Is Abortion Legal in Australia?

 

The decision of the US Supreme Court, to overturn the landmark decision of Roe v Wade, has caused controversy worldwide.

The US Supreme Court recently voted to strike down the decision that ruled that the US Constitution protects a pregnant woman’s choice to have an abortion.

The case protected the right to abortion in many US states, with its overturn enabling the outlawing of abortion in over 26 states.

Ultimately, the power to legislate on the topic remains with the varied US states.

In Australia, abortion is legal in all states and territories, provided it is conducted under certain conditions by a registered doctor.

The main two types of abortions conducted in Australia are ‘medical’ or ‘surgical’.

Broadly, a medical abortion involves medication to terminate a pregnancy, rather than surgery.

Around one in three Australian women will choose to have an abortion, in their lifetime.

Abortion in New South Wales was legalised in October 2019, following Abortion Law Reform Act 2019 (NSW), being passed through parliament.

The passage of the act removed the offence which criminalised pregnant women who ‘procured’ a miscarriage, which was punishable with up to 10 years imprisonment.

This has now been repealed and replaced with an offence which criminalises unqualified persons performing terminations.

A maximum penalty of 7 years imprisonment is applicable, pursuant to section 82 of the Crimes Act 1900 (NSW).

An unqualified person includes where a person is not a medical practitioner.

A woman is now permitted to chose to have an abortion, without any approval or determination from a medical practitioner, as long as the pregnancy is under 22 weeks in duration, and she gives informed consent, as per section 5 of the Abortion Law Reform Act 2019 (NSW).

After 22 weeks, two specialists must determine that there are ‘sufficient grounds’ for a termination, although the two-doctor requirement will not apply in an emergency.

Whilst health practitioners are entitled to a conscientious objection to perform abortions, they must direct patients seeking one to a health service provider who can provide one.

It is an offence to harass, intimidate, threaten, obstruct, impede, or cause distress or anxiety to a person within 150 metres of a reproductive health clinic at which abortions are provided.

As per section 98C of the Public Health Act 2010 (NSW), a maximum penalty of a $5,500 fine and/or 6 months imprisonment is applicable for a first offence, whereas a $11,000 fine and/or 1 year imprisonment is applicable for a second or subsequent offence.

It is also an offence to intentionally take a photo of or film someone accessing a reproductive health clinic at which abortions are provided.

The aforementioned maximum penalties are applicable, as per section 98E.

In NSW, if an accused person destroys or intends to destroy a foetus, they may be charged with an offence covering the infliction of ‘grievous bodily harm’.

As per section 4 of the Crimes Act, ‘grievous bodily harm’ includes the destruction (other than during a medical procedure or lawful abortion) of the foetus of a pregnant woman, whether or not the woman suffers any other harm.

Grievous bodily harm also includes permanent or serious disfiguring of the person or any grievous bodily disease. Courts have come to consider it as ‘any really serious injury’ (Kbayli [2017] NSWDC 197).

A person who causes grievous bodily harm with intent to do so, faces a maximum penalty of 25 years in jail, pursuant to section 33 of the Crimes Act.

Abortion in the Australian Capital Territory was decriminalised under the Crimes (Abolition of Offence of Abortion) Act 2002(ACT).

Abortion is legal up to 16 weeks’ gestation and must be performed by a doctor or a nurse, provided that informed consent is given.

After 16 weeks, the patient will need to travel interstate to have the procedure performed.

If an abortion is not carried out by a doctor in an approved medical facility, a maximum penalty of 5 years imprisonment is applicable as per Division 6.1 of the Health Act 1993 (ACT).

In the ACT, doctors are entitled to raise a contentious objection, and not perform abortions.

However, unlike in other states, they not required to assist the patient by referring them to another practitioner.

It is an offence to harass, hinder, intimidate, interfere with a patient, or staff member of a clinic, or protest against abortions, within 50 meters of a medical facility that performs abortions.

A maximum penalty of a $4,000 fine is applicable.

Abortion in Victoria was decriminalised in October 2008, following the passage of the Abortion Law Reform Act 2008 (VIC).

If informed consent is provided, abortions are able to be performed up to 24 weeks, as per section 4.

After 24 weeks, two doctors must approve the procedure, deeming that it is appropriate in all the circumstances.

Medical practitioners are entitled to a conscientious objection to abortion, however, must refer a patient to an appropriate practitioner, as per section 8.

It is an offence for a person, who is not qualified, to perform an abortion.

A maximum penalty of 10 years imprisonment is applicable, as per section 65 of the Crimes Act 1958 (VIC).

As per the Public Health and Wellbeing Amendment (Safe Zones) Act 2015 (VIC), it is an offence to harass, intimidate, interfere with, cause distress or anxiety, or intentionally record a person accessing or leaving a health or fertility clinic which provides abortions, within 150 metres.

A maximum penalty of a $21,808.80 fine or 12 months imprisonment, as per section 185D.

Abortion in Queensland was decriminalised via the Termination of Pregnancy Act 2018 (QLD).

Provided that a patient provides informed consent, abortions can be performed at up to 22 weeks, as per section 5.

After 22 weeks, two doctors must approve the procedure.

It is an offence for an unqualified person to perform, or assist with, a termination on a woman.

A maximum penalty of 7 years imprisonment is applicable, as per section 319A of the Crimes Act 1899 (QLD).

A person is prohibited from deterring another from accessing a premises which conducts pregnancy terminations, within 150m of the clinic.

It is also prohibited to record a person while the person is in, or entering or leaving, termination services premises.

A maximum penalty of a $2,757 fine or 1 years imprisonment is applicable, as outlined in sections 15 and 16 of the Termination of Pregnancy Act 2018 (QLD).

Whilst abortion is legal in Western Australia, it remains one of the most restrictive schemes in Australia.

Abortions can be performed at up to 20 weeks with the approval of two doctors, as per section 334 of the Health Act 1911 (WA).

Termination after 20 weeks has to be approved by a panel of six doctors, termed an ‘ethics panel’.

The Act stipulates that abortions may only be conducted where the woman provides informed consent, and would suffer personal, family, or social consequences if the abortion is not performed or serious danger to their physical or mental health.

Performing an unlawful abortion carries a maximum penalty of a $50,000 fine.

Furthermore, if the person conducting the unlawful abortion is not a medical practitioner, a maximum penalty of 5 years imprisonment is applicable, as outlined in section 199 of the Criminal Code Act Compilation Act 1913 (WA).

‘Safe access zones’ surrounding clinics that provide abortions, were only recently legislated in WA in 2021.

It is an offence to harass, intimidate, interfere with, threaten, or impede a person accessing or leaving premises at which abortions are provided.

It is also an offence to communicate by any means in relation to abortion which is reasonably likely to cause distress or anxiety, including via protest, within 150m of a clinic.

A maximum penalty of 1 year imprisonment and a $12,000 fine is applicable, as per section 202P of the Public Health Act 2016 (WA).

In South Australia, laws to decriminalise abortion were passed through parliament in February 2021.

The laws will come into effect early July 2022.

The changes will remove abortion from the Criminal Law Consolidation Act (SA) and make it apart of health-related law.

The Termination of Pregnancy Act 2021 (SA) removes the need for women to provide a reason for a termination if they are no more than 22 weeks and six days pregnant.

However, a consultation with one medical practitioner is required.

Previously, two medical practitioners had to be of the view that the pregnancy would risk the physical health, mental health, or life of the woman, or that the baby would be born with serious physical or mental abnormalities and be severely handicapped.

Beyond 22 weeks and six days, a consultation with two medical practitioners, who agree that termination is suitable, is required.

It remains an offence for an unqualified person to perform a termination.

The applicable maximum penalty is 7 years imprisonment, as per section 14(1) of the Termination of Pregnancy Act 2021 (SA).

It is also an offence for an unqualified person to assist in a termination, with an applicable maximum penalty of 5 years imprisonment, as per section 14(2).

It is an offence to threaten, intimidate, obstruct from entering or leaving, record, or cause distress or anxiety to a person within 150m of a premises at which abortions are lawfully performed.

The offence carries a maximum penalty of a $10,000 fine or imprisonment for 12 months, as per section 48D of the Health Care (Safe Access) Amendment Act 2020 (SA).

In the Northern Territory, abortion was decriminalised in 2017, following assent of the Termination of Pregnancy Law Reform Act 2017 (NT).

However, there remains various conditions, with the act only permitting abortion where a medical practitioner considers it necessary or appropriate.

A medical practitioner may perform a termination on a woman who is not more than 24 weeks pregnant, if they believe that the procedure is appropriate when considering all relevant medical circumstances, the woman’s current and future physical, psychological, and social circumstances and professional standards and guidelines.

If performing a termination beyond 24 weeks, the medical practitioner must consult with at least one other medical practitioner who has assessed the woman, and they both agree it is appropriate, in accordance with the aforementioned factors.

Whilst medical practitioners are entitled to have a conscientious objection to terminations, they must refer the patient to a doctor who does not.

It remains an offence for an unqualified person to perform an abortion, with offenders facing a maximum penalty of 7 years imprisonment, as per section 208A of the Criminal Code Act 1983 (NT).

It is an offence to harass, hinder, intimidate, obstruct, or record a person within 150m of a premises that provides abortions.

A maximum penalty of a $15,700 fine or imprisonment for 12 months is applicable, as outlined in section 14 of the Termination of Pregnancy Law Reform Act 2017 (NT).

The same penalty applies to those who intentionally or recklessly publish a recording of another person that was made without the person’s consent and shows the other person entering or leaving or attempting to enter or leave premises used for performing abortions.

In Tasmania, abortion was decriminalised in 2013, following the commencement of the Reproductive Health (Access To Terminations) Act 2013 (TAS).

Abortions can be performed, upon request, at up to 16 weeks.

After 16 weeks, two doctors must approve the procedure, where they find that there is sufficient medical or psychological grounds, as per section 5.

Medical practitioners do not have a duty to conduct terminations if they conscientious objection.

However, they must perform one in an emergency if a termination is necessary to save the life of a pregnant woman or to prevent her serious physical injury.

It is an offence to intentionally or recklessly performs a termination on a woman without the woman’s consent, whether or not the woman suffers any other harm, as per section 178E of the Criminal Code Act 1924 (TAS).

Furthermore, it is an offence to perform a termination, if the person is not a medical practitioner or the pregnant woman herself, as per section 178D of the Criminal Code Act 1924 (TAS).

The maximum penalty applicable is imprisonment of up to 21 years or a fine.

As per section 9 of the Reproductive Health Act 2013 (TAS), it is an offence to harass or intimidate staff or patients within 150 metres of an abortion clinic, including by protesting or recording those attending the clinic.

The offence carries a maximum penalty of a $31,325 fine or 12 months imprisonment.

About Poppy Morandin

Poppy Morandin is the managing law clerk and an integral part of the team of criminal lawyers at Criminal Defence Lawyers Australia . She's also a part of CDLA's content article production team. Poppy is passionate about law reform and criminal justice.

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