Options for reform

Campaign overview | Why it's time for change | Options for Reform |

Victoria - a case study | Prosecutions in NSW and Victoria | Resources

One: Do nothing.

Two: Codify the existing law in NSW.

Make abortion lawful if the woman consents, a medical practitioner determines that the abortion is necessary because of the risk of harm to the woman if the pregnancy is not terminated and that a medical practitioner performs or supervises the abortion.

The ‘risk of harm’ would be as currently set out in NSW case law as it has developed over time, ie the medical practitioner honestly believes on reasonable ground it is necessary to preserve the woman from serious danger to her life, or to her physical or mental health.  This places the final decision with the medical practitioner.  It probably does not reflect current practice or community values.

Three: A two staged approach.

This is the Victorian model. Abortion is available to a woman, like any other medical procedure, before 24 weeks with her consent.  After 24 weeks with her consent and if a medical practitioner believe the abortion is appropriate in all the circumstances and has consulted at least one other registered medical practitioner who holds the same view. The practitioner must have regard to all relevant medical circumstances and the woman’s current and future physical, psychological and social circumstances.

This is considered the middle ground approach, with the woman the final decision maker for early abortion and doctors holding sway in the later stages. This is because other matters are considered worthy of consideration, for example the potential life of the foetus and the role of the state in safeguarding that potential life.

Four: Complete decriminalisation.

This is the model in the ACT and Canada.  Abortion is governed by the same body of legal rules that regulate other medical procedures. An abortion would be lawful if the woman gives her consent and the medical practitioner considered it ethically appropriate to do the abortion. This makes abortion a private decision, in consultation with a woman’s doctor. It would be a criminal offence for an unqualified person to perform an abortion, but the woman in this situation would not be liable to any legal sanction.

The arguments for this model, instead of the two stage approach in Victoria (3 above), recognise that the group of people seeking a late term abortion (after 24 weeks) is extremely small.  Critics of the Victorian model point to the risk of more abortions as couples may decide to abort for fear of losing their right to make their own decision, rather than adopt a ‘wait and see’ approach, allowing them to gather more information about the abnormality and undergo counselling. Without this 24 week rule medical practitioners are still able to institute gestational limits at a clinical practice level, eg in Victoria many hospitals restrict access to services after 23 or 24 weeks.