Australia's abortion laws are conflicting, hypocritical, and poorly enforced

Few subjects generate more heated public debate than abortion law. This reflects that abortion directly involves issues of life and death, often having profound implications for those involved. Passions are further raised because of conflict between deeply held "right to life" views, and opposing beliefs that women have an absolute right to control their own bodies, including a right to unrestricted access to abortion.

Family Planning Queensland found that there were 76,546 abortions in Australia in 2009 compared with 291,227 live births so that a minimum of 20.8 per cent of known pregnancies ended in elective abortion. The figures had to rely on Medicare statistics (which exclude abortions performed in public hospitals) for some states so that they underestimated terminations. Our current rate of abortion is regularly estimated in media articles at between 90,000 and 100,000 abortions annually (said to be equivalent to up to 25 per cent of known pregnancies). The figures therefore suggest that abortion is an issue of considerable demographic, social, and moral/legal significance.

Whatever our individual position on abortion, we should be able to agree that it is in everyone's interests that Australia's abortion laws are clear (so they don't place unacceptable criminal risks on doctors or patients). Abortion laws also ought to be in harmony with other related laws, be largely consistent across states and territories, be based on a moral code that is broadly accepted by a majority of citizens, and be properly enforced by the relevant authorities. Our abortion laws, however, struggle to pass any of these tests.

While public opinion is obviously divided, a clear majority of Australians (rightly or wrongly) appear to support abortion rights for women early in pregnancy, but have reservations or are opposed to late term abortions. In a democracy one might expect the law to broadly reflect such community standards.

A 2010 survey of Australians over 18 years published in the Medical Journal of Australia found that 61 per cent said abortion should be lawful without question in the first trimester of pregnancy, while 26 per cent said it should be lawful depending on the reason. In the second trimester outright support was 12 per cent, while 57 per cent said it depended on circumstances. For late-term abortions (reportedly less than 2 per cent of Australian abortions), only 6 per cent said it should be totally lawful, while 42 per cent said it depended on circumstances, and 48 per cent said it should be unlawful.

Abortion law is a state/territory matter. Abortions used to be prohibited in all Australian states and territories under their respective Crimes legislation, though they now differ in their degree of subsequent liberalisation. Key disagreements relate to whether a mother should be required to have an acceptable or essential reason justifying a termination, and to the legality of late-term abortions.

There seem to be three main approaches to abortion laws in Australia:

1. The ACT has the most liberal abortion laws in the country, having totally removed abortion as a crime. All forms of abortion at all stages of gestation are now lawful as long as they are performed by a registered medical practitioner.
2. Victoria and Tasmania have also removed sections of their crimes law relating to abortion. Victoria permits any "registered medical practitioner" to conduct abortions up to 24 weeks' gestation. Abortions after 24 weeks are permitted, if approved by two medical practitioners based on the mother's current and future physical, psychological and social circumstances. Tasmanian law allows for terminations until the 16th week of pregnancy, with later pregnancies requiring the approval of two doctors on medical or psychological grounds.
3. In the other states and territories, abortion is still a crime except for certain exceptions. In NSW, for example, its Crimes Act 1900 says that unlawfully procuring an abortion is an offence punishable by up to ten years imprisonment. In practical terms, however, NSW abortion law is effectively based upon the (common law) Levine ruling of 1971. This rulingdeclared abortion to be legal if a doctor found "any economic, social or medical ground or reason" that an abortion was required to avoid a "serious danger to the pregnant woman's life or to her physical or mental health" at any point during pregnancy.

So why the big variation across jurisdictions in abortion laws?

While the ACT is generally a leader on social reform, there is little evidence that community standards on abortion differ markedly across states/territories. A more likely explanation probably lies in state politics, with the more permissive abortion laws having been pushed in jurisdictions with a left-wing dominated ALP government, while more conservative governments have generally been more divided and dithery.

The key issue in the abortion debate is the stage at which a human life (worthy of legal protection) comes into existence. A foetus used to be legally protected from conception but now has very limited legal security until birth.

The abortion debate touches on the issue of infanticide because the killing of newborn babies is a serious crime in all Australian states and territories. The crime is generally treated as murder, though it can be a lesser crime if the mother is suffering a mental condition. Infanticide was practiced in ancient cultures and in some indigenous societies. It persists today amongst some ethnic groups (mainly as female infanticide, often alongside selective abortion of female foetuses). The issue of infanticide is relevant indirectly both because late-term abortions commonly involve viable foetuses (able to survive outside the uterus), and because each year a significant number of babies are born alive following a termination. It seems a major omission for such events to go largely ignored in jurisdictions that have liberal abortion laws.