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.

A 2007 West Midlands study of termination of pregnancy for foetal anomaly (published in the British Journal of Obstetrics and Gynaecology) concluded that about 3.5% of abortions after 16 weeks' gestation resulted in a born-alive infant. At 23 weeks' gestation, the born-alive number reached 9.7%. The born alive rate fell over the period of the study from 4.0% in 1995 to 1.7% in 2004 due to the impact of new guidelines that feticide should be offered to ensure that live birth does not occur following termination after 22 weeks.

In the US, a Philadelphia doctor, Dr Kermit Gosnell, accused of performing illegal late-term abortions was found guilty of first-degree murder following the deaths of three babies born alive. Former clinic employees testified that Gosnell routinely performed illegal abortions past Pennsylvania's 24-week limit, that he delivered babies who were still moving, whimpering or breathing, and that he and his assistants dispatched the newborns by "snipping" their spines.

There have been no prosecutions of this nature in Australia despite anecdotal information that babies born alive after abortion have been left to die (even with legal and professional obligations in at least some states/territories that the doctor render assistance).

Queensland has foetal protection laws, as do around 40 states in the US. Section 313 of the Queensland Criminal Code states that "Any person who, when a female is about to be delivered of a child, prevents the child from being born alive by any act or omission .... is guilty of a crime, and is liable to imprisonment for life. Any person who unlawfully assaults a female pregnant with a child and destroys the life of, or does grievous bodily harm to....the child before its birth, commits a crime. Maximum penalty imprisonment for life".

Foetal protection laws had been proposed for NSW ("Zoe's Law"), and also for WA, SA, and the NT. One of the key features of moves to introduce such protections (which have tended to stall in parliament) has been a lukewarm response from women's groups and the Left generally. Such groups would normally be expected to be strident supporters of laws that increase penalties for crimes involving women or child victims. The obvious reason for lack of support is that it would look hypocritical to criminalise the killing a foetus by a third party (e.g. by assault) while at the same time supporting a mother's legal right to terminate that same foetus using medical abortion.

Another issue for jurisdictions such as NSW, Queensland, South Australia, Western Australia and the NT (and also the UK), where abortion is still a crime except for certain circumstances, is the risk of paying only lip service to the law's conditional approval of abortion. This particularly arises where the law requires one or more doctors to certify that grounds justifying an abortion exist.

Prosecution of doctors for performing "unjustified" abortions are rare in Australia. (It is claimed that over the past 20 years there have been only two successful such convictions.) In the UK surprise inspections of more than 250 abortion clinics found evidence of blank forms being pre-signed (in anticipation of patients seeking a termination), suggesting that (for many clinics) certification by doctors is only a formality.

Many jurisdictions permit an (often late) abortion in cases when the unborn child is likely to be born with a handicap, raising difficult practical and ethical issues. Justifying abortion in such cases firstly implies that the lives of disabled people are less worthwhile than the lives of "normal" people. A second (practical issue) also relates to how serious an expected handicap needs to be to justify a lawful termination. Abortion seems less problematic in instances where the foetus is considered unlikely to be able to survive long after birth.

The presence of Down syndrome is a commonly accepted justification for a termination. This is despite studies indicating that the vast majority of parents with such children report that their outlook on life was more positive because of their child, and 99 percent of those with Down syndrome feeling happy with their lives. In the UK, a parliamentary committee has suggested tightening the rules because parents are being "steered" towards aborting babies with disabilities without proper information on the alternatives. In extreme cases foetuses have been aborted purely because screening had detected a cleft lip or club foot, conditions which can be dealt with surgically after birth.

Belief in the "right to choose" is logically incompatible with expressed opposition by some women's advocates to selective abortion of female foetuses. As a matter of logic, if there is no moral objection to abortion per se, and if a mother has an absolute right to choose, it is hard to raise any moral objection to selective abortion of females (though one might raise a public policy argument).

So where does all this lead in the abortion law debate?

Moral argument seems incapable of resolving the seemingly intractable abortion law debate. Instead, conscience votes by politicians, which ultimately should reflect majority community opinion, ought to prevail and give us laws supported by the majority or citizens. For this to happen politicians must be prepared to grasp the abortion law "nettle". The problem is, however, that many politicians seem to prefer to avoid the topic entirely, if possible.

It seems a matter of reality that abortion in the first trimester of pregnancy has majority support and (whatever the merit of "right to life" arguments) is almost certainly here to stay.

Late-term abortions, however, seem little removed from infanticide in many cases, and raise clear moral concerns for the majority of citizens. Is it is ethical to deliberately end such pregnancies if a live birth is an alternative at that point in gestation? With late term abortions, it is now not uncommon for the foetus to be given a lethal dose of Digoxin or Potassium Chloride early in the procedure. While this will prevent the embarrassment of a live birth following an abortion (a satisfactory outcome perhaps for the doctor and the parents of an unwanted child?), many will not consider this an acceptable moral outcome.

In my view, the general public and legislators need to reclaim the abortion debate from activists, and politicians need to have the backbone to open their eyes and comprehensively sort-out this issue. Politicians (conveniently) seem to ignore issues related to late-term abortions and to the integrity (or lack thereof) of doctor certification of the need for an abortion. It also seems cowardly for legislators to allow core law on abortion to be determined (by default) through common law judgements, such as Levine, or to allow enacted legislation to go unenforced.