Abortion in Australia

Abortion in Australia remains 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 partner. There is also no enforced waiting period for an abortion. Except in Western Australia, a minor does not require parental consent or notification (see discussion at the Gillick article, which was imported into Australian law by the High Court in 1992).

History

At Federation in 1901, abortion remained governed by the British Offences Against the Person Act of 1861. The Act made abortion illegal under any circumstances. Since then, however, abortion law has remained subject to case law and legislation in each of the states.

Generally, judicial interpretations changed in the late 1960s and early 1970s such that abortions were not subject to criminal prosecution if necessary to preserve the mother's health. Over time this has come to be broadly defined so as to include the mental health of the patient, to which an unwanted pregnancy is interpreted as injurious.

In practice, early-term surgical abortions are generally available around Australia for those women who seek them. The procedure is partially rebatable under Medicare, the government-funded public health scheme. 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.

RU486, a drug used widely overseas to induce abortions, was until February 2006, effectively banned in Australia. This was because of a deal in the Federal Senate between pro-life 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 would have to be obtained before the drug could be assessed by the Therapeutic Goods Administration.

In early 2006, a private members bill was introduced in the Senate to strip the health minister of their power of veto over abortifacients. This bill was approved by both houses of parliament, but as of February 16, 2006 it is still awaiting assent. 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.

Pro-life groups exist in Australia, and stage protests outside clinics providing abortions. Conversely, some groups seeking the explicit legalisation of abortion. 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" and has proposed the addition of a Medicare item number for counselling to lower the national abortion rate.

The violence seen in the United States against abortion providers has not occurred in Australia, with one exception. 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 a security guard. Afterwards, Knight, described by the prosecution as a "hermit obsessed with killing abortion doctors" was convicted of murder [1].

State-by-State legal situation

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: Abortion law in the Australian Capital Territory was for many years governed by case law and the criminal code of New South Wales. However, in 2002, it became the first jurisdiction in Australia to legalise abortion in full, when the Stanhope ALP government, with the assistance of Green and independent members, passed the Crimes (Abolition of Offence of Abortion) Act 2002, removing abortion from the criminal statute books altogether.

• New South Wales: Abortion law in New South Wales is primarily based upon the Levine ruling of 1971 (itself derived from the Victorian Menhennitt ruling of 1969), which declared 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, which extended the period during which health concerns might be considered from the duration of pregnancy to any period during the woman's life. This arguably precludes any successful prosecutions for illegal abortions. Despite this, in 2006 abortionist Suman Mood 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.

• Northern Territory: Legislation in 1974, based on earlier legislation in South Australia and the United Kingdom, legalised abortion in the Northern Territory 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 mental handicapped. The abortion must be approved by two medical practitioners and must be performed in a hospital. Abortions must be performed during the first fourteen weeks of pregnancy, except when there is a case of serious risk to the woman's health, when abortions are allowed up to the 23rd week.

• Queensland: The McGuire ruling of 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. Abortion law in Queensland closely mirrors the law in Victoria. That being said, 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 on pregnancies < 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 fetal 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.

• South Australia: Legislation in 1969 legalised abortion in South Australia 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.

• Tasmania: 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 (see below) and New South Wales' Levine ruling (above) was applicable for 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 above.

• Victoria: Until 2008, Victorian 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 are 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. Abortion law in Queensland closely mirrors the law in Victoria. Sweeping changes to abortion laws are set to be legislated in 2008 after Premier John Brumby announced "our existing laws are out of step with community sentiment." Legislation to decriminalise abortion up to 24 weeks (with abortions after that time requiring two doctors to agree that it is appropriate, based on the women's current and future physical, psychological and social circumstances) passed the Lower House 49-32 after a conscience vote. It then proceeded to the Upper House where it was passed unamended (23 votes to 17) .

• Western Australia: Abortion law in Western Australia apparently mirrored that of Queensland, though 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. The bill passed, subject to certain amendments, on May 20, 1998, and was the most wide-ranging liberalisation of Australian abortion laws until the 2002 legislation in the Australian Capital Territory. It allowed abortions to be performed up to 20 weeks of pregnancy on request - subject to counselling by a medical practictioner 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. Abortions after 20 weeks of pregnancy 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.

Public opinion

Main article: Societal attitudes towards abortion

• 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.

• 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 or health, were "about right," 16% want changes in law to make abortion "more accessible," and 17% want changes to make it "less accessible."

See also

• Abortion
• Abortion by country
• Abortion law