The introduction of a Bill to decriminalise abortion in SA unsurprisingly drew impassioned responses both within parliament and in the wider community.
For all the arguments that abortion should be treated solely as a health issue, it is understandable that it has become a highly emotive debate given it involves the notion of determining the fate of a nascent life form.
However, the Society is concerned that some of the public commentary about the apparent likely impact of the Termination of Pregnancy Bill betrays an incomplete understanding of the purpose of the proposed new laws, how the laws would operate in practice, and how they compare to existing laws in relation to abortion.
This article attempts to briefly summarise the key aspects of the proposed abortion laws and explain how they differ from current laws. This article should not be considered an adequate alternative to reading the Bill, which can be viewed here, but we hope it can address some of the misinformation presently being circulated in some quarters.
DECRIMINALISATION
The most significant change the Bill achieves is removing termination of pregnancy procedures from the criminal legal system.
Under current laws, a woman can lawfully have abortion if the woman receives the approval of two medical practitioners, who both form the opinion that continuing the pregnancy would increase the risk to the pregnant woman’s life, or create a greater risk of physical or mental injury to the woman, or that there is a substantial risk the child would be born with serious physical or mental abnormalities.
However, these provisions are defences to the criminal offence of abortion. In other words, if an abortion is performed that does not adhere to the above criteria, the abortion procedure would be unlawful. More recently it has been very rare for an abortion procedure to be the subject of a criminal prosecution.
By decriminalising abortion, it hopefully assists with removing the stigma and additional burden faced by women dealing with already highly distressing events. This is after all a health issue, not a criminal one.
The Bill creates a stand-alone Termination of Pregnancy Act, ensuring that abortion is governed under health regulations, rather than criminal law.
As well as decriminalising abortion, the Bill aims to facilitate safe access to abortion and for termination procedures to take place in clinically appropriate settings.
How would the proposed reforms impact the prevalence of abortions in SA?
The Society considers, upon examining the available evidence, that the decriminalisation Bill is not likely to have a material impact on the number of abortions conducted in SA, as abortions can already be procured lawfully, and late term abortions are rare.
EARLY TERM ABORTIONS
Medical abortion refers to treatment whereby a woman uses pharmaceutical drugs to medically induce an abortion, and no other medical treatment is required. Medical abortions are generally performed in the early stages of pregnancy. Medical abortions are lawfully permitted in SA only if two medical practitioners, upon examination of the woman, approve the abortion, and the treatment takes place in a designated hospital.
The new Bill only requires one registered health practitioner to authorise the termination and prescribe or administer the drug, and removes the requirement that the treatment needs to take place in a hospital. The Bill permits medical abortions for pregnant women whose gestation period is no more than 63 days, which reflects current Therapeutic Goods Administration guidelines.
The reasons for requiring just one registered health professional to approve the procedure are:
Similarly, the reason for removing the requirement that medical abortions take place in prescribed hospitals is because medical care practices have advanced significantly since the abortion laws were last amended 50 years ago, and it is appropriate, and in a number of cases preferable, for a woman to be able to procure a medical abortion in a general practice setting. The current requirement to visit a hospital (on at least two occasions within 48 hours) can be significantly restrictive and burdensome for women who live in rural and remote locations especially.
ABORTIONS UP TO 22 WEEKS & 6 DAYS
What do the proposed laws say about abortions up to 22 weeks and 6 days?
A woman who is not more than 22 weeks and 6 days pregnant can procure an abortion performed by a medical practitioner acting in the ordinary course of their profession.
How does this differ from current laws?
Under current laws, a woman seeking an abortion needs the approval of two medical practitioners. Under the Bill, a pregnant woman whose gestation period has not exceeded 22 days and 6 days only needs to consult one medical practitioner to procure an abortion. Further, the Bill states that the medical practitioner performing the termination can do so “in the ordinary course of the practitioner’s profession”, making it clear that that the procedure is to be governed under the standard health regulations that govern medical practitioners’ responsibilities and patient care.
Why has 22 weeks and 6 days been prescribed as the gestational limit after which two medical practitioners must be consulted?
State Attorney General Vickie Chapman MP has advised that the prescription of 22 weeks and 6 days as the gestational limit most closely aligns with current clinical practice in other jurisdictions. It also broadly reflects SALRI’s recommendation in its Abortion Report, although SALRI recommended that 24 weeks be the gestational limit at which a woman is to consult two doctors. According to SALRI’s report, “terminations at this later stage often involve disadvantage, distress, complexities and higher risks to the pregnant woman”.
LATE TERM ABORTIONS
What does the current law say about late term abortions, and how does that compare to proposed laws?
It is currently unlawful to perform a termination on a pregnant woman where the child is “capable of being born alive”, unless the termination was performed in good faith to save the mother’s life.
Under the current law, this is presumed to be 28 weeks into a pregnancy. However, this law is 50 years old and medical practice has advanced significantly in that time. In modern clinical practice, a foetus is now considered viable from 24 weeks.
Medical practice has also advanced considerably with regards to the detection of abnormalities in a foetus and detection of other conditions which could put the mother’s or baby’s health at risk.
The proposed law removes the provision that makes it unlawful to terminate a pregnancy where the child is capable of being born alive, but requires a woman who is more than 22 weeks and 6 days pregnant to consult with two medical practitioners, and for both medical practitioners to consider that the termination is medically appropriate.
Would the Bill, if passed, lead to an increase in late term abortions?
The Society notes that terminations performed after the 20-week stage are rare, making up less than 3% of terminations. Of the later term abortions, 48.3% were due to the mental health of the woman, 43.3% for congenital anomalies in the child, and 8.3% were for specified medical conditions of the woman.
According to the SA Branch of the Australian Medical Association, in its response to the proposed legislation: “in almost all cases, late-term abortions are sought in response to medical conditions affecting or with the potential to affect the pregnant individual and/or the foetus.”
“The Royal Australian & New Zealand College of Obstetricians and Gynaecologists (RANZCOG) recognises special circumstances of late presentation or diagnosis, such as diagnosis of foetal abnormality, reproductive coercion/domestic violence, difficulty accessing abortion services and illness during pregnancy (such as a cancer diagnosis).”
There appears to be little reliable evidence to suggest that late term abortions would increase under the proposed reforms. What the Bill does is ensure that all abortion procedures conducted in clinical settings are treated as medical issues and decisions are made based on medical evidence and patients’ rights.
UNAUTHORISED ABORTIONS
What does the law say about women performing self-terminations?
It is currently unlawful for a woman to abort her own pregnancy. The maximum penalty is life imprisonment.
What does the Bill say about this?
The Bill deletes this provision and provides that a woman who assists in, consents to or performs an abortion on herself does not commit a criminal offence.
SALRI’s inquiry drew a number of different views on this issue, but the overwhelming majority of responses were in favour of the position ultimately adopted in the Bill. SALRI’s report states: “the law in South Australia should make it clear that a woman should not be criminally liable for an unlawful abortion performed on her. It is incongruous with modern attitudes and at odds with the position adopted interstate for a woman to remain at risk (even if largely theoretical) of prosecution for performing or assisting in performing an abortion on herself.”
Can anyone be held criminally reliable for procuring an abortion?
Yes, the Bill includes a new major indictable offence for unqualified persons who perform or assist in performing a termination. As previously mentioned, a woman who attempts an abortion on herself is protected from liability.
According to Minister for Human Services Michelle Lensink, the Bill recognises “that there is a clear public interest in protecting the public from dangerous and unsafe medical practices carried out by persons who are not authorised or qualified to carry out terminations of pregnancy.”
Under the Bill, a prosecution for such an offence can only go ahead where the Director of Public Prosecutions deems it in the public interest to do so.
CONSCIENTIOUS OBJECTIONS
The Termination of Pregnancy Bill establishes circumstances in which a health practitioner may conscientiously object to performing, assisting with an abortion. The Bill requires a conscientious objector to notify the woman immediately of their objection, and refer the woman to a practitioner who can provide the service requested by the woman. In essence, a medical practitioner can object to performing an abortion if it legitimately conflicts with their personal beliefs, but the right to conscientiously object cannot override a medical practitioner’s duty of care to the patient.
CONCLUSION
The Termination of Pregnancy Bill reflects current medical views on this complex and highly emotive issue. It reforms a 50-year old law by adopting the principles of best clinical practice standards and reflects most current societal attitudes toward abortion and women’s reproductive rights.
The Bill removes the criminalisation aspects of these procedures and thereby hopefully reduces some of the anxiety and stress all women would experience when considering and having such a procedure. In short, the Bill protects the privacy, dignity, autonomy and medical choices of women.