Abortion Is No Longer a Crime in Australia

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Pregnant woman holding test

The South Australian Government passed the Termination of Pregnancy Bill 2021 last week, bringing the state into line with all other jurisdictions around Australia.

The new law means that terminating a pregnancy is no longer a criminal offence in that state, but will be regulated under other laws.

Under the new regime, an abortion can be performed by one medical practitioner up to 22 weeks and six days gestation.

After that time, 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.

Those circumstances could include where a life is at risk, where there’s a serious foetal anomaly or where there is a serious risk to a patient’s physical or mental health.

The South Australian laws include provisions similar to those in New South Wales, which prohibit “sex-selective” abortions.

Making history

The passing of the legislation was described as an historic moment for South Australia, but it is also an historic moment for the entire nation because now, in all states and territories, women can safely access abortions without the stigma of knowing that terminating a pregnancy can amount to a crime.

It has taken a long time to formally legalise abortion in Australia, with Western Australia being the first jurisdiction to do so in 1998, and other states slowly followed suit.

New South Wales only recently legalised the procedure and now, South Australia is the last jurisdiction to do so.

It’s estimated that around half of all pregnancies in Australia are unplanned, and that about half of those are terminated.

The World Health Organisation estimates that even if all contraceptive users used contraception perfectly in every sexual encounter, there would still be six million unplanned pregnancies every year.

‘Backyard abortions are illegal’

In each of Australia’s states and territories, new criminal laws have been enacted which prevent unqualified people from performing abortions, sometimes known as ‘backyard abortions’ with punishment ranging from five to ten years’ imprisonment.

In New South Wales, the new section 82 of the Crimes Act 1900 prescribes a maximum penalty of 7 years’ imprisonment for an ‘unqualified person’ to perform, or assist in the performance of, a termination of pregnancy.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

  1. You were an unqualified person, and
  2. You performed a termination on another person, or you assisted in the performance of a termination on another person.

An ‘unqualified person’ in relation to performing a termination is a person who is not a ‘medical practitioner’.

A medical practitioner is defined as:

A person registered under the Health Practitioner Regulation National Law to practise in the medical profession, other than as a student.

An ‘unqualified person’ in relation to assisting a termination is a person other than a medical practitioner, nurse, midwife, pharmacist or Aboriginal and Torres Strait Islander health practitioner.

A ‘termination’ is the intentional termination of a pregnancy in any way, including:

  1. By administering a drug, and
  2. By using an instrument or other thing.

Assisting in the performance of a termination includes:

  1. Supplying, or procuring the supply of, a termination drug, and
  2. Administering a termination drug.

Defences to the charge include duress necessity.

While nationwide the laws do provide women with greater choice and better access to information and services, many working within womens’ health services say there are still barriers that need to be overcome, particularly when it comes to surgical abortion.

Despite new laws, barriers to access still exist

Typically, abortion takes two forms. Non-surgical, with women being prescribed a pill called RU486, which they can take at home. It is a combination of Mifepristone and Misoprostol but only works effectively up until 9 weeks of pregnancy.

The other option is a surgical abortion, which needs to be performed by a medical professional. At present, there are sometimes long waiting lists for surgical abortions and women outside of metropolitan areas tend to have to travel to have one performed. Last year during lockdowns, many women  struggled to access services when they needed them.

Cost can be a barrier too, even with Medicare subsidies and costs vary from location to location.  And many women say that despite the laws, stigma still exists.

With laws in place, the  push is now on for Governments to invest in making access to pregnancy termination services easier across both urban and rural and remote areas, standardising costs and improving services overall.

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Sonia Hickey

Sonia Hickey is a freelance writer, magazine journalist, and owner of 'Woman with Words'. She has a strong interest in social justice and is a member of the Sydney Criminal Lawyers® content team. Sonia is the winner of the Mondaq Thought Leadership Awards, Spring 2022.
Ugur Nedim

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with 25 years of experience as a Criminal Defence Lawyer. He is the Principal of Sydney Criminal Lawyers®.

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