Both South Australia and Western Australia have taken steps to modernise abortion laws this week, with the former finally set to decriminalise terminations of pregnancy and the latter to create safe access zones around clinics.
Under the Termination of Pregnancy Bill 2020, a bill introduced to South Australia’s upper house Tuesday by Minister for Human Services Michelle Lensink, abortion would be removed entirely from the state’s criminal law and be treated entirely as a health issue. The move would bring the state in line with all other Australian states and territories, although procedures are still regulated and many governments still include penalties around qualifications, conception time-frames, etc.
“In this day and age, it’s completely outdated that abortion is still under criminal law,” Lensink said. “These days, there is overwhelming public support to decriminalise abortion and it makes sense given women have done nothing wrong.”
The proposed laws are based on recommendations by the South Australian Law Reform Institute and, on top of removing abortion from criminal law, would:
- remove a requirement that a woman seeking to terminate a pregnancy require approval from two medical practitioners;
- allow abortions to be performed by one medical practitioner up to 22 weeks and six days gestation;
- after this period, a medical practitioner can perform an abortion if they consult with another practitioner and both are of the view that the procedure is medically appropriate; and
- remove a requirement that a person seeking to terminate a pregnancy was a resident of South Australia for at least two months.
According to a current national guide by non-profit Children by Choice, South Australia’s Criminal Law Consolidation Act 1935 (amended 1969), sections 81(1), 81(2) and 82 specifies that for an abortion to be legal, it must be carried out within 28 weeks of conception in a prescribed hospital by a legally qualified medical practitioner, provided they are of the opinion, formed in good faith, that either the “maternal health” ground — which covers both life and physical and mental health — or the “faetal disability” ground is satisfied.
The Human Rights Law Centre (HRLC) has welcomed the move to decriminalise abortions — although its statement cites concerns about some provisions falling short of the SALRI’s recommendations — and points to the fact the state’s lower house overwhelmingly voted in favour of creating safe access zones around abortion clinics with the Health Care (Safe Access) Amendment Bill 2020 in September.
As the ABC reported in August, the news comes after regional doctors joined a campaign to accelerate decriminalisation, pointing to the fact that the current law’s mandate that early medication and surgical terminations take place in a “prescribed hospital” creates a specific barrier in remote areas.
Introduced yesterday, Western Australia’s Public Health Amendment (Safe Access Zones) Bill 2020 follows the publication of a report by the Department of Health in February 2020, ‘Safe access zones – a proposal for reform report‘, which found 70% of community and industry respondents were in favour of creating safe and private access to abortion services.
The bill provides for a safe access zone that includes the protected premises and any area within 150 metres of the boundary, to apply 24/7.
Within those zones, prohibited behaviours will include:
- harassing, intimidating and threatening a person accessing premises at which abortions are provided;
- communicating by any means in relation to abortion in a manner that can be seen or heard by a person accessing the premises and is reasonably likely to cause distress or anxiety;
- impeding a footpath, road or vehicle without reasonable excuse, in relation to abortion; and
- recording by any means, without reasonable excuse, another person accessing premises at which abortions are provided, without that other person’s consent.
The bill also prohibits a person from publishing and distributing recordings of another person accessing premises at which abortions are provided, if the recording could identify that person, without their consent or reasonable excuse. These prohibited behaviours would carry a maximum penalty of $12,000 and 12 months’ imprisonment.
“This legislation will bring Western Australia into line with most other jurisdictions in Australia in having protective measures in place for those who are accessing abortion services,” Health Minister Roger Cook said. “Women undergoing abortions and their support persons deserve compassion, respect and privacy at an emotionally challenging time, free of harassment or judgement. Staff who work at these health services should also be protected.”
“Public consultation on safe access zones attracted 4,184 responses, including responses from 40 public and private organisations, and confirmed that the majority fully support these measures.”
The HRLC has equally congratulated the McGowan government on the legislation, and urged it to “follow in the footsteps of South Australia and the rest of the country and fully decriminalise abortion”; as Children by Choice notes, provisions relating to abortion are still technically found in the Criminal Code, even if four of its sections were removed and a much broader Section 199(1) enacted under the Acts Amendment (Abortion) Act 1998.