Australian Law assignment-Topic-Abortion



Introduction. 2

Drugs. 4

Legislation. 4

Amendments. 5

Expectations. 5

Practice. 6

Conclusion. 6

References. 8


                The practice of abortion is practiced all over the world in fact before the beginning of recorded history the practice was there for many years and the subject which aroused controversy as well as passion. In fact it raises a very fundamental question on the existence of life the start of life and that is how a human being is formed.  It is at the heart of such issues which are contentious within women and the right to control them. The tension that occurs between the secular and religious views within an individual is tremendous and also the tussle between the individual and the society which occurs is not less. The process also influences the conflicting rights of the mother and the fetus and the decision to abortion. But central to everything is the point of sexuality and how the pregnancy came about and was there any way to prevent it with some contraceptive methods. As the new era begins these issues tend to occupy a significant dimension around the Globe.

The study aims at providing information about the nature of policies and law to be affected on abortion in the late twentieth century. The topic remains eternally controversial and also remains in confusion as it is dictated by the state laws and not the federal laws. It may be practice of medical procedure but it is accepted as a matter of criminal law in Australia. Right now it is a political game with abortion not being regulated on a federal basis, meaning that it is not the responsibility of the federal leaders to legislate on the powers. Yet there is a notion with the Govt. that the personal beliefs are not the factors to affect political governance. The Govt. decision to pay a medi-rebate on the abortion based on the gender of the fetus was made, but was prohibited by the legislation because it was mostly anti female. There can be some incidents of anti female abortion in other parts of the Globe like Latin America and Europe but there were no evidences of anti female abortion in Australia. Each state and territory has got its own rule on abortion and the same is practiced in Australia also. The primary condition generally relates to the following:-

  • The abortion methods ie. Medical and surgical
  • Time of abortion during a pregnancy
  • The consideration of health for the women

The Australian states and the Govt. both have legislated against unlawful abortion except in their capital territory which was legalized in the last decade. Much of the questions revolve round the lawful and unlawful abortion, however the Govt. of New South Wales does not define what is an unlawful abortion. It is also unclear that who the actual culprit in an abortion is because there are some drugs in question which causes a miscarriage as good as abortion. (Fleming & Tonti, 2007)


            Convener of the Women’s Health Special Interest Group and Public Health Association of Australia has recently concluded that the women are in a habit of taking the drugs like Mifepristone (RU486) and Misoprostol. With the consumption of these drugs they are liable to be convicted under criminal charges under the current laws.  It is something that creates ambiguity among the pharmacists dispersing the drugs. In totality there are six states and territories which have been held under criminal charges of dispensing those ambiguous drugs to the women in controlling abortion without the women controlling their own termination in most of the places. Though there are not enough case laws on abortion which can be able to highlight the criminal procedures but the procedure on `children by choice’ believes that the act is an issue concerning the health and the rights of the women and also recommended that any legislation should not outline the procedure of criminal act in this. (Coleman & Cougle et al. 2005)


                In Australia abortion is still defined as the unlawful procedure under section 224,225 and 226 of the criminal code and can be prosecuted criminally if the women try to access abortion especially in Queensland area. Section 224 says that any person with an intent of miscarriage on an women causes her to take any poison or noxious things or uses any force of any kind is to be termed guilty of the crime and can be imprisoned for a period of 14 years. Section 225 says that any women with intent to make her own miscarriage with or without any child uses any force or noxious things or poison to be administered to herself is to be termed as guilty and can be imprisoned for a term of 7 years. Section 226 says that any person who gets involved in supplying such items to procure a miscarriage on a woman with or without a child is to be termed as a guilty of misdemeanor and can be imprisoned for a term of 3 years. However the exception to this procedure is the criminal code section 282 which says that it is a lawful medical procedure for a woman and not relating to the abortion specifically may relate to a charge on the doctor for unlawful abortion. (Ananth & Vintzileos et al. 2007),


                The prosecution by Cairns affected the doctors so much, that they had to suspend their services. The public outcry on the following legislation of 282 made the Govt. of Queensland to change the criminal code and made the doctors to rely on the defense that the code produced on the charges of abortion. The old text of the code is as follows:-

`A person does not become criminally responsible for performing a surgical operation in good faith and with reasonable care upon another person or an unborn child for the preservation of mother’s life’. The concern with the Govt. was the surgical operation and that the medical abortion cannot be termed as the surgical operation. The grey area was there in the system for many years and was repeatedly raised as a concern by the doctors. To amend this issue the Govt. amended the code 282 in the month of September 2009 and allowed a provision for medication and now the revised section reads as follows:-

` A person will  not be held criminally responsible for performing or providing, in good faith and reasonable care and skill, a surgical operation on or medical treatment of :

            a)    a person or unborn child for the benefit of the patient, or
            b)    a person or unborn child for the  preservation of  mother’s life;

if, while performing the operation or providing the medical treatment has been found reasonable, with a regard to the patient’s state at the time and to all circumstances. (Ekwo & Gosselink et al. 2003),


                There are a multitude of reasons why an individual doctor is unable to provide a particular sort of treatment. It can be that the treatment is outside the scope of practice or there is no appropriate facility or the equipment or there can be a lack of specialized knowledge to treat the patient. There are certain legal foundations which can be useful for the doctors and they are required to act in that way such as `a professional should not breach in his duty arising from the provisions of a professional service if it can be established that the professional acted in a way which was widely accepted by the peer professional and supported by a number of respected practitioners in the field as competent in their professional practice’. This in fact determine as to how the doctors should fulfill their care on to the patients. The legal precedences which are embedded in the professional practice should be able to give the doctors a chance to see the limitations in their professional practice and take the patient’s care as their first concern. However, their personal views should never affect the patient care By paying respect to conscientious objection, the code warns the doctors against using objections to impede access to treatments that are legal, Keeping this in mind, it’s clear that the current professional standard of care that the doctors need to meet in order to maintain professional registration is not something different, and no more than the requirements of Victorian and Tasmanian laws. (Wallach, 2000).


            These laws they don’t force the doctors to perform procedures in which they have a conscientious objection, but they require the appropriate referral for legitimate treatment of their patients on whom they cannot or are not interested to treat. In an article published in 2009 about the state of conscientious objection in the United States law, the researchers have established a new rule from DHHS (Dept. of Health and Human Services) on the field of health care conscience war, which altered the federal conscience law. It demonstrates to raise the awareness and ensure compliance with the protection status of federal health care and conscience services. Existing laws are more tied to the funds from federal backings and address moral or religious objectives in sterilization and abortion and they make a protection for the doctors, nurses, physicians and other health care personnel.  Conscience is a sort of burden that belongs to an individual; patients are not required to shoulder the burden. They actually need the legal choices presented to fit the evidences and not the randomness of an individual morality. The objection to conscience must not be a justification to withhold a referral and should not be given a greater weight than any other limitation. The collective professional standards should also not be lowered and the avoidance of legal precedents, inviting the individual practitioner’s moral values at the cost of upholding common standards of patient care. Someone may find the law uncomfortable but a balance has to be striked in an appropriate manner.  (Reardon , et al. 2002) ‘


                Beyond these challenges which are conceptual to determine whether the written law or the policy of a country conforms to the practice observed or inferred, poses a big problem. In lot of countries where the performance of abortion is considered to be illegal, statistics shows that large numbers are being carried out, illegally, with a few prosecutions. Out of approximately 50 million abortions every year in the world, estimates figure out 40% as the number performed illegally (WHO, 1994).  In all the countries, the authorities on law enforcement ignore or tolerate the illegal abortions or for that matter unofficially the license clinics for the purpose. Numerous factors are to be held responsible for the cause. There are some cases of ease, with which abortions can be performed and a lacking will or resources to prosecute, out of more pressing social needs, and its clandestine nature cannot be waived off.  In certain other countries where abortion is technically legal, the access given to authorized facilities and personnel may not be that much, or lack in resources to pay for the abortion resulting in more illegal abortions. The Govt in few odd cases might not have issued any regulations allowing the law to be implemented more effectively in the cases of death of a pregnant woman. The advancement of the pills or the drugs like RU 486 makes an abortion easier these days without any specific facility will only increase the gap between the practice and the law. (Parliament of South Australia, 2004),


Fleming J & Tonti-Filippini, N (2007), Common Ground? Seeking an Australian Consensus on  Abortion and Sex Education, New South Wales: St Pauls Publications, p. 44.

Coleman PK, Reardon DC, Strahan T & Cougle JR (2005), ‘The psychology of abortion:

review and suggestions for future research,’ Psychology and Health 20(2):237-271

Ananth CV, Smulian JC and Vintzileos AM (2007), ‘The association of placenta previa with history of caesarean delivery and abortion: a metaanalysis,’ Am J Obstet Gynecol, 77 (5): 1071-8;

Ekwo EE, Gosselink CA, Moawad A (2003), ‘Previous pregnancy outcomes and

subsequent risk of preterm rupture of amniotic sac membranes,’ Br J Obstet Gynaecol, 100 (6): 536-41; Sun Y et al. (2003), ‘Induced abortion and risk of subsequent miscarriage,’

Int J Epidemiology, 32 (3): 449-54; Wallach EE (2000). ‘Fertility after contraception or abortion,’  Fertility and Sterility 54 (4): 559-573.

Reardon DC et al (2002) ‘Deaths associated with pregnancy outcome: a record linkage

study of low income women,’ Southern Medical Journal, August, 95(8): 834-841

Parliament of South Australia (2004), 33rd Annual Report of the Committee Appointed to Examine and Report on Abortions Notified in South Australia for the Year 2004.

 Allanson S & Astbury J (2005), ‘The abortion decision: reasons and ambivalence’ J

Psychosom Obstet Gynecol, 16: 123-136.