Abortion in Australia
|This article is outdated. (November 2010)|
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.
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 clinically 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.
RU-486, a drug widely used overseas to induce abortions, was effectively banned in Australia until February 2006. 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 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 and passed in March 2006, removing the veto power from the health minister and granting authority to the Therapeutic Goods Administration. 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.
Anti-abortion groups exist in Australia, and 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" and has proposed the addition of a Medicare item number for counselling to lower the national abortion rate. Abbott later pledged to make no changes to abortion law, before becoming Prime Minister.
The violence seen in the United States against abortion providers has 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. On January 6, 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.
Due to the lack of consistent data collection standards across states, it is difficult or impossible to accurately quantify the number of abortions performed in Australia each year. 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.
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.
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.
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) claimed in 2004 that 100,000 women choose to end their pregnancy annually.
State-by-state legal situation
- Australian Capital Territory: Abortion law in the Australian Capital Territory was for many years governed by case law under the Crimes Act 1900 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, 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.
- 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 mentally 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. Until 2008, abortion law in Queensland closely mirrored the law in Victoria. 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. In reality, abortions in South Australia are available for free and in many cases on the spot at the Pregnancy Advisory Centre. 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: 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. On November 21, 2013, Tasmania became the third jurisdiction in Australia to decriminalise abortion, removing the procedure from the criminal code after the Legislative Council approved a private member's bill by a 9-to-5 margin. The new law allows for terminations until the 16th week of pregnancy, with later pregnancies requiring the 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.
- 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 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. Sweeping changes to abortion laws were 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 woman'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 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. The bill passed, subject to certain amendments, on 20 May 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 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. 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.
Since at least the 1980s, opinion polls have shown a majority of Australians support abortion rights.
- In a 1987 Saulwick poll, a core of only about 7% of Australians would not approve of abortions under any circumstances.
- 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".
- 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.
- 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. The study also showed that 77% of winning candidates in the 2007 election favoured an unrestricted approach to abortion.
- 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. 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.
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