Abortion Laws In Australia: Understanding The Legal Landscape

Abortion is now legal across Australia, with Western Australia becoming the final state to decriminalise the procedure in September 2023. However, access to abortion services varies across the country, with different rules and levels of access in each state and territory. While medical abortions are available in all states and territories until nine weeks' gestation, the availability of surgical abortions varies from 16 weeks in the Australian Capital Territory to 24 weeks in Victoria.

Abortion law in the Australian Capital Territory

Abortion in the Australian Capital Territory (ACT) is unique in that it is the only jurisdiction in Australia with no gestational limit on abortions. Abortion in the ACT is legal, free, and accessible. It must be provided by a medical doctor and can only be carried out within an approved medical facility. The ACT Health Minister must give their approval for any facility where surgical abortions are provided.

In the ACT, references to abortion as a criminal offence were repealed by the Crimes (Abolition of Offence of Abortion) Act 2002. Abortion care is now regulated under the framework of health law, standards, policies, and professional ethics that apply to all healthcare. Since March 2016, it has been an offence to protest within 50 metres of an abortion clinic. In April 2023, the ACT became the first Australian jurisdiction to offer free abortions to its residents. In June 2024, a bill was passed allowing nurses and midwives to prescribe abortion medication for the first time, in addition to doctors. This bill also introduced a requirement for health practitioners who refuse to provide abortion services to refer patients to a practitioner that does provide them.

The decriminalisation of abortion in the ACT has been described as delivering a "brand new day" for women's reproductive rights. However, it is important to note that the ACT is not the only jurisdiction in Australia to have decriminalised abortion. Victoria, Tasmania, and the Northern Territory have also removed abortion from criminal law, although some restrictions still apply in these jurisdictions.

Abortion law in New South Wales

Abortion in New South Wales (NSW) was decriminalised in October 2019 with the royal assent of the Abortion Law Reform Act 2019. This law removed abortion from the state's Crimes Act of 1900, which had previously deemed it a crime under sections 82-84. The new legislation regulates abortion as a medical procedure and allows abortions to be performed on request during the first 22 weeks of gestation. After this time, two doctors must agree that the procedure is appropriate, based on the woman's current and future physical, psychological, and social circumstances.

Prior to the Abortion Law Reform Act 2019, abortions in NSW were only possible if a doctor deemed there to be a "serious risk" to a woman's health. The new law means that women and pregnant people are no longer at risk of prosecution for procuring their own abortion, and doctors are able to perform an abortion after gaining informed consent up to 22 weeks of pregnancy. After 22 weeks, abortions must be performed in a hospital or approved health facility by a specialist medical practitioner who has consulted with another practitioner.

In NSW, abortions must be carried out by a registered doctor and are generally available up to 20 weeks of pregnancy. Most abortions in the state are performed under 12 weeks of pregnancy. Later abortions are sometimes performed for serious medical reasons, including fetal abnormalities.

The Abortion Law Reform Act 2019 was passed after weeks of heated debate, which deeply divided the state's conservative government. The bill's co-sponsors, Labor MP Penny Sharpe, stated that the previous law had meant "women and doctors [were] under threat of 10 years in jail for making this decision, and that's not okay". The reform was opposed by some activists and MPs, who raised objections based on personal beliefs and concerns about late-term abortions. However, last-minute amendments ultimately persuaded some conservative MPs, and the bill was passed in the state's upper house by a vote of 26-14.

Abortion law in the Northern Territory

Prior to the 2017 reforms, abortion law in the NT was more restrictive. Surgical abortions were only available in three hospitals and required the presence of at least two doctors. Abortions after 23 weeks were illegal, except when necessary to save the woman's life. The 2017 reforms removed the requirement for two doctors to examine a woman before 14 weeks of gestation and enabled the prescription of medical abortion tablets.

In 2021, the NT parliament passed further amendments to the abortion law. These changes increased the gestational limit for terminations from 23 to 24 weeks and allowed women to access abortions between 14 and 24 weeks with the approval of just one doctor, rather than two. The amendments also legalised late-term abortions after 24 weeks under certain medical grounds, with the approval of two independent doctors.

While the 2021 reforms have been praised for improving access to abortion services in the NT, particularly for women in complex and rare circumstances, critics argue that further reform is needed. Lawyers and women's rights activists have called for the decision-making power regarding abortion to be placed with the woman, rather than medical practitioners. There have also been calls for abortions to be permitted beyond 24 weeks of pregnancy in certain circumstances.

Despite the decriminalisation of abortion in the NT and the establishment of safe access zones, access to abortion services remains a challenge for some individuals, particularly those in rural and remote areas. Stigma surrounding abortion and a lack of training among medical practitioners are also cited as barriers to accessing abortion services.

Abortion law in Queensland

Prior to the Termination of Pregnancy Act, abortion law in Queensland was governed by the Criminal Code and the common law McGuire ruling. Abortion was deemed unlawful unless the provider reasonably believed that the woman's physical or mental health was at risk. The McGuire ruling, established in 1986, allowed abortion to be performed to protect a woman's physical or mental health and was upheld by the Supreme Court of Queensland.

The current legal framework introduced by the Palaszczuk Labor Government has faced opposition from groups such as Cherish Life Queensland and Project 139, who have demonstrated against the decriminalisation of abortion. Despite this, the law now ensures that abortion services are available upon request in the initial weeks of pregnancy and with appropriate consultation beyond that period.

It is important to note that the availability of abortion services varies across Queensland, with more limited access in rural and remote areas outside of South East Queensland. Additionally, there is a lack of standardised data collection, making it challenging to determine the exact number of abortions performed in the state each year.

Abortion law in South Australia

Abortion is legal in South Australia. In 2021, a bill to decriminalise abortion passed in parliament, removing abortion from the Criminal Law Consolidation Act. The new legislation, the Termination of Pregnancy Act, extended legal protections to health experts involved in the practice.

Under the current law, abortions can be performed by a doctor up to the 22nd week of pregnancy and six days. After 23 weeks, two doctors must approve the abortion and only if they agree that the physical or mental health of the pregnant person is at risk, to save another fetus (multiple pregnancy) or if the fetus has a serious abnormality. Abortions must be performed in a hospital and are also subject to a residency requirement (the patient must be a resident of South Australia for at least two months). The hospital and residency requirements may be waived in an emergency.

In October 2024, the South Australian Legislative Council voted down a bill that would have banned abortion after 27 weeks and six days. The bill, introduced by Liberal MP Ben Hood, proposed that those seeking an abortion after this time would have to either keep the baby or adopt it out. It was denounced by the Greens as tantamount to "forced birth". The bill was defeated by 10 votes to 9.

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