Content Warning: abortion, Roe v. Wade

As of September 2021, abortion practices have been legalised under Australian law nationwide. It’s been a long journey, from the criminalisation of all abortion through the 1861 Offences Against the Persons Act; to the Menhennit Ruling 1969, which legalised abortion only in cases of physical and mental necessity; to the removal of abortion from  the Crimes Act 1900 through the Abortion Law Reform Act 2019. At each step of the way, there have been social and political issues to contend with, from ‘pro-life’ proclamations to ‘pro-choice’ responses. The fact that we’ve made it this far, with all eight states offering lawful access to abortion, is undoubtedly a credit to our legal system.

However, with the recent Roe v. Wade overturning in the United States—not to mention the ensuing surge of ‘trigger laws’ in more than half a dozen US states—the bar has been set pretty damn low for abortion rights in the western world. The legality of abortion in Australia is cause for celebration, certainly, but the discussion shouldn’t end here.

Rather than getting caught up in the right to abortion itself, I’d like to offer a brief breakdown of the legal structures around abortion. Having the right to abortion is one thing. Knowing how to use that right is another.

Note: different states have slightly different laws and requirements for abortion. I will do my best to note any major variations.

Referral

So, someone decides they want to get an abortion. Where would they even start?

First and foremost, you’ll need to get a referral. The referral can be conducted by a general practitioner, a family planning/sexual health clinic, or another medical professional. Whomever you choose to speak to, it’s highly likely you will be expected to provide a reason for termination of pregnancy, a required under section 334 of the Health Act 1911. Whilst this is a national act, different states can interpret it in different ways. Sometimes, the Health Act will require up to two referees (see WA). More often, it’s as simple as giving a physical, mental, or financial reason for wanting an abortion, such as not feeling ready to have children, or not feeling safe about your pregnancy.

Justification requirements can also vary depending on your chosen referee and their individual proceedings around abortion. For example, doctors are not legally obligated to refer their patients for abortion if doing so compromises their personal or religious beliefs. In these instances of ‘conscientious objection’, doctors in New South Wales are obligated in most states by Section 9 of the Abortion Law Reform Act 2019 to refer their patient to another doctor.

Testing and gestation

Once you’ve been referred to a registered abortion physician, there are several simple tests to undergo, including a urine sample when you arrive to both confirm your pregnancy and screen for STIs, as well as a ‘dating ultrasound’ to gauge your length of gestation.

When it comes to length of gestation, different states have different cut-offs before an abortion is no longer viable.

One of the reasons these gestational limits differ is because it is difficult to legally, or objectively, quantify when a foetus’s rights come into fruition. There have been several interesting cases with this very question in mind, including Lynch v Lynch 1992, and Bodwitch v McEwan 2002, which both posed similar questions about a mother’s liability to her unborn child. Due to moral and social complexities, the legal rights owed to a foetus were difficult to quantify in both cases. Eventually, the conclusion was made that a foetus’s rights crystallise at birth, not before. That said, in cases of negligence (specifically, in motor vehicle accidents), the mother may be held legally accountable for any ensuing prenatal injuries.

The official justification for gestational limits is derived from foetal viability, the age from which a foetus is ‘capable of being born alive’. Cases like Lynch v Lynch and Bodwitch v McEwan help to inform and sustain our notions around foetal viability—if the foetus can survive a premature birth, then its rights, too, can survive a ‘premature’ crystallisation. That said, the number of weeks before premature birth is survivable for the foetus is highly variable (which is why, formally speaking, we see this interstate variability).

Costs

Congratulations—you have been successfully referred, examined, and treated. All that leaves is the not-so-fun question of payment.

If you have a Medicare card and the abortion is performed in a public facility (like Melbourne’s Royal Women’s Hospital), the consultation session and termination procedure are both free of charge. The only out-of-pocket cost is normally incurred by additional pharmacy fees, or in more complicated cases, where there are other health risks to consider. In such cases, added costs will be eligible for rebate. Patients who are not eligible for Medicare are offered an individualised costings plan.

On paper, this system is another credit to Australia’s government. However, the demand for affordable abortions far outweighs what the public sector can manage. Wait times for termination procedures often exceed the allowed gestational limit; even if these patients are given priority, it is inevitable for some cases to slip through the cracks. More importantly, the anxiety of entering such an overburdened system can be hard to contend with. Consequently, in all states except for NT and SA, most abortions are performed in private clinics.

A privately performed abortion can cost anywhere between $400–$900. This number depends on a variety of factors, including your gestation period, which method of abortion you pursue (medication or surgical), and where in Australia you receive treatment. These costs might also be eligible for Medicare rebate, but even so, it would be very rare to pay anything less than $250. 

In terms of follow-up after the procedure, including psychological counselling and medical check-ins, Medicare patients are eligible for three sessions (subsidised for 85 per cent of the associated cost) under the Medicare Benefits Schedule Item 8100.

Why does this matter?

If you’ve gotten this far, you might be asking yourself, why tell me all of this? Isn’t it enough that Australia has these laws in place that look out for people who want to have an abortion without getting wrapped up in the particulars? 

At the end of the day, as legal as it may be, abortion access in Australia is an ongoing discussion. There are still issues of cost to consider, of public subsidies, and—of course—of anti-abortion sentiment still lurking on the edges of the law.

It’s all very rewarding to compare ourselves to the United States right now, but we should at least have a comprehensive awareness of abortion in Australia before we go shitting on anyone else. After all, before writing this piece, most of the people I asked about abortion knew that it was legal nationwide, but that was about all they could tell me. That was all I knew, too—it was all I thought I needed to know.

Abortion is a sensitive, gruelling enough hot topic as it is. If we can understand how Australia’s legal system functions to facilitate abortion rights on a grounded, fundamental level, that’s a good enough start for me. 

Support for people considering abortion

• Counselling before and after an abortion
• Marie Stopes foundation
• 1800 My Options

How to support people in need of abortions in the United States right now

• Donate to an abortion fund (especially in the trigger states, where abortion has already been criminalised: Arkansas, Kentucky, Louisiana, Missouri, Oklahoma, South Dakota and Utah).
• Donate to smaller funds and communities who help marginalised people get access to abortion e.g. the Black Feminist Leadership fund, Indigenous Women Rising, the Mariposa Fund, and the New Mexico Religious Coalition for Reproductive Choice.
• If safe to do so, attend solidarity protests in Australia to show your support.
• More information on donation and support right now.