Abortions in Australia

Approximately 70 000 to 80 000 women undergo abortions in Australia every year [http://wwww.kerrynettle.org.au]. With abortion services being accessed so easily by women, it is a frequent mistake to think abortion is lawful in Australia. However, although it is a common technique employed worldwide, it is not commonly accepted. In reality, abortions only exist for women who fit specific criteria, with all other abortions considered unlawful. Women in Australia in reality have abortions, but lawfully, they are not given the absolute right to choose abortion simply because they wish to end the pregnancy.

Every state and territory in Australia has laws legislating what is an unlawful abortion. As abortion law falls under state rather than federal law, this essay will examine the legislation that operates in Queensland’s jurisdiction. Key arguments presented by activist groups, namely both Pro-Choice and the Pro-Life organisations will be discussed. In addition, emphasis will be placed upon Queensland abortion laws becoming more synchronised with the civil rights of women.

So what is an abortion? An “abortion is defined as the ending of the process of gestation after the egg has attached itself to the uterine wall, and before the foetus is possibly capable of surviving outside the womb, with or without artificial support” [http://www.qls.com.au]. It can be spontaneous or it may be induced. Spontaneous abortion is commonly recognised as a miscarriage. A miscarriage occurs when the mother’s body expels the foetus naturally, thus being motivated for multiple reasons. However this essay will concentrate on induced or therapeutic abortions, which occur when the pregnancy is ended by surgical or other measures.

Statutory provisions in every State and Territory of Australia make it a crime to 'unlawfully' administer any poison or noxious thing, or use any instrument or other means, with intent to procure miscarriage. This crime may be committed by the pregnant woman herself or by the person performing the abortion. It is also a crime for anyone to supply or procure anything which that person knows is intended to be used unlawfully to procure a miscarriage.

The phraseology of all these Australian statutory provisions is directly based on statutory provisions enacted last century in England: sections 58 and 59 of the Offences Against the Person Act 1861. These 1861 provisions replaced somewhat comparable abortion provisions in the earlier Offences Against the Person Act 1837. These had in turn replaced provisions prohibiting abortion contained in Lord Landsdowne's Act 1828, which had in their turn superseded those in Lord Ellenborough's Act 1803. Before the introduction of Lord Ellenborough's Act, it was generally not a crime under English common law to carry out an abortion. [http://www.aph.gov.au]

The Queensland legislation regulating abortion is contained in Sections 224, 225, and 226 of the Queensland Criminal Code [1899], a statutory codification of the Common Law. The law prohibits abortion unless a mother's life is in immediate danger from the continuation of the pregnancy. Murder or manslaughter provisions would not apply as Section 292 distinguishes a person from an unborn child. In any State and Territory, the statutory provisions that prohibit 'unlawful abortion' can apply to an abortion performed at any stage of pregnancy. The legal test for when an abortion is not unlawful and is therefore permitted is different in each State and Territory of Australia. The Queensland Criminal Code [1899] also contains a defence for unlawful abortion in Section 282. This defence authorises a person to perform the surgical operation for the benefit of the patient, if the operation is reasonable due to the circumstances of that situation. The procedure must also be carried out ‘in good faith’ and with ‘reasonable care and skill’.[http://www.unistudent.com.au]. In Queensland, McGuire DCJ of the District Court in the case R v. Bayliss and Cullen [1986] 9 Qld Lawyer Reps 8 confirmed that the interpretation of the law offered in a Victorian Supreme Court Ruling, by Menhennitt J in the case of R v Davidson [1969] VR 667 also applies in Queensland. Menhennitt J explicitly raised the general legal defence of necessity and instructed the jury that acting with intent to procure a miscarriage would only be lawful if the accused held an honest belief on reasonable grounds that the abortion was both 'necessary' and 'proportionate'. Although the McGuire ruling put an end to the uncertainty in Queensland regarding the law’s interpretation of the Criminal code [QLD] on abortion, the judge was also careful to issue a reminder that his ruling did not signify that abortion was obtainable to all women on demand. The penalty that inducing an abortion carries is seven years imprisonment