New Law Legalizes Abortion in Australia

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New Law Legalizes Abortion in Australia

Ramona Vijeyarasa

Last month, new legislation in Australia's southeastern State of Victoria decriminalized abortion up to 24 weeks. The legislation presents a good model that should be replicated not only in other Australian states but globally.

Last month, pro-choice activists welcomed new legislation in
Australia’s southeastern State of Victoria that decriminalizes abortion up to
24 weeks gestation. Australia, like the US, has a
complicated set of abortion laws, regulated at the state level with minor
federal intervention. In all states of Australia, abortion is permitted to protect
the life or health of a woman. However, variations exist from one state to
another in terms of gestational limits and how these risks to life and health
are defined.  The new legislation on paper presents a good model that in many
respects should be replicated not only in other Australian states but globally.

One of the
more liberal features of the law is that it allows a
registered doctor to perform an abortion after a woman reaches her 24th
week of pregnancy if the doctor reasonably believes that the abortion is
appropriate and if they have consulted at least one other doctor who agrees.
Doctors are allowed to consider a range of circumstances, including the women’s
current and future physical, psychosocial and social circumstances. Most
surprising is that a registered pharmacist or nurse may also administer or
supply a drug to assist a woman to abort an unwanted pregnancy after 24 weeks
if they too reasonably believe the abortion is appropriate and they have
consulted a registered doctor who supports that decision.

The conscientious objection provisions,
if regulated properly in practice, also represent a very strong pro-choice
approach. Not only does the law very rightly prohibit conscientious objection
in cases of emergency where the abortion is required to save the woman’s life,
but it also requires any doctor exercising conscientious objection to refer the
patient to another qualified doctor at any healthcare institution whom they
know does not
have a conscientious objection to abortion. Some have
responded to this requirement negatively, believing this referral requirement
completely sacrifices the rights of providers for the sake of the pregnant

Prior to the
law’s introduction into Parliament, the Victorian Law Reform Commission (VLRC) carried out
an investigation, which presented three options to Parliament. The first was codification
of the existing law
, which made it a criminal offence to destroy the life
of an unborn child "capable of being born alive," which was said to be any
time after 28 weeks gestation. The second
was allowing an abortion to be performed at any stage of a
pregnancy, if a woman gives her consent and the medical practitioner considers
it ethically appropriate. The third option was the two-tier system which was
finally accepted, using 24 weeks as the defining point. According to figures
from the VLRC investigation, about 94.6% of abortions in Victoria are carried
out before 13 weeks of gestation, 4.7% between 13 and 20 weeks, and less than
1% after 20 weeks. Yet, although only a small number of women need late-term
abortions, the ones who do are the most vulnerable: teenagers, victims of sexual
assault including incest, sufferers of mental illness, women who have
experienced a sudden tragic life circumstance or have discovered a fetal

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The bill was
moved on behalf of the State Labor Government by women’s affairs
minister Maxine Morand, who
criticized members of parliament, including some from her own party, who claimed to be pro-choice but voted
against the reforms.
The new law has unsurprisingly received significant opposition.
In an effort to prevent the bill passing, Catholic Archbishop Dennis Hart reported to
the media that the maternity and emergency departments in the 15 Catholic
hospitals in Victoria would be closed if the bill passed the upper house,
reacting strongly to the law’s requirement that any doctor exercising
conscientious objection had to refer a woman to another qualified doctor who
would in fact carry out the abortion. Hart described the conscientious
objection requirements as "an unprecedented attack on the freedom to hold and exercise
fundamental religious beliefs." Yet, Australia’s religious community
has delivered a diverse range of responses. An all-women task force of leaders
from central Victoria’s Anglican Church
submitted their comments during the VLRC investigation: "In
our view, public acceptance of the reality of abortion, including acceptance of
the practice among women of diverse religious communities, indicates that a
change in the law is timely."

On the other
hand, many pro-choice advocates are disappointed that the bill does not fully
decriminalize abortion after 24 weeks. Previously, under the Victorian Crimes
Act (1958), a woman who had an illegal abortion was liable to receive between five and
10 years imprisonment, while a medical practitioner who provided an abortion
could be jailed for up to five years. While women now no longer face criminal
charges for having abortions, a medical practitioner who performs an abortion
after the 24 week limit may still face criminal penalties if it is deemed that
they have incorrectly determined the "appropriateness" of the abortion. Yet we
cannot know how "appropriateness" will be interpreted in practice.

The passing
of this law represents a step forward for women’s rights and sends a clear
message for the need to prioritize reproductive choice. However, this win should
not cloud the need for legislative reform across Australian states, including
achieving uniformity. Whilst an accurate figure is impossible, there are an estimated 70,000-80,000 abortions every
in Australia.
Current legal gestational limits vary from 14 to 24 weeks. The Australian Capital Territory (ACT) is the only
state or territory to completely legalize abortion with no restrictions in
2002. Given that there is ample evidence, including reports by the Guttmacher Institute  and World Health Organisation, that
legalizing abortion does not increase the numbers, but rather guarantees women
their right to a safe alternative, we can only hope the next step is
nation-wide reform that reflects a women’s right to choose and to do so without
compromising her life or health.