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Explainer
New abortion laws have come into effect in South Australia. What are they in other states?
There are different rules governing access to abortion in each state and territory and continued barriers to access, particularly for marginalised communities.
Published 7 July 2022 12:04pm
By Catriona Stirrat
Source: SBS
Image: Abortion rights in Australian are back in the spotlight after the US Supreme Court's recent decision on Roe v Wade. (STEVEN SAPHORE/AAPIMAGE)
Key Points
- The overturning of Roe v Wade has has highlighted issues around access to services in Australia.
- There are different rules governing access to abortion in each state and territory and continued barriers to access.
Changes to laws in South Australia have come into effect, moving abortion from the criminal code into healthcare legislation.
The Termination of Pregnancy Bill was passed in 2021 but the legal changes were not implemented until 7 July 2022.
It comes just weeks after the United States Supreme Court's ruling overturning the Roe v Wade decision that recognised a constitutional right to abortion.
That decision has highlighted issues around access to services in Australia.
Abortion is legal in all states and territories under certain circumstances and when it is performed by a registered medical professional.
However, there are different rules governing access to the procedure in each state and territory and continued barriers to access, particularly for marginalised communities.
Abortion access in Australia
Australian political leaders expressed their dismay about the US court's decision, with Minister for Women Katy Gallagher warning of the potential for abortion rights to backslide here.
"I think the message to me from that decision in America was the need to remain vigilant because hard-fought-for wins before our parliament can be taken away easily," she said on ABC radio this week.
Deputy Liberal leader Sussan Ley said the ruling is a "step backwards" for the US.
"I'm very discomforted by anything that puts a personal and sensitive issue that a woman has to grapple with in many instances, or a family has to grapple with, in the same sentence as criminal," Ms Ley said on Sky News.
Here's how abortion laws are enacted and practised across each state and territory in Australia:
South Australia
In 1969, South Australia became the first Australian jurisdiction to legislate for the lawful medical termination of pregnancy when necessary to protect the life or health of a pregnant person.
In 2019, a review took place which passed reforms to ensure the law was removed from criminal jurisdiction to a standalone act treating abortion as a health issue.
The bill allows for a medical practitioner to perform a termination on a person who is up to 22 weeks and six days pregnant.
After this period, the bill allows for abortion where the practitioner is reasonably acting within the scope of their practice and has consulted with another medical practitioner.
Queensland
Since 2018, those who are up to 22 weeks pregnant may request a termination, without disclosing a reason to the doctor.
A termination may be performed after 22 weeks if two doctors agree that the termination should be performed.
Abortion was decriminalised in Queensland in 2018, following a debate that included emotional testimonies from politicians arguing for and against the legislation.
NSW
In NSW, abortion was removed from the Crimes Act in October 2019.
Pregnant people can seek an abortion up to 22 weeks of pregnancy. After this time, two doctors must approve the procedure.
Doctors who have a conscientious objection to abortion must provide information about how to locate a registered health service provider at which the termination can be performed.
ACT
Abortion has been legal in the ACT since 1993 and must be performed by a medical professional including a nurse.
Abortion can be accessed up to 16 weeks gestation.
Medical abortions up to nine weeks gestation can be available through a trained GP, telehealth services or MSI Australia counselling services.
Victoria
In Victoria, abortion can be accessed up to 24 weeks of pregnancy, following the 2008 reform which decriminalised abortion.
Beyond 24 weeks, two doctors must approve the procedure.
A GP who has a conscientious objection to abortion must refer anyone seeking this information to another doctor who doesn’t object.
Tasmania
Since 2014, those accessing abortion in Tasmania up to 16 weeks of pregnancy no longer require the consent of two doctors, with pregnancy able to be terminated by a medical practitioner with the consent of the woman or pregnant person.
After 16 weeks, two doctors must approve the procedure.
However, doctors who hold a conscientious objection to terminations are only required to provide a list of prescribed health services that offer advice, rather than practices that perform termination procedures.
Western Australia
Abortion access was made available in Western Australia in 1998, allowing termination procedures up to 20 weeks of pregnancy.
After 20 weeks, abortion is only available with the agreement of two doctors, and only if they agree the pregnant person or unborn child has a severe medical condition that justifies the procedure.
WA has been criticised for lagging behind other states and territories by failing to decriminalise abortion, which is still regulated by the Criminal Code.
Northern Territory
The Northern Territory's abortion laws were overhauled in late 2021.
The changes mean that the approval of one doctor is required for an abortion up to 24 weeks.
Before the amendment, the gestational limit was 23 weeks and the approval of two doctors were required.
Termination after 24 weeks gestation requires clinical advice from two doctors.
What are 'safe access zones'?
Safe access zones ensure behaviour that insults, intimidates, interferes with or invades the privacy of people attempting to access or provide abortion services is prohibited.
As of August last year, safe access zones were enacted all across Australia.
Before this nationwide reform, Ms Corbin said workers and patients at their clinics were constantly harassed.
"I had colleagues who had to wear GoPros to and from their cars, because they were getting harassed to and from work," she said.
"We had patients coming into clinics having been harassed on their way into the clinic or had different sort of anti-choice paraphernalia pushed into their hands or through their car windows."
Ms Corbin said while "ideally we'd like to live in a world where they're not required", safe access zones are vital to ensuring access to legal health care without fear.
Continued barriers to abortion access
While abortion is legal across Australia, there are continued barriers to access, particularly for diverse and minority communities.
Family planning healthcare provider MSI Australia's Head of Policy, Bonney Corbin, said "decriminalisation does not translate to access", and that communities must be at the centre of abortion services.
Refugee and migrant communities
For those on temporary visas, accessing abortion in Australia is expensive, as pregnancy and maternal care are not covered in the same way by private health funds.
"Women or pregnant people can pay up to $8,000 to have an abortion if it's a later gestation, which is obviously an extraordinary amount of money," Ms Corbin said.
"For some of those women and pregnant people, it can be more affordable to actually fly out of Australia to access that care."
CEO of Multicultural Women's Health, Adele Murdolo, said issues around access to interpreters and a lack of health insurance make accessing abortion very difficult for multicultural communities or those on temporary visas.
She added there was a serious gap in culturally-specific life knowledge in decision-making bodies.
"I think that if we were much more inclusive in our decision-making mechanisms and included those very women who were going to be using those services, you would certainly get a much better service out of that inclusion," Ms Murdolo said.
Aboriginal and Torres Strait Islander communities
Aboriginal and Torres Strait Islander communities also face cultural barriers to abortion services.
Ms Corbin said legislative change is required so that Aboriginal and Torres Strait Islander health workers are allowed to prescribe abortion medication.
It's "completely unrealistic" to think that only Aboriginal and Torres Strait Islander doctors are equipped to offer this care, she said.
Ms Corbin said it's about "re-shaping the entire way we deliver abortion within the community".
Source: Marie Stopes International Australia
"The regulations we've got do not suit a woman who lives in Weyba or a trans person who lives in Broome," she said.
"I think the medicalisation of abortion care, that over-medicalisation and over-regulation of abortion care, has led to a cookie-cutter model that doesn't work for all."
LGBTIQ+ communities
LGBTIQ+ communities confront a lack of abortion services in specialised health settings.
There's "always been an alignment between trans and gender diverse health needs, and bodily autonomy and abortion rights", according to Ms Corbin.
However, this hasn't fully translated into services or accessibility, she said.
Ms Corbin said more investment in LGBTIQ+ health services is required, as well as better education in mainstream health contexts, which is still predominantly focused on a male and female binary.
People living with disability
For people living with disability, issues around bodily autonomy are also prevalent, as they confront "an increased risk of reproductive violence", Ms Corbin said.
Guardianship laws mean some people living with disability are required to consult with a guardian for decisions over their own bodies, which Ms Corbin described as "very outdated".
The key to overcoming such cultural and institutional barriers is understanding the link between reproductive violence and reproductive justice, according to Ms Corbin.
"It's about recognising that abortion rights are not about abortion alone, it's about everything to do with reproductive justice," she said.
This includes all the various ways to parent, including adoption and kinship care, as well as choices around birth and birth control.
Where is the research?
There is currently no nationally-facilitated research on abortion in Australia.
The last national report was in 2005, from the Australian Institute of Health and Welfare, which found there were 19.7 abortions per 1,000 women of childbearing age in 2003.
There is currently no nationally-facilitated research into abortions in Australia.
Ms Corbin added there's a common link between miscarriages and abortions, and that these topics must be normalised to allow for productive conversations and research.
"We're not investing properly in abortion research, which would be incredibly useful, particularly around diverse communities."
