Abortion is no longer a crime in Australia. But legal hurdles to access remain

South Australia this week became the final Australian jurisdiction to partially decriminalise abortion.

The Termination of Pregnancy Bill passed the state’s upper house on Tuesday, meaning abortion will be moved out of the criminal code and instead regulated under health law.

This change paves the way for improved access to abortion, especially for rural women. Abortions can now be provided beyond selected hospitals, and women no longer need to have been South Australian residents for two months or more to access an abortion.

While this is a positive step, important legal hurdles to abortion access remain in South Australia and around the country.

Gestational limits

With the exception of the Northern Territory, where abortion remains a medical practitioner’s decision regardless of the gestation, and the ACT, where no gestational limits apply, Australian jurisdictions now permit abortion on request up to varying points in a pregnancy.

The gestational limit for an “on request” abortion in South Australia is now 22 weeks and six days. Other states range from 16 to 24 weeks.

Abortions after specified gestational limits generally require two doctors to approve on psychological, physical or, in most instances, social grounds (for example, the inability to afford another child, or intimate partner violence).

But some states are more restrictive than others. In Western Australia, after 20 weeks, two doctors from a panel of six must determine the abortion is necessary because “the mother, or the unborn child, has a severe medical condition”.

In the NT, abortions after 23 weeks are prohibited, except if it’s deemed necessary to save the pregnant person’s life.

Read more: Here's why there should be no gestational limits for abortion

Gestational limits restrict reproductive autonomy. The Victorian Law Reform Commission has noted gestational limits mean that, in the later stages of pregnancy, abortion becomes an “exception to a woman’s general right to determine what medical procedures she will undergo and what relationships she will enter”. They force some pregnant people to “rush into a decision”, and create “more hoops for women to jump through”.

By adopting a model of law reform that regulates abortion differently after gestational limits, governments have failed to prioritise expanded abortion access. Experts in this space in Victoria have reported access to later-term abortions has worsened since abortion was decriminalised in the state in 2008.

But in WA, access to later abortions is so restrictive that one reproductive health service directs pregnant people to Victorian services.

Over-regulation

The bills to decriminalise abortion in each jurisdiction enacted criminal laws that prevent unqualified people from performing abortions, with punishment ranging from five to ten years’ imprisonment.

This represents over-regulation, where laws seek to regulate practices that no longer exist (namely “backyard abortions”). It unnecessarily singles abortion out for special regulation, preventing its full integration into health law (which already ensures only qualified people perform medical procedures).

It would be more pertinent to focus on broadening the scope of who can perform abortions in Australia.

The World Health Organization advises all properly trained health-care providers can safely provide abortion.

Abortion care provided at the primary-care level […] minimises costs while maximising the convenience and timeliness of care for the woman.

But Australian law only permits medical doctors to perform abortions, with the exception of South Australia and the NT. In those jurisdictions, trained health professionals, such as nurse practitioners and Aboriginal and Torres Strait Islander health workers, are allowed to provide medical abortions (in the NT under the direction of a doctor).

However, Therapeutic Goods Administration regulations currently only permit doctors to prescribe medical abortion, overriding extant legislation.

Other instances of over-regulation and abortion exceptionalism include provisions for informed consent in New South Wales and WA, which require doctors to inform patients of the benefits and possible risks of abortion.

The Australian Medical Association has called this an “unnecessary and insulting” extra hurdle, given doctors are already required to seek informed consent for medical procedures.

States and territories differ in many aspects of abortion laws

When medical practitioners refuse to refer pregnant people to termination services, most jurisdictions require them to provide the patient with information, or refer them to a health service or provider without a conscientious objection.

But in the ACT and WA, doctors aren’t required to provide this information or referral. This is an exception to their responsibilities under professional codes of conduct that prohibit doctors from allowing their “moral or religious views to deny patients access to care”.

Read more: It's time to lift the restrictions on medical abortion in Australia

The new laws enacted in NSW and South Australia include provisions condemning and, in SA, prohibiting “sex-selective” abortions.

But there’s no evidence sex-selective abortion is a significant issue in Australia, so this too may be over-regulation. Possible consequences here include racial profiling, whereby some doctors may question a person’s motives for seeking abortion on the basis of their background.

Meanwhile, the abortion decriminalisation laws in WA, South Australia and NSW require doctors to provide information about counselling services (in NSW, this only becomes mandatory after 22 weeks’ gestation).

The South Australian Law Reform Institute has said this measure “undermines the autonomy of women” and creates “unnecessary delays and burdens”. Provisions relating to counselling presume women are uncertain about their decision, and establish abortion as a problematic and potentially harmful choice.

Further, WA is now the only Australian jurisdiction that doesn’t have safe access zone legislation, which protects the safety, well-being, privacy and dignity of people accessing abortion services.

Read more: One in six Australian women in their 30s have had an abortion – and we're starting to understand why

Abortion access across Australia is uneven, concentrated in large cities. And, with the exception of South Australia and NT where abortions are provided under the public health system — they are costly.

Important legal obstacles remain, largely due to the actions of a handful of anti-abortion politicians who are out of step with the Australian community, which is broadly supportive of a pregnant person’s choice.

Access can be broadened within the parameters of the existing legal infrastructure. The 2019 federal Labor election pledge to require public hospitals to provide abortion care is a great example of the type of leadership we need to achieve local, timely and affordable abortion care in Australia.