Abortion is covered in criminal statutes in every state and territory except the Australian Capital Territory, which repealed them in 2002.
The definitions in these laws as to what constitutes an "unlawful" abortion varies from state to state, with Western Australia having the most liberal definitions, but generally there are three common elements to the laws:
* It is an offence for a woman to procure, or attempt to procure, her own miscarriage.
* It is an offence for someone else to unlawfully administer any poison or noxious thing or to use an instrument or other means to procure a miscarriage.
* It is an offence to supply the drug or instrument used to procure a miscarriage.
In many places, abortion is more legally accessible than the criminal codes suggest, but only because court rulings have broadened the interpretation of what constitutes a serious danger to a woman's physical or mental health.
While these judicial rulings have allowed the states to accommodate the very real need for abortion services, they have not made abortion on demand legal as federal health minister and former Catholic trainee-priest Tony Abbott would have everyone believe.
In Queensland, NSW and Victoria judicial rulings allow for access to terminations when a medical practitioner can state that he or she honestly believes that continuing a pregnancy would cause more harm to the woman than a termination, or would pose a real risk of harm to the pregnant woman's life or her mental or physical health.
In Tasmania, the situation is similar but two medical practitioners must agree on the risk faced by the woman and therefore the need for an abortion. In South Australia and the Northern Territory, the risk must be extreme to the woman before she is referred for an abortion and the recommendation of two doctors is usually required. Women under the age of 16 are not able to access abortions as they are considered too young to give consent.
Western Australia's laws also deny access to women who are under 16 for the same reason. WA law requires that a doctor has provided a woman seeking an abortion with "appropriate" counseling, offered to refer her for further counseling and informed her that counselling will be available following the termination. After this has been done, a woman may give informed consent to an abortion.
Laws similar to those in WA were also introduced in 1998 in the ACT. They included the requirement that doctors show the woman seeking an abortion an information booklet written by a panel approved by the health minister and that the woman agrees to undertake counselling. However, these requirements were overwhelmingly rejected by the medical practitioners themselves on the grounds that they compromised the doctor-patient relationship and the professional judgement of the doctor to act in the best interests of the woman. These laws were repealed in 2002.
The ACT is the only jurisdiction that leaves the decision about abortion to individual women, however this is only up to 12 weeks and there is still a provision for health staff to "conscientiously object" to performing the procedure. Even in the ACT abortion on demand doesn't exist after 12 weeks, where the law requires an "ethics panel" of two doctors to review the woman's circumstances.
For most women, access to abortion is dependent upon the cost being partially paid for through Medicare rebates. However, abortions are almost never carried out in public hospitals. They are usually carried out in specialised clinics or surgeries where the woman is required to pay for the mandatory counseling and support, the ultrasounds or follow-up care. Thus, the Medicare rebate alone is not sufficient to cover the costs of providing abortion services.
Removing the Medicare rebate would mean that the cost of a first trimester abortion would increase from an average $250 contribution from the woman to about $800. More complicated procedures would increase the out-of-pocket payment to thousands of dollars. Very few women would be able to afford this, and safety would be compromised as women tried to find cheaper alternatives.
Under the current legal arrangements, doctors can also be charged for performing abortions, as happened in WA in 1998 and in Tasmania in 2001. This reduces the availability of services, as many 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 moral crusading over women's bodies, combined with the procedure's rareness in public health and training hospitals, have contributed to a shortage of skilled doctors willing to perform the procedure, increasing the cost of abortion and decreasing its availability.
It is estimated that one in three Australian women will have an abortion at some time in their lives. Reactionary laws which force women to rely on others' judgement or which put women or their doctors at risk of prosecution, must go. We should not have to put up with churches, courts or governments interferring in what we do with our bodies and our lives.
[The author is a member of the Canberra branch of the Socialist Alliance.]
From Green Left Weekly, February 23, 2005.
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