Insight from our team of leading criminal lawyers: Abortion legalised in Queensland in October 2018 – what do the laws say?
Abortion will no longer be a crime in Queensland. In October 2018, State MPs voted to remove the procedure from the criminal code. Like religion and politics, abortion is a very controversial, personal topic. Everyone will have a differing view about it; depending upon their upbringings, personal circumstances, spiritual beliefs and religious beliefs. And prior to the changes to the laws last week, abortion was such a controversial topic that there were frequently violent clashes between pro and anti-abortion activists around the country.
This article will explain the laws relating to abortion as they currently are now and were previously, in Queensland and other parts of Australia.
What are the arguments?
Those who support the legalisation of abortion argue that abortion was originally made illegal at a time when women could not hold property or vote. That is, women were seen as less important than men and would therefore not be able to have a say about their own bodies. It was argued that the right of women to control their own reproduction and their bodies is an important part of equality in our society. Keeping abortion illegal is effectively prioritising the rights of a fetus above that of a woman because the logical conclusion is that a woman should be forced to continue an unwanted pregnancy.
Those who opposed the legalisation of abortion mainly did so based on religious arguments. They argued that all life is precious and at 22 weeks a fetus should be considered a human because it is effectively formed. It will have a heartbeat, all of its organs and other characteristics of a living human being and should, therefore, be entitled to life.
Abortion in Australia
Abortion in Australia is largely regulated by the states and territories rather than the Federal Government. The grounds on which abortion is permitted in Australia vary by jurisdiction. In every state, abortion is legal to protect the life and health of a woman, though each state has a different definition.
Nowhere in Australia is there a requirement that a woman’s sexual partner be notified of a proposed abortion or to consent to the procedure. Australian courts will not stop a pregnant woman from terminating her pregnancy, even at the request of the father of the fetus. There is also no waiting period for an abortion. A minor does not need to notify a parent of a proposed abortion nor is parental consent required, except in Western Australia. In Western Australia, a proposed abortion by a minor under 16 years of age must be notified to one of the parents, except where permission has been granted by the Children’s Court or the minor does not live with her parents.
Early-term surgical abortions are generally available around Australia for those women who seek them. The procedure is partially funded under Medicare, the government-funded public health scheme, or by private healthcare insurers. Prosecutions against medical practitioners for performing abortions have not occurred for decades, with one exception – a prosecution in 1998 in Western Australia that soon after led to the explicit legalisation of on-request abortions under certain circumstances in that state. In the case of ‘a child capable of being born alive’ (usually taken to mean after 28 weeks of pregnancy), a termination may be subject to a separate crime of child destructions in some States and Territories.
The position in Queensland
Last week a change to the law was approved by parliament, meaning that it will very shortly be legal for a woman to have an abortion up to the 22nd week. After 22 weeks, an abortion may only take place if the medical practitioner performing the abortion has consulted with a second medical practitioner and both agree that “in all the circumstances” the abortion should be performed.
The law sets out as circumstances to be considered by the medical practitioners, all relevant medical circumstances, the woman’s current and future physical, psychological and social circumstances, and the professional standards and guidelines that apply to the medical practitioner in relation to the performance of the termination. The law also states that an abortion may be performed after 22 weeks if it is necessary to save the woman’s life or the life of another unborn child.
One concern raised by those who opposed the laws was that it would lead to an increase in abortion because women who are contemplating having an abortion no longer have to fear any criminal consequences. One way to predict whether or not this will occur is to look at other jurisdictions in Australia which have previously legalised abortion to see what effect it has had over there.
Victoria has had very similar abortion laws as those that are to be introduced in Queensland since 2008 and a 2017 study found that changes to the law did not lead to any significant changes to the number of abortions sought by women across the state.
As a result to the change to the law in Queensland, New South Wales remains the only state in which abortion remains illegal – it is only legal if a doctor finds any economic, social or medical ground or reason that abortion is required to avoid serious danger to the pregnant woman’s life or to her physical or mental health.