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Abortion: Law And Practice

Abortion: law and practice

Background

It is interesting that abortion, a widely practiced medical procedure in Australia, is the only medical procedure that is criminalised in this country. Yet, the vast majority of abortions are funded by Medicare, performed by doctors in freestanding clinics and are regulated in the same way as any other medical procedure.

Contemporary surveys show that approximately 81% of Australians believe that the decision about whether to have an abortion is a decision for a woman. Recent national surveys have found that 87% of women aged 18 to 49 support a woman’s right to choose. While Australians who describe themselves as having a religious faith account for the vast majority of those who are opposed to a pro-choice position, 77% of Australians with religious affiliations support a woman’s right to choose.

There has been recent political attention given to the numbers of abortions performed each year in Australia. To minimise the number of abortions, those involved in the area of sexual and reproductive healthcare believe that increased public resources are needed for sex education for teens, access to sexual health services needs to be improved and the issue of contraceptive failure needs to be addressed.

How available are abortion services?

Contrary to popular opinion, abortion is not available to women in NSW as of right or “on demand”.

Women seeking an abortion must fit certain criteria in order to have an abortion in NSW.

A woman (or doctor) who has performed an “unlawful abortion” has potentially committed an offence under the provisions of the NSW Crimes Act 1900: see sections 82 and 83.

When will an abortion be regarded as an ‘unlawful abortion’?

The law has been relatively settled in NSW since 1971 when a District Court Judge, Judge Levine, stated in a criminal prosecution, R v Wald, that an abortion was lawful if a doctor was able to say that in the particular woman’s circumstances, an abortion was required to avoid a ‘serious danger to her life or to her physical or mental health’. The statement of the Judge in this case has become known as “the Levine ruling” and has been applied and confirmed a number of times since in other cases. Most recently the Levine ruling was said to represent the law in the NSW prosecution of Dr Suman Sood: see R v Sood [2006] NSWSC 76 (Ruling No 3) 15 September 2006.

What is the most recent judicial statement of the law?

In a 1995 medical negligence case, CES v Superclinics, Justice Michael Kirby, then of the NSW Court of Appeal and later a Justice of the High Court of Australia, liberalised and extended the original Levine ruling. Justice Kirby’s judgement in that case allows consideration to be given, when determining whether a particular request for an abortion satisfies the legal requirements, to whether a serious danger would follow not only to the woman’s health during the pregnancy but also to her health after the child’s birth.

Justice Kirby’s interpretation of the law in CES v Superclinics now represents the legal position in NSW.

How does the law fit the practice?

It is important that the consultation records relating to the particular woman presenting for an abortion demonstrate that the legal test has been applied to that woman’s circumstances. That is, that questions have been put to her by referring doctors or counsellors at the freestanding clinics which follow and apply the judicial rulings that represent the law.

How does the situation differ in the A.C.T.?

New laws in 2002 removed the statutory provision establishing the crime of “unlawful abortion” in the ACT.

Women in the ACT are able to have abortions “on request”: there are no substantive grounds, such as needing to establish danger to physical or mental health, which need to be satisfied for an abortion to be lawful.

However, there are 2 procedural requirements: one, the abortion must be performed by a registered medical practitioner and two, the abortion must be performed in an approved medical facility.

How does the law deal with ‘second trimester’ (or late term) abortions?

Second trimester (or ‘late term’ abortions) generally refer to abortions performed beyond 20 weeks gestation. Evidence suggests that the proportion of such abortions is very small.

There is a separate crime of ‘child destruction’ in all states and territories except NSW and probably Tasmania. The laws are different in each state and territory and there is considerable confusion as to when the provisions in each jurisdiction might apply. There is no case law to assist and it may be that in some jurisdictions and based on relevant cases from England, the child destruction provisions might protect foetuses as early as 22 weeks of pregnancy.

Does the law need changing?

The fact that the laws in each state and territory are different and clearly outdated, in that the wording of the statutory provisions is based on legislation enacted in England in the nineteenth century, has led some to call for clarification of the law of abortion: see de Crespigny and Savulescu “Abortion: time to clarify Australia’s confusing laws” in Medical Journal of Australia, August 2004.

However, as women will always seek and obtain abortions, many believe that as the law has worked satisfactorily since the early 1970s and there has been a decline in the rates of maternal mortality when the abortion laws were liberalised, that any changes to the current law should be left well alone.

Further reading

  • Public Health Association ‘Abortion in Australia: Public Health Perspectives’, 3rd ed., 2005
  • Abortion Law & Practice
  • ‘Abortion Law in Australia’, National Union of Students Women’s Department 2004
  • CES v Superclinics (Aust) Pty Ltd (1995) 38 NSWLR 47
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