SA Holding Review of Law and Practice in Relation to Abortion

Friday 7 June 2019 @ 2.45 p.m. | Crime | Legal Research

On 26 February 2019, the South Australian Attorney-General, Vickie Chapman (the Attorney-General) announced that the South Australian Law Reform Institute (the SALRI), based at Adelaide University, had been asked by the State Government to consider changes to SA’s 50 year old abortion laws, with a view to improving access and modernising the practices in SA and with a view to making abortion a regulated medical procedure under health legislation as opposed to a criminal law issue. On 31 May 2019, the public information gathering part of the Review conducted through the YouSAy website closed. The outcome of the public feedback is expected to become available in August 2019.

Background Information

According to the Fact Sheets published on behalf of the SALRI, the original law in Australia relating to abortion was to be found in the criminal laws of each colony and that legislation was and still is based, in varying degrees, on the Offences against the Person Act 1861 (UK). That legislation provided that:

". . . every Woman, being with Child, or other person who, with Intent to procure a Miscarriage, shall unlawfully administer any Poison or other noxious Thing, or shall unlawfully use any Instrument or other Means whatsoever, with Intent to procure the Miscarriage of any Woman, shall be guilty of Felony".

More recently, Australian law relating to abortions and who can perform them, has been divided between the different States and Territories. As a result, there is "no single consistent law in Australia governing abortion". The State and Territory Parliaments retain the key legal powers and responsibility with respect to the regulation of abortion in Australia and, unsurprisingly, all States and Territories have their own various laws and procedures which relate to abortion.

The Current SA Legislation and Procedures

The current SA legislation that specifically provides for offences relating to the termination of a pregnancy are located in the Criminal Law Consolidation Act 1935 (SA) (the CLCA). This legislation was enacted by amendment in 1969. As it presently stands, the law prohibits: "a pregnant woman or ‘any person’ from unlawfully administering a drug or unlawfully using an instrument upon, respectively, herself or a pregnant woman with intent to procure an abortion". For this offence, the maximum penalty imposed is imprisonment for life and it is also an offence for a person to "unlawfully supply or procure a drug or instrument knowing that it is intended to be unlawfully used or employed with intent to procure the miscarriage of any woman, whether or not she is pregnant" - a maximum penalty for this offence being three years imprisonment..

Two types of common abortion procedures are currently available to SA residents, "early medication abortion" and "surgical abortion". Both procedures are considered safe, with complications being rare. There is also a further abortion procedure that is performed for late term abortions only which is known as a "medical abortion" and involves the administration of medication to terminate the pregnancy and induce a still birth.

Scope and Timing of the SALRI Review

The Attorney-General's reference to the SALRI asked the SALRI to inquire into and report on and make recommendations on, the following:

The effectiveness of current law, practices and services in SA relating to the medical termination of pregnancy, in particular the availability and safety of services, based on advice and information from SA Health; and
How the current legal position may be amended to
(i) remove offences relating to the medical termination of pregnancy pursuant to Division 17 of the CLCA;
(ii) make recommendations for legislative reform based on best clinical practice for the lawful regulation of medical termination of pregnancy;
(iii) ensure reasonable availability and access to safe medical termination of pregnancy services.
Any other relevant matters

In providing advice and recommendations for legislative reform, the SALRI was asked to have regard to the following:

whether the termination of pregnancy should be treated as a health care issue rather than as a criminal matter;
existing practices and services in South Australia concerning termination of pregnancy including those provided by medical practitioners, counsellors and support services;
existing legal principles relating to termination practices in South Australia;
the South Australian Government's commitment to modernise and ensure safe and reasonable access to termination services for all women;
the law should be consistent with contemporary clinical practice and health regulation, including reasonable and safe access to termination services; and
the law should achieve reasonable consistency with other Australian jurisdictions and international jurisdictions that have modernised their laws relating to termination.

Motivations and Reasons for the Review

Some of the matters considered to be issues under the current laws in the CLCA are:

a woman can only have an abortion [which must be surgical] if she is less than 23 weeks pregnant;
she can only acquire an abortion in SA if she has resided in the state for more than two months
an abortion can only proceed if two doctors at a medical institution approve
medical practitioners can decline their services in the context of abortion – unless it’s an emergency – if they have a conscientious objection
medical practitioners cannot authorise or prescribe early medication abortion
there are no safe access zones

Towards the end of 2018, Greens MLA Tammy Franks proposed a Bill aiming to reshape SA’s abortion laws; with the stated objective of removing abortion from the criminal law and moving it into the health law so that it would be regulated like “. . . any other health service”. In response to this the Government, through the Attorney-General, indicated that while it supported Ms Franks for her advocacy, it found her proposed Bill was “too broad” and “fail[ed] to adequately regulate these medical procedures”. As a result this current review process was brought forward by the SA Government.

Commentary

SALRI Director Professor John Williams is quoted as saying that one of the largest legislative caveats surrounding SA’s abortion policy is that it’s a criminal law issue, and that making it a health issue would:

“ . . . stop the criminalisation of women trying to procure abortions . . . it would also decriminalise medical practitioners who undertake it unless they follow medical procedures under the legislation, . . .”.

The two-doctor requirement is also an aspect of the current law considered “offensive to women” and is described as a product of the 1970s by Co-convenor of the South Australian Abortion Action Coalition (SAAAC) and Associate Professor of Women’s Studies at Flinders University Barbara Baird:

“It was a result of really paternalistic thinking that women couldn’t be trusted to make their own decisions, and that two doctors were needed to interview the woman to make the decision for her.”

The Attorney-General has indicated in a Media Release that the SALRI was expected to finalise its report within the next six months (August 2019) and that draft legislation would follow the report.

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