Explainer: Is abortion legal in Australia and what are the laws in each state?

·7 min read
<span>Photograph: Saeed Khan/AFP/Getty Images</span>
Photograph: Saeed Khan/AFP/Getty Images

Abortion access in Australia is “tracking well” despite attacks from anti-choice groups, experts say, as the world reels from the US supreme court’s decision to overturn Roe v Wade.

But they said that while abortion has been mostly decriminalised, non-legal barriers remain for women across the country.

Cost, geography and “residual stigma” can make it harder for those living outside cities, people on temporary work visas and other vulnerable groups.

Here’s the state of play for abortion access in this country.

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Is abortion legal across Australia?

The states and territories all have different rules about when and how women can access terminations. Western Australia is the only state or territory where abortion remains under the criminal code. With South Australia as the most recent to decriminalise abortions, with the changes starting on 7 July.

Related: ‘Devastating’: Australian politicians respond to US supreme court’s decision on abortion rights

Across Australia, medical abortions are available until nine weeks’ gestation (with SA restrictions to lift on 7 July). A medical abortion uses mifepristone to end the pregnancy and misoprostol to expel it. These must be prescribed by a doctor and are taken orally in the form of pills.

The limits on surgical abortions vary, from 16 weeks in the ACT to 24 weeks in Victoria, before further approvals are needed.

The head of policy at Marie Stopes International (MSI) Australia, Bonney Corbin, said Australia was on track to have universal care by 2030 as outlined in the bipartisan National Women’s Health Strategy.

“Comparatively we’re tracking very well,” she said.

“I’m confident that commitment will stick. We are in such a good place to keep moving forward with reproductive rights in Australia. We could be leading the world in 2030 if we stick to that trajectory.”

Corbin said while abortion has largely been decriminalised, some aspects of it remain in criminal law. “[Another] part of the problem is that we have different laws in different states and territories,” she said.

What are the other barriers to accessing abortion?

It can cost hundreds of dollars for a medical abortion, and thousands for a surgical termination.

Underfunding in the health system is another issue, Corbin said, along with geography.

“Geography can be a barrier to access – but that can also be a myth,” she said. “It’s all about having a good GP.

“Telehealth is now helping, because it’s accessible across Australia for the first time, but it doesn’t suit everyone’s personal circumstances. For some of those women in remote areas, travelling to a city might be a preferable option.”

It’s still a “postcode lottery” that determines what access women will get, she said, and those on temporary visas don’t have access to Medicare. Most private health insurers have a year-long waiting period before they’ll provide abortions, and even then not all of them do.

Some doctors refuse to perform abortions and don’t refer patients on, despite the obligation to, while pharmacists might refuse to supply medical abortion drugs, she said.

Related: Monday briefing: The devastating consequences of US supreme court’s anti-abortion decision

Dr Tania Penovic, a research group leader in gender and sexuality for the Castan Centre for Human Rights Law at Monash University, said doctors in a rural town, for example, might also be reliant on work in a Catholic hospital and worry they will be “blacklisted” if they provide or help people get abortions.

“The stigma is a real deterrent to working in this area,” she said.

“Why would you subject yourself to the possible personal attacks, the threats?”

Penovic’s 2021 study published in the Women’s Studies International Forum found the three main non-legal barriers to abortion access were financial, geographic, and “deficiencies in practitioner attitudes, education and training”.

The barriers have been amplified during the pandemic, she found, generating a “disproportionate and intersectional impact on the most marginalised and disempowered women in society” including women with disabilities, refugees and First Nations women.

Abusive partners can also control reproductive and sexual choices, through rape, sabotaging contraception, refusing to use contraception and then controlling women’s access to abortion.

What is the likelihood of abortion rights being rolled back?

Corbin said the anti-choice movement was “noisy” and could contribute to a stigma around abortion but was unlikely to influence policy.

“In Australia, the anti-choice movement is funded by the US, which can give them a large platform and a lot of noise, but that noise doesn’t equate to power,” she said.

“While they may seem active, they’re not going to influence change.

“[But] the rhetoric contributes to stigma, which spreads shame and doom around reproductive rights. It drains energy, but if we can focus on the fact that Australia is progressing towards reproductive justice, we can celebrate the fact that we are groundbreaking right now.”

Related: Women must be allowed to defend abortion as a sex-based right | Sonia Sodha

Penovic said women’s rights are “hard-fought” and can be “easily lost”.

For example in 1996, independent senator Brian Harradine (who held the balance of power) struck a deal with the Howard government to support a partial privatisation of Telstra in return for giving then health minister Tony Abbott the power to veto the import, manufacture or use of abortion drug RU486.

It took more than a decade to overturn that power, and there are still cost and access problems stopping women getting medical abortions, as well as surgical ones.

“Australia is tracking relatively well, but I think what this shows us is that women’s rights, gender equality is hard-fought and needs to be carefully protected because it’s vulnerable,” Penovic said. “It can very easily be lost.”

She said while the pandemic and the closure of some Marie Stopes clinics made access more complicated for some, telehealth made it easier for others. And she said that US-inspired anti-abortion movements were active in Australia.

“While it’s right to celebrate our victories, the politicisation of healthcare has real implications for access and what we see in the US is a perfect example of that,” she said.

“The other thing we’ve found is that, because of the residual stigma because of decades of criminalisation, we do have a problem.”

Penovic said while the situation in Australia was “very different” to that in the US, “we can’t rest on our laurels”.

“The politicisation of the issue, and how people can be brainwashed – it’s heartbreaking.”

What are the rules in each state and territory?

  • In the ACT, abortion is legal up to 16 weeks’ gestation and must be performed by a doctor or a nurse. After 16 weeks, the patient will need to travel interstate.

  • In New South Wales, abortions can be performed at up to 22 weeks. After that, two doctors must approve the procedure.

  • In the Northern Territory, one doctor can approve and perform an abortion at up to 24 weeks. After 24 weeks, two doctors need to approve an abortion.

  • In Queensland, abortions can be performed at up to 22 weeks. After 22 weeks, two doctors must approve the procedure.

  • In SA, from 7 July, abortions are allowed until 22 weeks and six days, after which two doctors have to agree that it is necessary.

  • In Tasmania, abortions can be performed at up to 16 weeks. After 16 weeks, two doctors must approve the procedure.

  • In Victoria, abortions can be performed at up to 24 weeks. After 24 weeks, two doctors must approve the procedure.

  • In WA, abortions can be performed at up to 20 weeks with the approval of two doctors. Termination after 20 weeks has to be approved by a panel of six doctors.

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