Congratulations to the South Australian Law Reform Institute (SALRI), based at the Adelaide Law School. In October, 2019, after extensive research and public consultations, SALRI submitted a 506-page report commissioned by the Attorney General of South Australia. Many thanks to Katelyn Sheehan, LL.M., for providing this brief overview:
“Abortion: A Review of South Australian Law and Practice,” by John Williams, David Plater, Anita Brunacci, Sarah Kapadia and Melissa Oxlad, (Adelaide, Australia: South Australian Law Reform Institute, Oct. 2019) 560-page review.
So far, all Australian states and territories except South Australia have fully decriminalised abortion, starting with Western Australia in 1998. South Australia’s current abortion laws, based on the UK Abortion Act 1967, date back to its Criminal Law Consolidation Amendment Act of 1969, in which abortion is deemed a criminal offence, except with the approval of two physicians who deem that continuance of the pregnancy endangers the woman’s life, physical or mental health, within her actual or reasonably foreseeable environment, or that the resulting “child would suffer from such physical or mental abnormalities as to be seriously handicapped.” (p.15) Half a century later, many provisions of this law no longer reflect best clinical practice, nor significant advances in health care provision, such as medical abortion (using pills) outside medical facilities. These outdated provisions now obstruct equal access, particularly for South Australian citizens who are disabled or who live in rural areas.
In February 2019, the Attorney-General of South Australia commissioned SALRI “to consider changes to the State’s abortion laws with a view to improve access and modernise the practice in the State and with a view to making abortion a regulated medical procedure under health legislation as opposed to a criminal law issue.” (p.11)
SALRI then undertook extensive community consultation on the inadequacies of the current law, and analyzed recent reports and legislation in other Australian regional jurisdictions, as well as New Zealand. SALRI’s 66 recommendations (outlined pp.17-22, cf. 24-36) include:
— Allow abortion on request within 24 weeks, with the same informed consent that is already integral to health law and practice, but without any mandatory waiting period.
— After 24 weeks’ gestation, require approval from two medical practitioners, an approach which reflects current clinical practice and also ‘recognises that terminations at this later stage often involve disadvantage, distress, complexities and higher risks to the pregnant woman’. (pp.18-19). Late-term procedures should be “very rare and only undertaken after careful consideration by all parties and in the most compelling circumstance.”(p.20)
—Disability or ‘fetal abnormality’ should no longer be mentioned as a ground for abortion.
— Exempt the woman and her qualified healthcare provider from criminal liability, but an unqualified person who performs or assists in an abortion commits an offence.
— Remove outdated restrictions as to where a pregnancy can be terminated, and by whom, which impede equitable and effective access, especially for regional, rural, remote and Aboriginal communities.
—Conscientious objection should be limited to those health practitioners directly involved in the procedure, except in an emergency situation. Objectors must provide timely referral to a willing and able provider nearby.
—Counselling, including genetic counselling, should be impartial and non-directive, at the request of the woman.
—Safe access zones are needed to prevent harassment of women or healthcare providers. Base such provisions on the law in Victoria, recently upheld by the High Court of Australia (Clubb v. Edwards – see our blogpost)
One month after the Attorney-General received the report, South Australia’s Ministry of Health and Well-being responded individually to SALRI’s 66 recommendations, accepting the majority of them, and noting 15 recommendations to which they would defer to the Crown for specific legal advice.
We look forward to hearing which of SALRI’s recommendations will be addressed in the South Australian health ministry’s proposed plan for decriminalization, now openly discussed on the ministry’s new “Abortion Legislation Reform” webpage.
RELEVANT RESOURCES:
SALRI’s 2019 independent report on the operation of South Australia’s existing abortion laws, with 66 recommendations for decriminalization:. 506-page review.
Response to SALRI Report by South Australia, Ministry of Health and Well Being – Nov. 2019. 15-page response. “Abortion legislation reform” webpage.”
“Access to Abortion: An Annotated Bibliography of Reports and Scholarship.” Second edition 2020, 44 pages, analyzes reports and other resources, focusing on hidden barriers to abortion access and recommendations for reform. Annotated Bibliography.
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Compiled by: the International Reproductive and Sexual Health Law Program, reprohealth*law at utoronto.ca. See Program website for our Publications, Information resources, and Reprohealthlaw Commentaries Series. TO JOIN THE REPROHEALTHLAW BLOG: enter your email address in the upper right corner of our blog, then check your email to confirm the subscription.
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