South Australia’s proposed abortion laws explained

Could SA’s proposed abortion reforms lead to nearly full-term babies being aborted? The proposed law are explained here.

SA’s proposed abortion reforms have been explained by the SA Law Society.

The State Government’s planned reforms to South Australia’s abortion laws have drawn both praise and fierce criticism from the community since they were revealed earlier this month.

The Law Society of South Australia has moved to explain the proposed reforms, hoping to address what it called “misinformation”.

It came after SA Liberal Senator Alex Antic wrote to all state Liberal MPs and MLCs “to appeal to your sense of decency to vote again against the Bill”.

Describing the laws as “brutal and against the party’s principles, he raised concerns about late-term abortions.

Attorney-General Vickie Chapman and Human Services Minister Michelle Lensink hit back in a strong letter, defending the legislation and accusing Mr Antic of “baselessly attacking Liberal Party women in state parliament”.

The State Government introduced the Termination of Pregnancy Bill into parliament earlier this month.

Law Society of SA President Tim White said the Bill aimed to reform a 50-year-old law, and protected the “privacy, dignity, autonomy and medical choices of women”.

“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,” he said.

“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.”

DECRIMINALISATION

Mr White said the most significant change the Bill would achieve would be decriminalising abortions.

“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.”

Mr White said the legislation would create a stand-alone Termination of Pregnancy Act that would govern abortions 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.”

Mr White said the Society had examined available evidence and considered that the Bill was “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

Mr White said a medical abortion involved a woman using pharmaceutical drugs to induce an abortion.

He said no other medical treatment was required and these abortions were generally performed during 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.”

Mr White said requiring one registered health professional instead of two to approve the procedure was in line with best patient-care standards, reflected best clinical practice by ensuring other health professionals, not just medical practitioners, who are suitably credentialed to perform such procedures could do so.

He also said it allowed better access to services, particularly for women in remote or rural locations, because it removed the requirement that medical abortions must take place in hospitals.

“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 AND SIX DAYS

Mr White said the proposed laws allow a women who is not more than 22 weeks and six days pregnant to procure an abortion performed by a medical practitioner “acting in the ordinary course of their profession”.

“Under current laws, a woman seeking an abortion needs the approval of two medical practitioners (whereas) under the Bill, a pregnant woman whose gestation period has not exceeded 22 weeks 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 the procedure is to be governed under the standard health regulations that govern medical practitioners’ responsibilities and patient care.

Mr White said 22 weeks and six days is the proposed gestational limit after which two medical practitioners must be consulted because it closely aligns with clinical practice in other jurisdictions.

“It also broadly reflects (the South Australian Law Reform Institute’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

Mr White said under existing laws, it is unlawful to perform an abortion when the baby 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 six days pregnant to consult with two medical practitioners, and for both medical practitioners to consider that the termination is medically appropriate.”

COULD THE LEGISLATION LEAD TO AN INCREASE IN LATE-TERM ABORTIONS?

Mr White said terminations performed after the 20 weeks were rare and made up less than 3 per cent of all terminations.

The proposed law doesn’t specify an upper gestational limit for abortions but very few abortions tend to occur after 20 weeks.

“Of the later-term abortions, 48.3 per cent were due to the mental health of the woman, 43.3 per cent for congenital anomalies in the child, and 8.3 per cent 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’.

Mr White said there appeared 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

Mr White said it was currently unlawful for a women to abort her own pregnancy and the maximum penalty is life imprisonment

“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 LIABLE FOR PROCURING A TERMINATION?

Mr White said the answer was “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.

“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.”

CAN A HEALTH PRACTITIONER REFUSE TO PERFORM AN ABORTION?

Mr White said a health practitioner may conscientiously object to performing or 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.”