study also showed that 77% of winning candidates in the 2007 election favoured an unrestricted approach to abortion.^[25][26]
• 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.^[27] 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.^[28]
• A 2011 study by Kippen, Evans and Gray found that 80% of people were against allowing abortion for sex selection.^[29]

See also

• Abortion by country
• Abortion law
• Child destruction#Australia

References