Abortion Offences (Vic)
Abortion is the most common surgical procedure accessed by Australians with approximately 80,000 abortions conducted every year. Abortion laws vary between jurisdictions, but in most states access is subject to gestational limits and in some parts of the country, terminations will only be provided where it is a doctor’s decision. Abortion performed otherwise than in compliance with legislation is a criminal offence in most jurisdictions. Feminists have long fought for full decriminalisation, but progress has been slow. In Victoria, the relevant legislation is the Abortion Law Reform Act, which was passed in 2008 and contains various offences relating to abortion.
Abortion at less than 24 weeks
Under section 4 of the Act doctors may perform terminations on women who are up to 24 weeks pregnant. The act does not place any restrictions on this so abortions are available to women in Victoria who are up to 24 weeks pregnant, ‘on demand.’
Abortion at more than 24 weeks
Under section 5 of the act, abortions are allowed for women more than 24 weeks pregnant if two doctors agree that it is appropriate based on all the relevant medical circumstances and the current and future social and psychological circumstances of the woman.
Check with the clinic
Different clinics in Victoria offer surgical abortions and termination by way of drugs (such as RU486 or ‘the abortion pill’) up to different gestational limits. Many clinics will not provide a termination after more than 9 or 12 weeks, despite the legislation allowing the procedure later in a term.
Private clinics charge a fee for a surgical abortion. Public hospitals will offer the procedure for free. The cost of a medical abortion is just the cost of the prescription, which is currently $38.30 with Medicare, and $6.20 with a health care card.
Under section 8 of the Act, if a woman requests an abortion or advice about abortion procedures from a medical practitioner who has a conscientious objection, the doctor must let the woman know of their conscientious objection and refer her to a practitioner who does not have an objection. In spite of any conscientious objection, a doctor must carry out an abortion if it is an emergency and the procedure is necessary to preserve the woman’s life.
Abortions by unqualified persons
It is a criminal offence for a person who is unqualified to perform an abortion. This offence can attract a penalty of up to 10 years imprisonment.
In 2015, the Victorian government passed a law making it illegal for anti-abortionists to protest against abortion within 150 metres of a health or fertility clinic. The ‘safe access zone’ laws are governed by the Public Health and Wellbeing Amendment (Safe Zones) Act 2015, which states in section 185D that within safe zones a person must not do the following:
(a) harass, intimidate, interfere with, threaten, hinder, obstruct or impede a person accessing the premises; or
(b) communicate in relation to abortions in a manner that is able to be seen or heard by a person accessing, attempting to access, or leaving premises at which abortions are provided and is reasonably likely to cause distress or anxiety; or
(c) interfere with or impede a footpath, road or vehicle, without reasonable excuse, in relation to premises at which abortions are provided; or
(d) intentionally record by any means, without reasonable excuse, another person accessing, attempting to access, or leaving premises at which abortions are provided, without that other person’s consent.
An offence against this provision is punishable by a fine of up to 120 penalty units or imprisonment for up to 12 months.
The ‘safe access zones’ provision was introduced to protect women seeking terminations and staff working at clinics from being stigmatised, shamed or humiliated. The first person to be charged with an offence under this section was Kathleen Club, who was fined $5000. Ms Club subsequently launched an appeal to the High Court on the basis that the safe access zone law contravened her implied constitutional right to freedom of political communication. The High Court rejected Ms Club’s argument, upholding the safe access zone laws as being necessary for the protection of women.
How does Victoria compare to other states?
Abortion in Victoria was decriminalised in 2008. In some other states, it remains a criminal offence unless it is done in compliance with strict regulations.
In 2015, it was reported that a lot of women were travelling to Victoria from other parts of the country to access late-term abortions at private clinics and public hospitals because of the relative ease of getting an abortion in Victoria compared to in other states. Lobby groups have been calling for legislative uniformity so that women across Australia have equal access to abortions. ACT women have the least restricted access in Australia with no gestational limits on the procedure, while in several states terminations are legal only where doctors believe the health of the woman is endangered by the pregnancy.
If you require legal advice or representation please contact Armstrong Legal.