Abortion in Australia

Abortion-related violence is rare in Australia. The first serious attack and murder by an anti-abortion activist occurred in 2001, carried out by Peter Knight. Knight forced his way into a Melbourne clinic carrying a rifle, kerosene, and equipment to lock the doors of the clinic. He was intending to murder all patients and staff in the building, though was overpowered after shooting and killing a security guard. Anti-abortion activists had been protesting outside the clinic, though left 15 minutes before Knight's attack. Knight, described by the prosecution as a "hermit obsessed with killing abortion doctors", was convicted of murder and sentenced to life imprisonment.[26][27] In January 2009, a firebombing using Molotov cocktails was attempted at a medical clinic in Mosman Park, Western Australia. Damage was minimal and only resulted in smashed windows and blackened external walls. Police believed graffiti saying "baby killers" on the building was related to the attack; however, the medical clinic did not actually offer abortion services.[28][29]

Since at least the 1990s, tactics used by anti-abortion campaigners outside abortion clinics included "verbal abuse, threats, impeding entry to clinics, displaying violent imagery and acts of 'disturbing theater' such as pushing a blood-splattered doll in a pram."[1] In response, states and territories began creating "safe access zones", which prevent protesting about abortion within a proscribed area surrounding a clinic.[1] Tasmania was the first state to do so in 2013.[30] In April 2019, the High Court of Australia upheld these laws after they were challenged by two people arrested for violating them. The petitioners claimed their right to freedom of political communication had been denied as a result of the laws, though the court dismissed the appeals, saying the laws served a legitimate purpose.[31] In August 2021, Western Australia became the last state to introduce safe access zones. In the months prior, patients at abortion clinics in that state were continuing to be approached and intimidated by protesters; footage was also obtained of anti-abortion campaigners protesting outside a Western Australian clinic at the height of the COVID-19 pandemic, despite social distancing guidelines at the time.[32]

Abortions are partially funded under Medicare, the federal government-funded public health scheme, which as of 2015 effectively halved the cost of surgical abortion,[3] or by private healthcare insurers, which are also regulated by the federal government. The federal government also provides funding to public hospitals and can thereby influence abortion policy and practice. Abortions and abortion advice are regarded as health services and are exempt from the Goods and Services Tax (GST).

In the Australian Capital Territory (ACT), references to abortion as a criminal offence were repealed by the Crimes (Abolition of Offence of Abortion) Act 2002. Before then abortion law was for many years governed by case law under sections 82–84 of the Crimes Act 1900 of New South Wales. Abortion care is now regulated under the framework of health law, standards, policies and professional ethics that apply to all healthcare. There is no gestational limit preventing an abortion in the ACT.[35]

Since March 2016, it has been an offence to protest within 50 m of an abortion clinic within the Australian Capital Territory (otherwise called "protest free zones").[53][54]

Since 20 April 2023, abortion is free or at no cost for official Australian Capital Territory residents, a legal first for an Australian jurisdiction.[34][55]

Abortion was decriminalised in New South Wales on 2 October 2019 with the royal assent of the Abortion Law Reform Act 2019, passed a week earlier by both houses of the New South Wales parliament.[40][56] The legislation took abortion out of the 119-year-old criminal code and regulated it as a medical procedure.

Under the new law, abortions are made available on request during the first 22 weeks of gestation. After that time, two doctors must agree that it is appropriate, based on the woman's current and future physical, psychological and social circumstances. This is similar to laws in other states and territories. However, the medical practitioner performing the abortion has obligation to give appropriate medical care if the abortion results in a live baby being born.[56]

Prior to the new law, abortion had been explicitly listed in New South Wales as a crime under sections 82–84 of the Crimes Act 1900 (NSW) since 1900,[57] but the interpretation of the law is subject to the Levine ruling, from R v Wald of 1971,[5] itself derived from the Victorian Menhennitt ruling, which held an abortion to be legal if a doctor had an honest and reasonable belief that, due to "any economic, social or medical ground or reason", the abortion was necessary to "preserve the woman involved from serious danger to her life or physical or mental health which the continuance of the pregnancy would entail".[5]

This was expanded by CES v Superclinics Australia Pty Ltd (1995),[58] which extended the period during which health concerns might be considered from the duration of pregnancy to include the woman's future health and well-being. In 2006, Dr. 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.[59][60]

In June 2016, Greens upper house MP Dr Mehreen Faruqi was to introduce a bill decriminalising abortion in NSW. However, on the eve of the introduction of the bill on 23 June 2016, it was removed from the order of business for the following day, despite being first in the order of precedence for months, scheduled and publicly announced.[61][62]

In August 2016, Mehreen Faruqi released an exposure draft of the Abortion Law Reform (Miscellaneous Acts Amendment) Bill 2016 to "Repeal sections 82–84 of the Crimes Act, relating to abortion offences; Provide for a 150 metre safe access zone around abortion clinics and service providers to ensure a patient's right to medical privacy; and Require doctors to disclose conscientious objection at the start of the consultation and refer patients to another doctor who does not have such an objection or to the local Women's Health NSW centre".[63] The bill was introduced to the upper house on 11 August 2016.[64] It was defeated in the second reading 25–14 on 11 May 2017.[65]

Since 1 July 2018, it has been illegal to protest within 150 metres of an abortion service.[41][42]

In the Northern Territory, abortion requires the approval of two doctors after 24 weeks' gestation. Surgical and medical abortion are available in the public health system.[66] This is unusual in Australia where abortion services are frequently outsourced to private providers.[67]

The Termination of Pregnancy Law Reform Act[68] was enacted on 1 July 2017 and removed the need for two doctors to examine a woman before 14 weeks gestation, implemented a 150-metre "safe access zone" around clinics, removed the requirement of parental approval for the procedure and provided the ability for the prescription of medical abortion tablets.[69] The Interpretive Report 2018 recorded 742 abortions in the previous 12 months with 73% being medical abortion with tablets before 9 weeks gestation, the remaining 27% were conducted in hospital. Since the legislative change, 99.33% of terminations of pregnancy were conducted under 14 weeks of gestation.[70] This has also meant that the waiting time in a public hospital for a surgical termination has reduced which has policy and public health economic implications.[71]

In December 2021, the Northern Territory eased restrictions on abortions, allowing access between 14 and 24 weeks with the approval of one doctor instead of the previous two required. They also legalised terminations after 24 weeks with the approval of two doctors, removing the previous provision which stated abortions were only legal after 24 weeks to save a woman's life.[44]

Since 3 December 2018, abortion in Queensland has been available on request during the first 22 weeks of gestation. After that period, two doctors must sign off on the procedure before a woman can access an abortion unless there is a danger to the life of the woman or, in a multiple pregnancy, another unborn child.[72][73]

Prior to December 2018, abortion access in Queensland was determined by the 1986 McGuire ruling, which 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. The McGuire ruling was affirmed in the 1994 case Veivers v. Connolly, by a single judge of the Supreme Court of Queensland.[2]

In South Australia, South Australian residents up to 23 weeks pregnant can have an early medication or surgical abortion. Safe access zones of 150 metres provided around abortion clinics effective since 1 January 2021.[49][74]

Legislation in 1969 legalised abortion 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.[75] Abortions must be performed before a time limit of 28 weeks of pregnancy. Abortions must be performed in a hospital and be approved by two physicians, and are also subject to a residency requirement (patient must be a resident of South Australia for at least two months). The hospital, dual approval and residency requirement may be waived in an emergency. Abortions in South Australia are available for free or low cost at some of the public health facilities including The Pregnancy Advisory Centre.[76] This Pregnancy Advisory Centre is a registered hospital with doctors available for approval. Both medical and surgical abortions are performed.

A bill fully decriminalising abortion was introduced into the state parliament in October 2020.[77] Under the legislation, abortion can be performed upon request up to 22 weeks and six days gestation. After that period, a medical practitioner can only perform an abortion if they consult with another practitioner and if both are of the view that the procedure is medically appropriate. The reform removed abortion entirely from the criminal code. The Legislative Council passed the bill on 3 December 2020,[78] as did the House of Assembly on 19 February 2021 by 29 votes to 15.[79] As an amendment banning so-called "gender selective abortion" was passed by the Assembly,[79] the amendments were agreed to by the Legislative Council on 2 March 2021 and received royal assent on 11 March 2021. The legislation required further regulations to be issued by the government in order to come into effect. The government published the regulations on 23 June 2022; which came into effect on 7 July 2022.[80][81][82] Health Minister Chris Picton criticised the former Liberal government, which was defeated by Labor at the March 2022 state election for "delay[ing] and bury[ing] these regulations and failed to explain to the community why they did not progress them".[81]

In Tasmania, since 21 November 2013, abortions are allowed on request up to 16 weeks of pregnancy. After 16 weeks abortion requires the consent of two doctors on medical or psychological grounds. The law also prohibits filming, the holding of protests, harassment or intimidation of patients or staff within 150 metres of abortion clinics.[83][84][85]

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 Menhennitt ruling of 1969 and New South Wales' Levine ruling applied in 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.

The availability of abortion facilities in the state is limited. The state's public health system provides abortion services in only extraordinary circumstances (e.g. in cases of foetal abnormality), so most women access pregnancy terminations through the private sector. In 2017, the state's only dedicated low-cost surgical abortion clinic closed. Some women chose to fly interstate for pregnancy terminations.[86]

In Victoria, since 2008, abortions are allowed on request up to 24 weeks of pregnancy, with abortions after that time, up until the child's birth, requiring two doctors to agree that it is appropriate, based on the woman's current and future physical, psychological and social circumstances.[87][88]

Before 2008, abortion law was based on the Victorian Crimes Act, as interpreted by the Menhennitt ruling in 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. Menhennitt's ruling remained the basis for abortion law in Victoria until the Abortion Law Reform Act 2008 (Vic) decriminalised abortions up to a gestational limit of 24 weeks.

In Western Australia, from May 1998, abortions became legal on request (with a referral from a doctor) up to 20 weeks of pregnancy, though subject to counselling by a medical practitioner other than the one performing the abortion. After 20 weeks of pregnancy abortions were only able to be performed if the foetus was likely to be born with severe medical problems, which needed to 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.[36]

In September 2023, progressive abortion reforms were made, which included fully removing abortion from the criminal code, and reducing the number of doctors needed to approve most abortions from two to one. The need for mandatory counselling was also removed, and the time at which additional requirements for abortion apply was increased from 20 weeks gestation to 23 weeks.[89]

Western Australia was the last jurisdiction in Australia not to have safe access zones. A bill to create safe zones within 150 metres of abortion clinics was formally passed in August 2021 and went into legal effect from 1 September on assent.[52] A 2020 report by the Western Australian Department of Health found that 70% of people approved of safe access zones.[32]

When abortion began to be legislated in 1969, some Indigenous Australians women were among those opposing it, on the incorrect belief it would lead to "coerced abortion and sterilization".[112] This attitude is believed to have been influenced by previous government interference in Indigenous autonomy, including the Stolen Generations.[113] As of the mid 2010s, more Indigenous women were choosing to have abortions,[114] though stigmatisation around the issue is still prominent within many Indigenous communities.[115]