Last month, pro-choice activists welcomed new legislation in Australia's southeastern State of Victoria that decriminalizes abortion up to 24 weeks gestation. Australia, like the US, has a complicated set of abortion laws, regulated at the state level with minor federal intervention. In all states of Australia, abortion is permitted to protect the life or health of a woman. However, variations exist from one state to another in terms of gestational limits and how these risks to life and health are defined. The new legislation on paper presents a good model that in many respects should be replicated not only in other Australian states but globally.
One of the more liberal features of the law is that it allows a registered doctor to perform an abortion after a woman reaches her 24th week of pregnancy if the doctor reasonably believes that the abortion is appropriate and if they have consulted at least one other doctor who agrees. Doctors are allowed to consider a range of circumstances, including the women's current and future physical, psychosocial and social circumstances. Most surprising is that a registered pharmacist or nurse may also administer or supply a drug to assist a woman to abort an unwanted pregnancy after 24 weeks if they too reasonably believe the abortion is appropriate and they have consulted a registered doctor who supports that decision.
The conscientious objection provisions, if regulated properly in practice, also represent a very strong pro-choice approach. Not only does the law very rightly prohibit conscientious objection in cases of emergency where the abortion is required to save the woman's life, but it also requires any doctor exercising conscientious objection to refer the patient to another qualified doctor at any healthcare institution whom they know does not have a conscientious objection to abortion. Some have responded to this requirement negatively, believing this referral requirement completely sacrifices the rights of providers for the sake of the pregnant patient.
Prior to the law's introduction into Parliament, the Victorian Law Reform Commission (VLRC) carried out an investigation, which presented three options to Parliament. The first was codification of the existing law, which made it a criminal offence to destroy the life of an unborn child "capable of being born alive," which was said to be any time after 28 weeks gestation. The second option was allowing an abortion to be performed at any stage of a pregnancy, if a woman gives her consent and the medical practitioner considers it ethically appropriate. The third option was the two-tier system which was finally accepted, using 24 weeks as the defining point. According to figures from the VLRC investigation, about 94.6% of abortions in Victoria are carried out before 13 weeks of gestation, 4.7% between 13 and 20 weeks, and less than 1% after 20 weeks. Yet, although only a small number of women need late-term abortions, the ones who do are the most vulnerable: teenagers, victims of sexual assault including incest, sufferers of mental illness, women who have experienced a sudden tragic life circumstance or have discovered a fetal abnormality.
The bill was moved on behalf of the State Labor Government by women's affairs minister Maxine Morand, who criticized members of parliament, including some from her own party, who claimed to be pro-choice but voted against the reforms. The new law has unsurprisingly received significant opposition. In an effort to prevent the bill passing, Catholic Archbishop Dennis Hart reported to the media that the maternity and emergency departments in the 15 Catholic hospitals in Victoria would be closed if the bill passed the upper house, reacting strongly to the law's requirement that any doctor exercising conscientious objection had to refer a woman to another qualified doctor who would in fact carry out the abortion. Hart described the conscientious objection requirements as "an unprecedented attack on the freedom to hold and exercise fundamental religious beliefs." Yet, Australia's religious community has delivered a diverse range of responses. An all-women task force of leaders from central Victoria's Anglican Church diocese submitted their comments during the VLRC investigation: "In our view, public acceptance of the reality of abortion, including acceptance of the practice among women of diverse religious communities, indicates that a change in the law is timely."
On the other hand, many pro-choice advocates are disappointed that the bill does not fully decriminalize abortion after 24 weeks. Previously, under the Victorian Crimes Act (1958), a woman who had an illegal abortion was liable to receive between five and 10 years imprisonment, while a medical practitioner who provided an abortion could be jailed for up to five years. While women now no longer face criminal charges for having abortions, a medical practitioner who performs an abortion after the 24 week limit may still face criminal penalties if it is deemed that they have incorrectly determined the "appropriateness" of the abortion. Yet we cannot know how "appropriateness" will be interpreted in practice.
The passing of this law represents a step forward for women's rights and sends a clear message for the need to prioritize reproductive choice. However, this win should not cloud the need for legislative reform across Australian states, including achieving uniformity. Whilst an accurate figure is impossible, there are an estimated 70,000-80,000 abortions every year in Australia. Current legal gestational limits vary from 14 to 24 weeks. The Australian Capital Territory (ACT) is the only state or territory to completely legalize abortion with no restrictions in 2002. Given that there is ample evidence, including reports by the Guttmacher Institute and World Health Organisation, that legalizing abortion does not increase the numbers, but rather guarantees women their right to a safe alternative, we can only hope the next step is nation-wide reform that reflects a women's right to choose and to do so without compromising her life or health.
