Abortion in Australia
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Abortion in Australia remains a subject of state law rather than national law, unlike any other country (with the possible exception of the United States). The grounds on which abortion is permitted vary from state to state. In every state, abortion is legal to protect the life and health of the mother - though life and health are defined differently in the different states.
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.
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 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 Theraputic 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 the sixteenth of February 2006 was 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.
Anti-abortion groups exist in Australia, and stage small protests outside clinics providing abortions. Conversely, some groups seeking the explicit legalisation of abortion, and the legalisation of RU486, exist. 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 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
- 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, 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 expanded the period during which health concerns might be considered from the duration of pregnancy to any period during the mother's life, essentially precluding any successful prosecutions for illegal abortions.
- 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 mother'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 mother'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 mother 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.
- South Australia: Legislation in 1969 legalised abortion in South Australia when necessary to protect the life or physical or mental health of the mother - 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: Victorian abortion law is based on the Victorian Crimes Act as interpreted by the Menhennitt ruling of 1969. Under the ruling, abortions are legal if necessary to preserve the mother 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 Victoria closely mirrors the law in Queensland.
- 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 mother if an abortion is not performed, when the life or physical or mental health of the mother is endangered and when the pregnancy causes serious danger to the mother'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.