This article on ‘ABORTION LAWS IN AUSTRALIA‘ is written by an intern at Legal Upanishad.
Introduction:
Are abortions legal in Australia by 2022? This article focuses on the Australian Abortion Laws. The abortion laws in Australia have been a matter for the states since before the Federation. Since the Federation, a lot of changes and significant reforms have taken place in the abortion laws in some jurisdictions, but not all. Abortion is legal in every territory and state under a few circumstances and done only by a registered doctor. The abortion laws in Australia differ in each state and territory. In some states, it is necessary to establish a serious risk to the mental and physical health of the woman in case the woman was to continue the abortion.
In a few other states, certification of two doctors is necessary, importantly for abortions at later gestations. The variation and restrictions that are arising regarding abortions are not consistent with the provisions and aims of the universal, health care system that Australia aspired to. There is an urgent need for introducing uniformity and overall reform to Abortion Laws in Australia which includes removing abortion from the criminal law.
History of Abortion laws in Australia:
Abortion Laws in Australia, have an interesting history. In 1988, in Western Australia, abortion was first decriminalized and the last jurisdiction to decriminalize abortion was South Australia in 2021. Since the 1980s, there has been a huge support for abortion in Australia with most of them supporting it. Few activists are against abortion and protest outside the abortion clinics. Laws have been implemented to solve these problems and also prevent anyone from threatening or harassing the Staff members and the visitors within a few radii of the clinics
Abortion Laws in Australia: Queensland
Under the Termination of Pregnancy Bill 2018, abortion has been decriminalized with certain qualifications. Before this act came into the picture, abortion was legal only to prevent serious danger to the woman’s health, if not both the woman and the doctor who performs the abortion are criminally liable. But now, a woman can get an abortion for up to twenty-two weeks of pregnancy and if the medical practitioner consults with another medical practitioner and come to a conclusion that in all circumstances the abortion should be made then, the woman can get an abortion after twenty-two weeks of pregnancy.
If any registered health practitioner is unwilling to perform an abortion, then the objection must be informed to that woman. Then the woman can choose to refer another medical practitioner or service who is willing to perform the termination. Around the termination services, one fifty safe access zones are set up.
Abortion Laws in Australia: NSW
In New South Wales, the new Abortion Law Reform Act 2019 was formed to change the law on abortions. Here, a person giving consent and a person assisting or performing an abortion on themselves do not commit an offense according to section 12 of ALRA. The abortion laws in NSW are reflected in section 82(1) of the Crime Act 1900 which prohibits any unqualified person from doing or assisting the termination of pregnancy by using an instrument or administering a drug or other things on the pregnant woman and the penalty for this is seven years of imprisonment.
According to section 5(1) of ALRA, a medical practitioner is allowed to perform an abortion on a woman who is below twenty-two weeks pregnant. Consent is necessary from that very person or from someone who is authorized to give consent on their behalf except in the case of an emergency. The termination is permitted only if the medical practitioner gives access to counseling and gives necessary information about access to counseling.
One can get an abortion after twenty-two weeks under section 6 of the Abortion Law Reform Act if:
- The medical practitioner considers certain medical circumstances, professional guidelines, and standards. Also, the medical practitioner should obtain advice from the relevant people and confirm the sufficient grounds for abortion.
- He should consult with some other medical practitioner who is a specialist and provide the necessary information. Specialist consent from the woman is also necessary. Under the Health Services Act, the statutory health organization can control the performance of termination at a hospital.
Under the Public Health Amendment Bill 2018, a safe access zone of up to one fifty meters is set up surrounding the clinic premises. Section 98C of this Bill prohibits anyone from threatening or harassing people within one fifty meters. Section 98D prohibits anyone within the one fifty meters zone from blocking the road which leads to the clinic and excludes employees from the clinic.
Section 98E does not allow anyone from recording any person who is within the safe access zone and also prohibits them from publishing that recording without consent. Cameras for security and police taking photos or videos to perform their duty are exceptions in these.
The punishment for all these offenses in NSW is, a term of six months imprisonment and a fine of rupees $5500. Punishments are heavier for the subsequent offense.
Abortion Laws in Australia: Australian Capital Territory
There are certain acts and bills given by the legislation that is available here. They are Medical Practitioners Amendment Act 2002, Health Amendment Bill 2008, and Health Bill 2015. Here, only a registered medical practitioner can perform an abortion and Ministerial approval is necessary. The Health Minister will declare a safe access zone preventing harassment and threats.
Abortion Laws in Australia: Victoria
Abortion is legal in Victoria but abortion performed by an unqualified person is a criminal offense. The Abortion Law Reform Act, allows a woman to get an abortion legally up to twenty-four weeks of pregnancy by a qualified medical practitioner. If a woman wants to abort after twenty-four weeks, then she can get it done if a second legal practitioner agrees to it.
Abortion Laws in Australia: South Australia
The first Australian State to liberalize access to abortion. The legislation here is the Criminal Law Consolidation Act 1935. Abortion is legal in SA under several circumstances and an unlawful abortion leads to criminal penalties.
Abortion is legal if it is done not more than twenty-eight weeks of pregnancy if it takes place in a particular hospital informed by the medical practitioner and if the medical practitioner is in good faith in order to perform the abortion considering the grounds of maternal health and fetal disability. Including all this, a second medical practitioner must have the same opinion as the first medical practitioner for the abortion to be lawful and the woman who wants an abortion must be a resident in SA for at least two months.
Abortion Laws in Australia: Tasmania
After the introduction of the Reproduction Health Bill in 2013, in Tasmania, abortion laws got decriminalized. Here, the abortion can be done up to sixteen weeks, and if more than sixteen weeks, abortion can be legally performed if the medical practitioner agrees. A medical practitioner can show objection to performing the abortion except in emergencies.
After the conscientious objection, they can refer the woman to another medical practitioner who does not object to it if, the woman seeks details about her pregnancy options. If one fails to follow this, one has to face fines.
Abortion Laws in Australia: Western Australia
The legislation that governs abortion in WA is the Criminal Code and the Health Act 1911. Abortion laws here have been decriminalized. Abortion should be done no later than twenty weeks of pregnancy. Women at least sixteen years of age only should be allowed to get an abortion.
This Code allows a woman to get an abortion if it is performed by a medical practitioner in good faith and care, after giving consent, if the woman is going to face serious consequences, danger to physical or mental health if the abortion is not done. If unlawfully performed, then one has to face a fine of $50,000.
Abortion Laws in Australia: Northern Territory
The NT abortion law is the Termination of Pregnancy Law Reform Act 2017. The service of abortion is legally available up to fourteen weeks gestation if the doctor thinks it is reasonable and it is also available if a second doctor approves up to twenty-three weeks. Safe access zones of one fifty meters are provided around the clinic and prohibit harassing, threatening, and recording.
Conclusion:
Abortion laws are very important in a country to regulate abortion legally and reasonably. There are different abortion laws in Australia available for each state. In this article, we looked into various abortion laws in various states like Victoria, WA, Queensland, SA, NT, Australian Capital Territory, Tasmania, and NSW in Australia and how the laws are applicable, to whom, and the fines if not followed.
References:
- Jimmy Singh, (2021, November 23), Abortion laws in Australia – complete guide Retrieved: https://www.mondaq.com/australia/healthcare/1134400/abortion-laws-australia–complete-guide
- Australian Abortion Laws Retrieved: https://www.childrenbychoice.org.au/factsandfigures/australianabortionlawsandpractice