Abortion is the most common surgical procedure performed in Australia with an estimated 80,000 abortions conducted each year. Laws about abortion vary between states and territories, but in most jurisdictions access to abortions is restricted by gestational limits and in some parts of the country, an abortion can only be obtained if it is a doctor’s choice. Abortion is a criminal offence in most jurisdictions if performed otherwise than in compliance with legislative restrictions. Campaigners have long fought for abortion to be fully decriminalised, but progress has been slow. Abortion in Victoria is governed by the Abortion Law Reform Act, which was introduced in 2008.
Less than 24 weeks
Section 4 of the Abortion Law Reform Act permits doctors to perform abortions on women not more than 24 weeks pregnant. The act does not place any restrictions on this, meaning that abortion in Victoria is available for women up to 24 weeks, ‘on demand.’
More than 24 weeks
Section 5 of the act permits abortions for women more than 24 weeks pregnant only if two doctors are in agreement that the abortion is appropriate based on all the relevant medical circumstances and the woman’s current and future social and psychological circumstances.
Check with the clinic
Different clinics in Victoria offer surgical abortions and abortions by the administration of drugs (such as RU486 or ‘the abortion pill’) up to different gestational limits. Many will not perform an abortion after more than 9 or 12 weeks, despite the legislation permitting the procedure later in a term.
Private clinics will charge a fee for a surgical abortion, while public hospitals will offer the procedure for no fee. The cost of a medical abortion is limited to the cost of the prescription, which is currently $38.30 with Medicare, and $6.20 with a concession card.
If a woman requests an abortion or advice about an abortion from a medical practitioner and the practitioner has a conscientious objection to abortion, the doctor must inform the woman of their conscientious objection and refer her to a practitioner who does not have an objection (Section 8). In spite of any conscientious objection, a doctor must perform an abortion where it is an emergency and the abortion is necessary to preserve the life of the pregnant woman.
Abortions by unqualified persons
It is a criminal offence for a person who is not qualified to perform an abortion. This offence carries a maximum penalty of 10 years imprisonment.
In 2015, the Victorian government made it illegal for anti-abortionists to protest within 150 metres of a health or fertility clinic. The ‘safe access zone’ laws are governed by the Public Health and Wellbeing Amendment (Safe Zones) Act 2015, which states that within safe zones the following is prohibited:
(a) harassing, intimidating, interfering with, threatening, hindering, obstructing or impeding a person accessing the premises; or
(b) communicating in relation to abortions in a manner that is able to be seen or heard by a person accessing, attempting to access, or leaving premises at which abortions are provided and is reasonably likely to cause distress or anxiety; or
(c) interfering with or impeding a footpath, road or vehicle, without reasonable excuse, in relation to premises at which abortions are provided; or
(d) intentionally recording by any means, without reasonable excuse, another person accessing, attempting to access, or leaving premises at which abortions are provided, without that other person’s consent.
An offence against this section is punishable with a fine of up to 120 penalty units or imprisonment for up to 12 months.
The provision was introduced in an attempt to protect women seeking abortions and staff working in clinics that provide them from being stigmatised, shamed or humiliated. The first person to be charged with breaching the provision, Kathleen Club, was fined $5000. Ms Club subsequently appealed to the High Court on the basis that the law breached her constitutional right to freedom of political communication. The High Court is due to hand down its decision in October 2018.
How does Victoria compare to other states?
Abortion in Victoria was decriminalised in 2008. In other states, abortion remains a criminal offence unless it is done in compliance with strict regulations.
In 2015, it was reported that women were flocking from other parts of Australia to Victoria to access late-term abortions at private clinics and public hospitals because of the relative ease of accessing abortion in Victoria compared to other states. Lobby groups have been calling for legislative uniformity so that woman across the country have equal access to abortions. ACT women have the greatest access to abortion with no gestational limits, while in several states abortions are legal only where doctors believe the physical or mental health of the woman is endangered by the pregnancy.
If you need legal advice please contact Go To Court Lawyers.