Abortion in Australia - State-by-State Legal Situation

State-by-State Legal Situation

• Australian Capital Territory: Abortion law in the Australian Capital Territory was for many years governed by case law under the Crimes Act 1900 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 (itself derived from the Victorian Menhennitt ruling of 1969), 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 extended the period during which health concerns might be considered from the duration of pregnancy to any period during the woman's life. This arguably precludes any successful prosecutions for illegal abortions. Despite this, 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.
• 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 woman'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 mentally 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 woman'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 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. Abortions are carried out as "therapeutic miscarriages", performed by specialists, upon request of the patient after an appointment with their local GP. This procedure is only applicable on pregnancies < 22 weeks and is partly covered by Medicare or more-so by private healthcare insurers. In addition to this, abortions can be performed if a fetal defect is considered to be "inconsistent with life" – this has been narrowly interpreted to mean that the newborn would die immediately or shortly after birth.
• South Australia: Legislation in 1969 legalised abortion in South Australia 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. 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. In reality, abortions in South Australia are available for free and in many cases on the spot at the Pregnancy Advisory Centre. This facility is a registered hospital with multiple doctors available for approval and residency requirements are not checked against ID. Both medical and surgical abortions are performed.
• 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: Until 2008, Victorian abortion law was based on the Victorian Crimes Act as interpreted by the Menhennitt ruling of 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. Sweeping changes to abortion laws were legislated in 2008 after Premier John Brumby announced "our existing laws are out of step with community sentiment." Legislation to decriminalise abortion up to 24 weeks (with abortions after that time requiring two doctors to agree that it is appropriate, based on the women's current and future physical, psychological and social circumstances) passed the Lower House 49–32 after a conscience vote. It then proceeded to the Upper House where it was passed unamended (23 votes to 17).
• Western Australia: Abortion law in Western Australia apparently mirrored that of Queensland, though it was 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 20 May 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 practitioner other than the one performing the abortion – or when serious personal, family or social consequences will result to the woman if an abortion is not performed, when the life or physical or mental health of the woman is endangered and when the pregnancy causes serious danger to the woman'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. 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.