BY NATALIE ZIRNGAST
While ACT women can now access abortion without fear of criminal prosecution, elsewhere in Australia women accessing abortion face a web of legal and medical barriers. This is the situation around the country.
New South Wales
Legislation, first introduced in 1900, states that any woman who attempts to "procure her miscarriage" will be "liable to imprisonment for 10 years".
The same penalty can be applied to anyone that performs an abortion. Supplying or procuring "any drug or noxious thing, or any instrument or thing whatsoever" to be used in an abortion is punishable by five years' imprisonment.
Victoria
A woman attempting to procure her own abortion, or any person that administers any drug or instrument for this purpose, is guilty of an indictable offence which carries a maximum penalty of 10 years' imprisonment. Knowing suppliers of drugs or instruments for the purpose face a maximum of five years' imprisonment.
Queensland
Laws are contained in the Criminal Code Act 1899 and are listed under the heading "Offences Against Morality".
A person who causes a woman to take a substance, administers any force, or physically assists an abortion is liable for 14 years' imprisonment. A woman who aborts her own foetus or allows it to be aborted faces seven years' imprisonment. The knowing supply of drugs or instruments for abortion is punishable by a three-year prison sentence.
Western Australia
These laws were significantly revised in 1998. The criminal code states that abortion remains unlawful unless performed by a medical practitioner and justified by the relevant section of the health act. Performance of an unlawful abortion carries a $50,000 fine.
The health act allows a woman to obtain a lawful abortion if she has given informed consent, or if she will "suffer serious personal, family or social consequences if the abortion is not performed", or if there is a serious danger to her physical or mental health.
Informed consent is defined by consent freely given by a woman when a medical practitioner has advised her of the medical risks of abortion and continuing with the pregnancy and offered to refer her to "appropriate counselling". This medical practitioner cannot perform or assist in the abortion.
Late-term abortions, after 20 weeks of pregnancy, can only take place if the women or her foetus has a severe medical condition. They must be approved by two out of six medical practitioners appointed to a panel by the health minister.
A woman under the age of 16 who is financially supported by her parents will not be able to access an abortion until one of her custodial parents has been given the opportunity of participating in counselling and discussions between the woman and her doctor. An order from the Children's Court can overturn this requirement.
Any "person, hospital, health institution, other institution or service" can refuse to participate in abortion services.
South Australia
The Criminal Law Consolidation Act 1935 allots a life sentence to a woman who aborts her foetus herself, or to another person who provides an abortion. Suppliers of drugs or instruments face three years jail.
However, exemptions apply if the termination of pregnancy is carried out by a legally qualified medical practitioner in a prescribed hospital, and two doctors agree that proceeding with the pregnancy will involve greater risk to the physical or mental health of the woman than aborting. The approval of just one doctor is needed if there is a grave risk to a woman's life or a risk of "grave injury" to her physical or mental health.
A woman must have been a resident of South Australia for at least two months before she can have an abortion, unless there is a grave threat to her health. No person is under obligation to participate in abortion-related treatments if they have a "conscientious objection".
The state governor can make regulations in relation to this law, including prescribing hospitals and fines for breaches.
Tasmania
The Criminal Code Act 1924 places abortion under the subheading "Crimes against Morality". Although procuring a "miscarriage" and helping a woman do so are crimes, no sentences are specified. In 2001, abortion was legalised in cases where the physical or psychological health of a woman was at risk, as certified by two doctors.
Northern Territory
Procuring abortion, or knowingly administering, supplying or obtain ing drugs, instrumentsor any other thing for the purpose of procuring an abortion, all attract a possible seven years' imprisonment.
Section 174 of the criminal code allows for an abortion to be performed in the first 14 weeks of pregnancy if two medical practitioners are of the opinion that "the continuance of the pregnancy would involve greater risk to her life or greater risk of injury to her physical or mental health than if the pregnancy were terminated", or if there is a "substantial risk" that the child might have serious mental or physical handicaps.
Beyond 23 weeks, a medical practitioner may support termination of a woman's pregnancy to "prevent grave injury to her physical or mental health" or to preserve her life.
The law also specifies that no-one can be required to assist in an abortion if they don't want to, even if they have signed a contract or it is part of a job description. Women under 16 are considered "incapable in law" of giving consent to abortion.
Legal interpretation
In many places, abortion access is more liberal than these laws suggest because legal precedents have relaxed the interpretation of what consists a serious danger to a woman's physical or mental health, often relying on common law.
This is still, however, a long way from abortion on demand. Women must rely on a doctor's judgement of her health and wellbeing, not her own needs and wishes.
Doctors can also be charged for performing abortions: this happened in WA in 1998 and in Tasmania in 2001. This reduces the availability of services, as other doctors are reluctant to perform the procedure. Allowing doctors to refuse to participate in providing or recommending abortion means that it can be difficult to find two doctors to support a woman's case.
The result has been a severe shortage of doctors willing to perform the procedure, increasing the costs of abortion and decreasing its availability.
About 80,000 abortions are performed in Australia each year. One in three Australian women will have an abortion at some time in their lives. These laws, which force women to rely on others' judgement or risk being prosecuted, must go. We should not have to put up with legal and government interference in what we do with our bodies and our lives.
[Natalie Zirngast is a member of the Democratic Socialist Party.]
From Green Left Weekly, August 28, 2002.
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