Australian law was traditionally based on the English Acts, the first of which in 1803 made abortion after ‘quickening’ a crime. ¹‘Quickening’ is the first movements of the foetus felt by the mother (from approximately 16 weeks gestation). The 1803 Act made it an offence for any person ‘unlawfully to administer any noxious and destructive substance or thing with intent to procure the miscarriage of a woman quick with child’. The intention of this Act was to protect the as yet unborn foetus. The later 1929 Act made the intentional, wilful destruction of the life of a child, capable of being born alive, a felony. ² This is known as the offence of child destruction which acts to protect the foetus during birth. These two offences potentially overlap. The 1929 Act also introduced justification for a termination of pregnancy for the purpose of preserving the life of the mother. Hence the differentiation of a lawful or unlawful abortion.

The significant case which established the principles governing abortion is the English case of R v Bourne.³ MacNaghten J considered that the meaning of the word ‘unlawful’ in the legislation was of vital and decisive significance. His Honour was influenced by the defence of ‘necessity’, used in child destruction cases where the head of the foetus was collapsed to save the mother’s life. ⁴ His reasoning was that to procure an abortion was defensible if it was necessary to save the life of the mother, ‘the unborn child must not be destroyed except for the purpose of preserving the yet more precious life of the mother’. ⁵ When MacNaghten J considered the life of the mother, he went beyond the physical fact of life and included its quality. Thus, in this case the medical practitioner undertaking the abortion was acting ‘lawfully’ if he acted with an honest belief that the intervention was to preserve the life of the mother. Furthermore, the concept of ‘life of the mother’ included both the mental and physical health of the woman. The law clearly made the decision a medical one.

The laws in several states and territories are still based on the old English laws. ⁶ The framing of criminal legislation to make abortion unlawful led the courts to develop specific criteria in the late 1960s and early 70s to enable a ‘lawful’ abortion. For example, in Victoria in R v Davidson⁷ the court ruled that for an abortion to be lawful there were two criteria: first, the accused (the doctor) must have honestly believed on reasonable grounds, that the act was necessary to preserve the woman from a serious danger to her life or physical or mental health (not merely being the normal dangers of pregnancy and childbirth) and, second, in the circumstances the termination was not out of proportion to the danger to be averted. This decision was accepted and extended in the New South Wales case of R v Wald⁸ where the court stated that it would be for the ‘jury to decide whether there existed … any economic, social or medical grounds or reason … which an accused could honestly and reasonably believe would result in a serious danger to (the woman’s) physical or mental health’. ⁹ Commentators suggest that the role of the law is to place obstacles in the way of women seeking an abortion, making doctors the key gatekeepers to decide the risks. ¹⁰

In South Australia¹¹ and the Northern Territory¹² the legislation has given meaning to the word ‘unlawful’ by establishing the circumstances in which an abortion is lawful. In both jurisdictions, before an abortion can be undertaken, two doctors must have examined the woman and agreed that to continue with the pregnancy would involve greater risk to her physical or mental health than to terminate it, or that the child would suffer such physical or mental abnormalities so as to be seriously handicapped. When making the assessment the doctors may consider the mother’s actual or reasonably foreseeable environment. In South Australia there is a requirement that the woman must have been a resident of that state for at least 2 months. The South Australian legislation also provides a maximum sentence of life imprisonment for the termination of a pregnancy where the foetus is capable of being born alive, set at 28 weeks gestation. ¹³ However, this provision does not apply when the abortion is necessary to save the life of the mother. Hence, the statutory requirements are not applicable in an emergency.

New South Wales relies on the ruling in Wald’s case, mentioned above. The law was re-stated in R v Sood [2006], ¹⁴ a termination occurring between 22–24 weeks gestation. Dr Sood failed to physically examine the woman, ask the patient her reasons for wanting the abortion or discuss possible alternatives with the patient. The medical practitioner told the patient that bleeding more heavily, and for a longer period, were the only likely complications. The doctor inserted a prostaglandin tablet into the patient’s vagina, provided her with further tablets and instructed her to take them orally. The patient was directed to return the next day for the procedure. The woman went into labour that night and gave birth to the child in the toilet. The court held that the person must honestly believe on reasonable grounds that the termination was necessary to protect the mother from a serious danger to her life. It was held that the medical practitioner had not made adequate enquiries as to the need for the abortion; had she done so, she would be able to form a reasonable belief about the associated risks. The medical practitioner was convicted for an unlawful abortion.

In the Northern Territory there is a time frame established, of no more than 14 weeks gestation, when an abortion may be undertaken. This time limit is extended to 23 weeks gestation if the doctor believes in good faith that an abortion is ‘immediately necessary’ to prevent grave injury to the woman’s physical or mental health. Moreover, if the woman’s life is in immediate danger, then no time limit applies. The Northern Territory is the only jurisdiction to impose a time limit on when a pregnancy may be terminated. Where the woman is under 16 years of age the consent of the guardian is required. The Northern Territory and South Australian legislation specifically allow a pregnancy to be terminated when the foetus has a serious hereditary disorder. ¹⁵

In Queensland and Tasmania abortion will be permitted in particular circumstances. For example, in Tasmania the Criminal Code Act 1924 was amended in 2001; section 164 makes it clear that a ‘legally justified’ abortion is not a crime. ¹⁶ This section requires two tests to be satisfied: (1) two medical practitioners must certify in writing that the continuation of the pregnancy would involve greater risk of injury to the physical or mental health of the woman, than if the pregnancy were terminated; and (2) the woman must provide informed consent, unless it is impracticable to do so.

The Queensland Criminal Code 1899 provides that:

In R v Bayliss and Cullen¹⁸ this section has been interpreted in accordance with the Menhennitt judgment in Victoria in the case of R v Davidson [1969] VR 667. However, section 282 of the Criminal Code considers the use of surgical intervention, and with the introduction of drugs to induce abortion, the law was arguably unclear. In 2009 in Queensland criminal charges were pursued against a young couple for obtaining the drug Misoprostol (a drug used in conjunction with RU486) to bring about a medical abortion. It was alleged that the woman performed an abortion by administering the drug to herself and that she was aided and assisted by her partner. This produced significant public debate regarding the abortion laws in Queensland. Section 282 of the Criminal Code was amended in 2009 to extend the exemption for doctors to perform terminations using abortion drugs. The revised section now reads:

In Western Australia abortion is illegal under the Criminal Code (WA), s 199, unless it is performed by a medical practitioner in accordance with s 334 of the Health Act 1911. It is not an offence if the medical practitioner carries out the abortion in good faith and where: