Is Abortion Legal in Australia?

The legal status of medical abortions in Australia varies widely. This is because health services are generally a matter for the states, meaning each state and territory has its own laws on the matter.

The key thing that all states and territories have in common is that a pregnant woman seeking an abortion can access one after consulting with a doctor. The conditions that must be met before it can happen are the main difference between the different jurisdictions.

Abortions in New South Wales

In New South Wales, abortion is still defined in state law as a criminal offence. However, after a court ruling in 1971 an exception was created where an abortion may be performed lawfully if certain conditions are met. These conditions state that if there is any medical, social, or economic reason that an abortion may be required in order to avoid “serious danger” to the pregnant woman’s life, then it is allowable.

In this context, “serious danger” has been held to be a serious effect on either the physical health, or the mental health of the pregnant woman. The exception to criminality was later extended in the 1990s to also include negative health consequences to the woman that might arise after the birth of the child. The exception also requires a doctor to have a reasonable or honest belief that the abortion being requested was required to avoid the negative effects that might occur.

This interpretation of the law actually renders the criminality of abortion in New South Wales largely ineffective. The exceptions to include potential negative effects in the case of both negative physical and mental effects make the exceptions very broad. It is also very impractical for anyone to prove that a doctor did not honestly or reasonably believe that the request to perform an abortion was justified on those grounds.

The NSW parliament has also indicated through recent law reform that creates “safe spaces” around clinics that provide abortion services that it supports the right of women to make their own choices regarding family planning.

Abortions in Victoria

After 2008, abortions were decriminalised under the Abortion Law Reform Act. This made it legal for pregnant women to request an abortion until the 24th week of their pregnancy. A medical practitioner must be consulted, and they must agree that the procedure is appropriate.

In certain cases, abortions are still accessible after 24 weeks, subject to the condition of two doctors agreeing that it is appropriate, based on their professional judgement.

Victoria has also created rules that make illegal to protest around, or harass those entering, clinics that provide abortion services. These activities are banned within 150 metres of the entrance. These are also called “safe spaces”. In practical terms, it means that a person seeking to enter a clinic can be dropped at or near the entrance and be legally protected against any interference by protesters or unsolicited counsellors.

Abortions in Queensland

As of 1986, the law in Queensland and its interpretation is very similar to that of New South Wales. As in NSW, an abortion may be performed on request should a doctor believe there would be negative medical, economic, or social consequences that would lead to the serious danger of physical or mental consequences to the pregnant woman’s life beyond the normal dangers of pregnancy and childbirth.

Queensland law also states that courts will not grant an injunction (a temporary legal block) to an abortion that is applied for through the court system by any other party, including by family members.

Although abortion is still a criminal offence in Queensland, there have been zero prosecutions relating to the offence for over 30 years.

Abortions in South Australia

South Australia was an early reformer of abortion legislation, with laws passed as early as 1969 legalising abortion on medical grounds including physical or mental health. Since then, access to abortions has remained available up to 22 weeks of pregnancy.

The conditions in South Australia are slightly different to other states. To have an abortion in South Australia, two doctors must agree, and the procedure must be performed in a hospital.

Pregnant women seeking abortions in South Australia must also provide proof that they live in the state, unless it is an emergency situation. The state is also home to some providers that provide the procedure at low or no cost if the need arises.

Abortions in Western Australia

In Western Australia, the legal position was historically the same as applied in Queensland, with abortions available on request pending the same conditions up to 20 weeks. There was one significant difference in 1998, when two doctors were charged with a criminal offence for providing an abortion to a pregnant woman.

The law in the state was subsequently changed. Now, an abortion is essentially available if requested by a pregnant woman, as long as a medical practitioner has advised of the medical risks of the procedure. For instances where the pregnancy is beyond 20 weeks, two doctors must agree that the procedure is safe.

Abortions in Tasmania

As of 2013, abortions can be sought in Tasmania at the request of the pregnant woman, up to the 16th week of the pregnancy. After this time, two doctors must agree that the procedure can be conducted safely.

Tasmania, like Victoria and New South Wales, has enacted “safe space” laws which make it illegal to protest or intimidate persons within 150 metres of a clinic providing abortion services.

Abortions in Australian Capital Territory and Northern Territory

Abortion is legal in both territories. In the ACT, there is no time limit mandated, while in the Northern Territory, it is legal up to the 24th week of the pregnancy. Both territories also have protest-free zones or safe access zones, which are in effect the same as the “safe spaces” in other states.

While reading that abortions are still criminal offences in some states may be confronting it is better to look at the practical results rather than the black and white wording. In practical terms, there is no state or territory in Australia in which a pregnant woman cannot seek an abortion after consulting with a doctor.

 

By Dr Emma Boulton – 18 Jul 2018



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