Are Abortions Legal in Australia

In the Northern Territory, abortion is legal until the 24th week of pregnancy with the consent of a doctor. For termination beyond 24 weeks, another doctor must give consent in addition to the doctor concerned. In an emergency, an abortion is performed if the doctor deems it necessary to preserve the patient`s life. But they said that while abortion has been largely decriminalized, non-legal barriers remain for women across the country. Beyond the 20-week gestation period, an abortion will only be performed legally if at least two of the six doctors appointed by the VA Minister of Health agree that the pregnant person or fetus has a serious illness that justifies the procedure. The termination can then only take place in an establishment approved by the Minister of Health. For pregnant women under the age of 16, a custodial parent/guardian must be notified, or the Children`s Court may issue a termination order if this is not appropriate to involve the parents. It took more than a decade to overthrow this power, and there are still cost and access issues that prevent women from undergoing medical and surgical abortions. This finding is relativized because none of the judges in the present case has considered to what extent their implicit recognition of this right in this context might be inconsistent with the existence of the Victorian provisions criminalizing illegal abortion. Such a discussion could have led to a more liberal reassessment of the Menhennitt judgment. Alternatively, it could have led to a confirmation or limitation of this judgment and a convincing explanation of why it is considered appropriate for criminal law to intervene in a woman`s decision-making on abortion. The inability of the Victorian judges to provide such clarifications was a disappointment.

The unusual facts of the case had provided a rare opportunity for Victoria`s highest court to point out or justify the inconsistency of characterizing a woman`s abortion decision as one that must be respected because it is very personal to that woman and her sense of morality in one legal context, but not in another. Williams J. gave three reasons for dismissing the application. The first reason was that the Court`s inherent jurisdiction over parens patriae, which allowed it to intervene to protect vulnerable persons in the Crown, including infants, did not extend to the fetus. Indeed, a fetus does not have legal personality unless it is born alive. (117) The second reason was that it was not appropriate for the court to intervene on behalf of the applicant or on behalf of the foetus in order to protect and safeguard the future legal rights that the applicant might acquire in order to seek custody of a child after birth. (118) The last reason given by Judge Williams for his refusal to issue an injunction was that, even if the proposed abortion had been illegal under the Queensland Penal Code, the applicant would not have had the right to take legal action to curb a possible breach of criminal law, which is more a matter for public servants than for individuals. (119) Read more: Abortion is no longer a crime in Australia. But legal barriers to access remain the “safe access zones” around clinics that offer abortions have only recently been legislated in Washington state in 2021.

Abortion is legal in New South Wales, an abortion can be requested up to the 22nd week of pregnancy. Abortions can be performed after the 22nd week of pregnancy, but there are conditions, including consulting a second doctor and offering advice. In 1994, the Levine decision was reinterpreted and narrowly applied by a Supreme Court justice in the Superclinics case. This case concerned a lawsuit brought by a woman against a medical clinic for negligent non-diagnosis of her pregnancy at a time when she could have had an abortion. In the present case, the judge refused to award her damages on the grounds that the fact that she had an abortion would have been a crime if she had known that she was pregnant at the material time. This result – and the restrictive reinterpretation of the Levine decision that the judge applied – was overturned on appeal by the majority of the New South Wales Court of Appeal. Kirby P`s interpretation of the Law in this appeal now represents the legal situation in New South Wales. Kirby is slightly more liberal than the original Levine decision. The Kirby decision does not limit permitted abortion to cases where there would be a serious threat to the woman`s health during pregnancy, but also allows for consideration of health risks that may arise after the birth of the child. Kirby also shows that it would be very difficult to establish in court that a physician did not have the necessary honest and reasonable belief that the abortion was justified to avoid a serious threat to a woman`s health.

Mcnaghten J.`s instruction is also a striking confirmation of the legal view that the defence of necessity applies not only to the common law, but even to legal crimes. It is true that the management followed to some extent the analogy of the Law on the Annihilation of the Child, which contains an explicit exception for the preservation of the mother`s life; But the exception in one statute was not in itself a reason to read a similar exception in another. The only legal principle on which the exception could be based was the exception of necessity. The defence of necessity involves a choice of values and a choice of evils, and the judge`s decision is clear from his statement that “the unborn child in the womb must not be destroyed unless the destruction of that child serves to preserve the mother`s even more precious life.” Apparently, the mother`s interest in living one more day is preferred to the child`s life. (24) If an abortion is performed illegally, the woman is no longer subject to legal sanction, even in Western Australia. If an abortion is performed illegally by a doctor, he or she will now face a $50,000 fine instead of jail time. If an abortion is performed illegally by a person other than a doctor, the penalty is up to five years` imprisonment.