Abortion legislation reform

The South Australian Law Reform Institute at the University of Adelaide Law School has released an independent report (PDF 10MB), examining South Australian Laws relating to abortion.

The report proposes 66 recommendations and these have been individually considered by the Department for Health and Wellbeing. Overall, the vast majority of recommendations are accepted, with 15 recommendations requiring deference to the Crown for specific legal advice to ensure the intended outcome is achieved in any proposed new legislation.

View the Department’s response (PDF 341KB).

What is the SALRI ‘Abortion - A Review of South Australian Law’ report?

The South Australian Law Reform Institute at the University of Adelaide Law School released an independent report (PDF 10MB) examining South Australian Laws relating to abortion.

Has the Department for Health and Wellbeing responded to the SALRI report?

Yes, the Department for Health and Wellbeing has responded to the SALRI report ‘Abortion: A Review of South Australian Law’. View the Department's response (PDF 341KB).

Current Practice

1. What is early medical termination of pregnancy?

Early non-surgical termination has been available in Australia since 2012. This involves taking two medications orally, 24-48 hours apart to terminate a pregnancy. The medications are called Mifepristone and Misoprostol and are referred to as Marie Stopes 2-Step. Early non-surgical termination is available once a pregnancy is detected via ultrasound (usually around 5 weeks) up to 9 weeks (63 days) gestation. It is more cost-effective and non-invasive compared with surgical termination. The medication for early non-surgical terminations can only be prescribed by doctors who are registered to prescribe the medication. Registration involves undergoing training and registration with Marie Stopes. This is a requirement of the Therapeutics Goods Administration, the body that oversees pharmaceutical prescribing in Australia. Over one-third of all terminations in South Australia in 2018 were early non-surgical terminations.

For the woman, an early medical termination is experienced as a heavy menstrual period similar to a miscarriage.

2. What is surgical termination of pregnancy?

A surgical termination is undertaken for pregnancies of any gestation consistent with the legislation and uses a combination of pre-treatment medication (to prepare the cervix for the procedure) and a surgical procedure (to carry out the termination). The most common surgical technique involves dilating the cervix and using a suction device. It is usually conducted as a day surgery procedure and requires a general anaesthetic.

3. How many terminations of pregnancy are there in South Australia?

South Australia is the only state or territory in Australia to report on terminations of pregnancy.

Information is collected on every termination of pregnancy in South Australia, so there is a complete and accurate source of information. The data show that there were 4,415 terminations of pregnancy notified in South Australia in 2018, similar to 2017 where there were 4,349 terminations. In 2018 there were 13.4 terminations of pregnancy per 1,000 women aged 15-44 years.

4. What is the breakdown of termination of pregnancies performed in the 1st Trimester and 2nd Trimester?

In 2018, the majority (91.1 %) of pregnancy terminations were performed in the first trimester. The proportion performed in the second trimester was 8.9%, consistent with the average over the past five years (8.9 %). The proportion of terminations performed at gestation 20 weeks or over was 2.1%.

5. What happens in later term abortions?

In later term terminations, either an induction of labour or surgery will be used. If induction of labour is the chosen method of termination, the most usual outcome in this situation is that the baby will be stillborn. If the baby is born showing any sign of life/is born alive, in this case palliative care is provided. The baby is wrapped in a blanket and the mother is given the opportunity to hold the baby as it dies. In some instances in late termination feticide is undertaken which means the baby will be stillborn.

6. When are genetic tests undertaken and how does this affect termination of pregnancy timing?

The routine morphology ultrasound is completed at 20 weeks gestation in the vast majority of pregnancies in South Australia. If an abnormality is identified on the ultrasound, it may represent an isolated treatable congenital abnormality (e.g. isolated congenital heart lesion, amenable to surgery soon after birth) or it may be the earliest evidence of a genetic syndrome (congenital heart abnormality as the first sign of a syndrome that has a high likelihood of intellectual disability).

Genetic testing capability has progressed rapidly in the last 5 years, to the extent that it is now possible to test for many of these syndromes via exome sequencing, testing that enables thousands of genes to be tested in one test. Genetic testing has the capability to identify which fetuses with congenital abnormalities have a syndrome, which would often also indicate an intellectual disability.

This testing can be done on amniocentesis but takes 3+ weeks from the time of the ultrasound to provision of genetic results. An upper gestational limit of 22+6 weeks for termination of pregnancy means that there is insufficient time for genetic results to be returned to women in a way that gives women choice regarding termination of pregnancy. If genetic results are returned just before 22+6, there is significant time pressure on women to make what is likely to be one of the hardest decisions of their life. Removing the upper gestational limit for termination of pregnancy allows time for genetic testing; testing that has the capability to provide women with the opportunity of the most informed choice.

7. How do women know the termination of pregnancy is complete?

Following a termination procedure, doctors check either with a urine test or blood test, or in some circumstances by ultrasound, that the woman is no longer pregnant in the weeks following the termination. If the woman is still pregnant, she will be offered surgery. A continued pregnancy is exceptionally rare.

8. Is the fetus aware and does it feel pain?

The Royal College of Obstetrics and Gynaecology have developed a guideline on fetal awareness, taking a broad look at the published evidence. It found that the neurological awareness of the fetus does not develop until after 24 weeks gestation and so it was concluded that the fetus could not feel pain before 24 weeks. The fetus does not experience a state of true wakefulness in utero (in the womb) and is in a continuous sleep like state until birth.

9. What are the risks with termination of pregnancy for women?

Both early medical and surgical abortion are very safe procedures with low rates of complication. In South Australia in 2018, 3.3% of women experienced a complication related to their termination of pregnancy, the majority of people have no complications.

Early medical abortion risks:

  • Bleeding: Blood loss requiring treatment is uncommon with a Medication Abortion. Severe blood loss requiring urgent medical assessment occurs in less than 2% of cases. Need for transfusion is rare (0.3% of cases).
  • Retained products of conception: Pregnancy tissue can remain in the uterus after the abortion process in around 5% of cases. This may need additional treatment, or may resolve without treatment. If treatment is needed, in around 2.5% of cases, further medication or a surgery may be necessary to clear the uterus of the tissue.
  • Infection: Infection following Medication Abortion is very uncommon. Infection requiring treatment in hospital is rare (1:1000). If infection does occur, early treatment with antibiotics will prevent serious illness or future complications.
  • Continuing pregnancy: Clients are provided follow up testing using urine or blood tests to identify a continuing pregnancy. This occurs in less than 0.5% of Medication Abortion cases and further treatment with medication or surgery is needed.
  • Future fertility: Use of Mifepristone and Misoprostol does not reduce the risk of becoming pregnant again after the abortion. Fertility can return as early as 2 weeks after the abortion. 

Surgical abortion risks:

  • Bleeding: Blood loss during the operation is usually less than 200ml. Blood loss over 1000ml occurs rarely in 0.03% of cases.
  • Infection: Infection occurs rarely due to pre-operative screening. Infection occurs in 0.63% of cases. Early identification and treatment with antibiotics prevents complications.
  • Damage to the uterus and cervix: This is very uncommon occurring in 0.13% of cases. Further surgery may be needed in the event of a significant injury.
  • Uterine adhesions: Scarring on the inside surface of the uterus occurs very rarely after surgical abortion. If these adhesions form, it is possible that this may reduce future fertility.
  • Anaesthetic risks: Reaction to anaesthetic drugs is rare. Co-ordination and decision making will be diminished for 24 hours.

10. What is the practice for termination of pregnancy aftercare for both physical care and mental health?

Early Medical Abortion

At the Pregnancy Advisory Centre, early medical abortion patients have access to the clinic or hospital during business hours for any questions or concerns as they undergo the process. Patients also have access to 24/7 phone line for support which is run by health practitioners at Marie Stopes.

All patients either have a follow up blood test 1 week following the early medical abortion or a low sensitivity urine test that is supplied to patients to be completed 3 weeks after the abortion.
Following the abortion counselling services are available to patients via the services outlined above to ensure that women’s physical needs are being met, as well as supporting their mental health if needed. A printed information booklet is also supplied to all women outlining the aftercare process.

Surgical Abortion

At the Pregnancy Advisory Centre women undergoing a surgical abortion have access to the clinic or hospital during business hours for any questions or concerns. Women are provided with a printed information booklet prior to the procedure on aftercare and outlining any potential complications.

Patients are able to contact the Pregnancy Advisory Centre, Healthdirect (available 24/7), in addition to routine services such as GPs and hospitals.

Follow-up appointments after surgical abortion are only indicated if the patient has any concerns related to bleeding or pain. A patient is able to contact the hospital or clinic at any time point after the surgical procedure and request a follow up. Follow up is uncommon due to the fairly rapid and quick recovery process following the termination procedure.

Counselling is offered or made aware at the time of booking or consultation. Patients are aware that they can access follow up for any emotional issues following a termination at any time point and all counselling at the Pregnancy Advisory Centre is free of charge.

11. Is contraception offered to women after a termination of pregnancy?

Contraceptive information and provision is provided at the time of a consultation for all health locations providing termination of pregnancy. This is an opportunity for patients to have clarified questions about current contraceptive use that may have failed and any issue or concerns they are facing. It is an opportunity to consider alternate methods of contraception and supply them.

The oral contraceptive pill for surgical/medication patients can commence within 2 days of termination. Long acting contraception Implanon can be inserted on the day of the termination. The long acting depo injection can be provided 48 hours following early medical abortion. If an intra-uterine device is chosen, women must return at least 2 weeks following the termination. Return appointments for this procedure are available at the Pregnancy Advisory Centre and at some general practices or gynaecologists rooms.

In 2019 at the Pregnancy Advisory Centre contraceptive uptake of a long-acting reversible contraceptive at the time of termination of pregnancy included 517 intra-uterine devices and 219 Implanon insertions, in addition to script provision for other contraceptive options.

12. What is the link between domestic violence and termination of pregnancy? – include DV screening and risk assessment

Pregnancy is a known risk factor for women to experience an increase in risk of domestic violence from a partner or ex-partner. Unintended pregnancies are two to three times more likely to be associated with domestic violence than planned pregnancies.

Reproductive coercion describes behaviour from one person intended to undermine and exploit the reproductive autonomy of another, most commonly within the context of an intimate or sexual relationship. Reproductive coercion does not only involve forcing a woman to become pregnant, it can also involve significant emotional and physically violent behaviour in an attempt to force a woman into accessing an abortion. In these circumstances, pregnancy is used as a tool of control, a sign to a perpetrator of violence that they have power over their partner’s body.

The violence or coercion may inform a decision to access an abortion when a woman is concerned about the possibility of violence being witnessed or directed towards the resultant child if she were to continue the pregnancy.

Routine domestic violence screening occurs at the Pregnancy Advisory Centre and in antenatal settings and emergency departments in Hospitals. This provides a woman with an opportunity to disclose violence, coercion, seek support/access information, and be referred to other appropriate services where needed and wanted. Women are seen alone initially to assist the facilitation of this and to make the appropriate risk/safety assessments.

International evidence suggests that when women are denied abortions, the violence used against them is likely to continue. That is, the inability to terminate unwanted pregnancies can trap some women in physically violent relationships, putting both the woman and the child at increased risk of violence and other negative health consequences.

However, it is also important to understand that for some women despite the safety risks for themselves, they do want to continue a pregnancy. These types of situations also involve the counselling team liaising with antenatal teams in hospitals to ensure ongoing monitoring of safety. Sometimes it means an unborn child protection notification needs to occur because the risk to the woman and potential child’s safety is significant.

The SALRI report acknowledged the fundamental importance of any decision about abortion being made voluntarily and without coercion.

13. How do women in South Australia access a Termination of Pregnancy?

There is no referral required from a GP to access public services and women can self-refer. All women who access a termination of pregnancy are required to attend in person at a prescribed hospital or clinic on at least two occasions.

14. How do women in country South Australia currently access a Termination of Pregnancy?

In 2018, 815 women who resided in country South Australia had a termination of pregnancy. Only 142 of those women (17.4%) were able to have a termination in their country area, with the rest needing to travel to the metropolitan area for the service. The country sites where termination of pregnancy is offered are: Clare and Burra Hospital, Murray Bridge, Port Lincoln, Tanunda Hospital, Wallaroo Community Hospital.

15. What is the cost to women for Termination of Pregnancy in South Australia?

Most terminations of pregnancy that occur in SA are provided through the public health system. While women who have a surgical termination of pregnancy in a public clinic will not be charged, women who have a medical termination in a public clinic may be required to pay a gap for the medication of up to $47.00.

16. How long have Terminations of Pregnancy been available in South Australia?

Termination of pregnancy became legal in South Australia in 1970.

17. What is a lawful Termination of Pregnancy in South Australia? 

Currently, termination of pregnancy is legal under section 82A the Criminal Law Consolidation Act 1935 only if:

  • two medical practitioners have personally examined the pregnant woman and have formed the view in good faith that:
    • the continuance of the pregnancy would involve greater risk to the life or injury to the physical or mental health of the pregnant woman, than if the pregnancy was terminated; or
    • there is a substantial risk that if born, the child would suffer from serious physical or mental abnormalities as to be seriously handicapped; and
  • the procedure is carried out in a prescribed hospital or clinic; and
  • the pregnant woman has resided in SA for more than two months; and the child is not capable of being born alive.

Or if:

the pregnancy is terminated by a medical practitioner in a case where he or she is of the opinion, formed in good faith, that the termination is immediately necessary to save the life, or to prevent grave injury to the physical or mental health, of the pregnant woman; and the child is not capable of being born alive.

Or if:

the child is capable of being born alive, the termination is done in good faith for the purpose only of preserving the life of the mother.

18. What impact has the introduction of early medical termination had on Termination of Pregnancy rates?

There has been no discernible impact. The termination of pregnancy rate has continued to decline annually since 1999.

19. Who can provide a Termination of Pregnancy in South Australia?

Presently, only doctors can provide a surgical termination of pregnancy. Medical terminations of pregnancy can only be undertaken by doctors who are registered with and certified by Marie Stopes Health.

20. How are doctors who are registered with and certified by Marie Stopes Health regulated?

Doctors wanting to become a certified prescriber or dispenser of medical termination of pregnancy medications through Marie Stopes Health must first register with the organisation and complete the necessary training modules online to become certified. These modules include information on the appropriate selection of women, the counselling of women, the need for patient consent, information on the risks and adverse events, and the need to follow up women who have been prescribed medicine for a termination of pregnancy.

Marie Stopes International Australia applied for the registration of medicines for the medical termination of early pregnancy to the Therapeutic Goods Administration (TGA) and is the sole sponsor of the medicine in Australia. As these medicines are no longer patented, other applications to register these medicines for the same indications are possible and would be assessed by the TGA.

The Bill

21. Why are the proposed reforms needed?

In 1969, South Australia became the first Australian jurisdiction to legislate for the lawful medical termination of pregnancy. Over 50 years have passed since those laws were first enacted. In that time there have been significant changes to clinical practice, including improvements in medical termination methods and the modernisation of health service provision.

As a result of these developments, South Australia’s laws have failed to keep pace with changes in clinical practice and have now become in many cases a barrier to safe and available health care access for women and their families. The Bill seeks to address these concerns by establishing a modern legislative framework for the lawful termination of pregnancy which reflects best clinical practice and contemporary community attitudes.

22. How was the Bill developed?

On 2 February 2019, the Attorney-General commissioned the South Australian Law Reform Institute (SALRI) to inquire into and report in relation to the topic of abortion law reform, with the aim of modernising the law in South Australia and adopting best practice reforms in relation to the lawful regulation of termination of pregnancy.

Referral of abortion law reform to SALRI for proper investigation and recommendations for reform based on best practice in this area with the guidance of other jurisdictions was considered the most suitable way to achieve modern, effective and appropriate reform of South Australia’s abortion laws.

SALRI presented the Attorney General with its report on 31 October 2019. The SALRI report made 66 recommendations, including that abortion should be removed from the criminal law and treated as a public health issue.

The Bill before Parliament is a culmination of the work of SALRI and the Attorney General on an important matter of law reform. The Attorney General has given careful consideration to the SALRI recommendations and submissions from a wide range of stakeholders, including members of the public, in order to present a suitable legislative framework for the lawful termination of pregnancy in South Australia.

23. What does the Bill do?

Consistent with SALRI’s recommendations, the Bill repeals abortion from the Criminal Law Consolidation Act 1935 and creates a new standalone Act (‘the Termination of Pregnancy Act’) to regulate the termination of pregnancy as a lawful medical procedure. In doing so, the Bill reflects current best practice, promotes patient decision-making and respects the individual autonomy of the patient while ensuring that there are appropriate safeguarding measures in place where necessary.

24. Who was consulted on the Bill?

The reforms proposed by the Bill have been the subject of extensive consultation, both by the SALRI and the Attorney General.

As part of its referral, SALRI undertook extensive research and consultation with interested parties and the community. SALRI received 2885 submissions from members of the public using the YourSAy platform as well as a further 340 written submissions. In addition, SALRI held a range of targeted expert forums with representatives across the spectrum, including faith-based and civil society groups, the disability sector and the medical and legal professions. A series of expert forums were also conducted across a number of regional centres including Whyalla, Port Augusta, Ceduna, Port Lincoln and Murray Bridge with various health care providers.

The Attorney-General undertook broad consultation on the Bill with a wide range of stakeholders including government agencies; public and private hospitals; clinic and abortion providers; medical and legal organisations and associations; pregnancy support services and various faith and civil society groups.

25. When can a termination of pregnancy be performed?

Up to 22 weeks and 6 days

The Bill allows for a medical practitioner who is acting in the ordinary course of their profession to perform a termination (whether medical or surgical) on a person who is not more than 22 weeks and 6 days pregnant.

After 22 weeks and 6 days

Thereafter, the Bill allows for a termination to be performed by a medical practitioner on a person who is more than 22 weeks and 6 days pregnant where:

  • the practitioner is acting within their scope of practice; and
  • the practitioner has consulted with another medical practitioner and both practitioners consider that, in all the circumstances, the termination is medically appropriate.

In determining whether or not a termination is medically appropriate, a medical practitioner must consider:

  • all relevant medical circumstances;
  • the professional standards and guidelines that apply to the medical practitioner in relation to the performance of the termination.

Early medical terminations by other registered health practitioners
(up to 63 days or 9 weeks)

The Bill allows for other registered practitioners (i.e. not medical practitioners) to perform early medical terminations in certain limited circumstances.

A registered health practitioner may perform a termination by administering a prescription drug or by prescribing a drug provided that:

  • the registered health practitioner is acting within their scope of practice;
  • the termination is performed on a person who is not more than 63 days pregnant; and
  • the registered health practitioner is authorised to prescribe the drug under section 18 of the Controlled Substances Act 1984.

It is considered that this could include nurses, nurse practitioners and midwives in the first instance

26. Why does the Bill set a gestational limit of 22 weeks and 6 days?

In its report, the South Australian Law Reform Institute (‘SALRI’) made alternative recommendations concerning gestational limits for lawful terminations of pregnancies.

SALRI’s preferred recommendation was that there should be no specified criteria or set gestational limits for when a termination of pregnancy may be lawfully performed. Under this model, it was recommended that terminations of pregnancy should be available at any gestational stage with the involvement of one health practitioner.

In the alternative, SALRI recommended that termination of pregnancy should be lawfully available on request up to 24 weeks gestation with the involvement of one health practitioner and thereafter only with the approval of two medical practitioners who consider that the termination is medically appropriate.

As evidenced by the SALRI report, the issue of gestational limits is a sensitive matter and it is recognised that there are divergent views on the appropriate approach.

The gestational limit of 22 weeks and 6 days has been chosen on the basis that it most closely reflects current clinical practice and is broadly consistent with the position in other jurisdictions (e.g. NSW and QLD both impose an upper gestational limit of 22 weeks, while Victoria imposes an upper limit of 24 weeks).

The additional presence and approval of two medical practitioners after 22 weeks and 6 days gestation also recognises that terminations at a later stage of pregnancy often involve disadvantage, distress and complexities which merit the involvement of a second practitioner.
The decision to impose a gestational limit of 22 weeks and 6 days is supported and considered appropriate by the Australian Medical Association and the Royal Australian and New Zealand College of Obstetricians and Gynaecologists (RANZCOG).

27. What does the term “medically appropriate” mean?

Clause 6(1) of the Bill allows for a termination to be performed on a person who is more than 22 weeks and 6 days pregnant, where two medical practitioners have formed the view that, in all the circumstances, the termination is medically appropriate.

In considering whether a termination is medically appropriate, a medical practitioner must consider:

  • All relevant medical circumstances; and
  • The professional standards and guidelines that apply to the medical practitioner in relation to the performance of the termination.

Relevant medical circumstances may encompass a broad range of considerations including the physical and mental health of the woman; congenital anomaly of the fetus, viability of the fetus as well as any specified medical condition of the mother or any pre-existing psychiatric conditions

28. Who can assist in a termination of pregnancy under the Bill?

Only medical practitioners and certain registered health practitioners who are acting in the ordinary course of their profession are authorised to assist in the performance of a termination.
For example, the Bill would not permit a dentist or a psychologist to assist in a termination of pregnancy.

29. Does the Bill require a person to give informed consent to a termination of pregnancy?

The Bill does not prescribe any additional requirements in respect of informed consent in the context of terminations of pregnancy. The South Australian Law Reform Institute (SALRI) recommended that there should not be any further requirements beyond those in existing general health law and practice.

In particular, there are already requirements under the Consent to Medical Treatment and Palliative Care Act 1995 to obtain a patient’s free and informed consent and to provide information that a patient would consider reasonably relevant before deciding whether to undergo medical treatment (including a termination of pregnancy). This includes explaining the nature, risks and benefits of any medical treatment and the availability of any alternatives.

Clause 4 of the Bill makes it clear that the legislation is intended to operate in conjunction with the requirements set out in the Consent to Medical Treatment and Palliative Care Act 1995.
Current professional standards and clinical guidelines in South Australia also set out specific requirements for obtaining the informed consent of a woman in the case of termination of pregnancy. This includes advising patients of their choice and ensuring informed consent is obtained and that the decision is not being made under coercion. It is standard practice to also screen for domestic violence and to make an appropriate referral to support services if there is evidence that the patient is making the decision under coercion or that the patient is at risk.

30. Does the Bill require a person to undertake counselling prior to a termination of pregnancy?

There is no mandatory requirement under the Bill for a person to undertake counselling prior to seeking a termination of pregnancy. It is considered best practice for women to be offered counselling (but not required to attend) prior to a termination of pregnancy, as occurs routinely in SA now. This best practice would continue under the new Bill. This position is consistent with SALRI’s recommendation that high-quality, impartial and non-directive counselling should be available to any woman who chooses to access it and that any such counselling should be provided within appropriate professional health settings.

31. Does the Bill allow for terminations of pregnancy to be performed up to birth?

It has been stated that the Bill will allow for terminations to be performed up to birth on demand, including in situations where the fetus is viable with no indication of congenital abnormalities and the mother has “simply changed her mind” at 37 weeks.

To be clear, under the Bill, a termination of pregnancy may only be performed after 22 weeks and 6 days where two medical practitioners consider that, in all the circumstances, the termination is medically appropriate.

In considering whether a termination is medically appropriate, a medical practitioner must consider:

  • All relevant medical circumstances; and
  • The professional standards and guidelines that apply to the medical practitioner in relation to the performance of the termination.

There are a myriad of reasons why it may be medically appropriate for a pregnancy to be terminated after 22 weeks and 6 days. This includes:

  • Fetal congenital abnormalities, which may only have been detected after 20 weeks gestation;
  • Pre-existing medical condition of the mother (e.g. cancer which may require chemotherapy);
  • Pre-existing psychiatric condition of the mother. 

The SALRI expressly recommended against including an upper gestational limit for terminations of pregnancy. It considered that there is no merit in imposing an upper gestational limit for late-term abortions, noting that, in the absence of such a limit, access would still be subject to health law and professional practice and protocol. It also found that such procedures are rare and are usually performed only where a major fetal abnormality is identified late in gestation and only after careful consideration by all parties.

The current practice of termination of pregnancy is that 0.1% of terminations have occurred over 22 weeks and 6 days gestation. In South Australia, there has not been a recorded termination over 27 weeks. In the last three years of data collection, there have been 5 terminations of pregnancy between 24 weeks to 26 weeks gestation. This demonstrated that later gestation termination of pregnancy is exceedingly rare, and it is not expected to change under the new Bill should it pass into law.

32. Will the Bill lead to an increase in the number of terminations of pregnancy in South Australia?

There is no evidence to suggest that the Bill will increase the number of terminations of pregnancy in South Australia, on the basis of the experience in other Australian states. State-wide data are not available for all states and territories, however the data available show changes in termination of pregnancy method from surgical to early medical termination. This shift provides a less invasive procedure at an earlier gestation for women, decreasing the need for surgical intervention.

Following legislative reform in Queensland in 2018 Children by Choice reported a 61% drop in applications for financial assistance for termination of pregnancy and an 18% drop in termination counselling telephone requests.

In the Northern Territory following legislative reform in 2017, there were substantial changes in relation to the method of termination, with an increase in the proportion of early medical terminations and a decrease in the proportion of surgical terminations. The rate of termination of pregnancy in the Northern Territory has remained unchanged since the reform.

Victoria underwent legislative reform in 2008 and while no state-wide data are available, Marie Stopes reported that overall there was a slight decline in termination of pregnancy numbers, but a change in termination type with early medical and tele abortion demand increasing, and surgical terminations decreasing.

There are no estimates of rates of termination of pregnancy in Western Australia from the years immediately before the abortion legislative reform in 1998, but an earlier WA Health Department report estimated rates of abortion which are comparable with those in Western Australia following the legislation.

The termination of pregnancy rate in South Australia has been consistently decreasing since 1999.

33. Does the Bill allow for the use of telehealth services in relation to abortion? How would this work?

Currently, the law requires that termination of pregnancies must be performed in a prescribed hospital. As a result, this means that telehealth services cannot be used in respect of terminations of pregnancy in South Australia.

South Australia is the only Australian jurisdiction which does not allow for telehealth services to be used in relation to terminations of pregnancy.

If telehealth was lawful women would be able to access services from their community for early medical abortion. The woman would be required to have a face to face ultra sound and also to collect the medication from a pharmacy. Surgery or induction of labour would always require face to face consultation.

34. Is telemedicine for terminations of pregnancy unsafe?

Recent studies comparing adverse events for all early medical abortions performed by telemedicine or an in-person visit have shown that telemedicine is not inferior to in-person provision for non-surgical terminations of pregnancy. There is strong evidence to support the use of telemedicine as a reasonable alternative for those who may not otherwise have access to safe, high quality and effective abortion care.

35. Can a medical practitioner or health practitioner conscientiously object to perform or assist in a termination of pregnancy?

Consistent with the recommendations made by SALRI, the Bill preserves the right of a registered health practitioner to conscientiously object to provide or assist in the termination of a pregnancy, or to provide advice in relation to the termination of a pregnancy.

Where a medical practitioner or registered health practitioner conscientiously objects to provide or assist in the termination of a pregnancy, the practitioner must immediately disclose their objection to the person.

In the case of an objection to performing a termination or providing advice about the performance of a termination, the practitioner must also either:

  • transfer the care of the person to another registered health practitioner who, in the practitioner’s opinion, can provide the requested service and does not have a conscientious objection to the performance of a termination or providing advice; or
  • provide the person with information on how to locate or contact such a registered health practitioner.

A registered health practitioner who chooses to provide information to the person in the prescribed form will be taken to have met their obligations under proposed section 8(1)(e)(ii) of the Bill.

36. What would happen in the event that a child is born alive following a failed termination of pregnancy?

There are standard clinical practices in place to confirm that a termination was effective, as failed completion of termination is a known (rare) complication of early medical abortion.

Confirmation is normally done using a pregnancy test and in some cases ultrasound. In these instances, surgical termination is required.

Albeit rare, there are instances where the fetus is born alive in a termination of pregnancy (at later term) and there are clinical practice guidelines in place in such a situation. Women are counselled about this when consenting to the termination. In such circumstances, the infant is not resuscitated and nature is allowed to take its course. This clinical practice in these rare occurrences is not affected in any way by the proposed Bill.

37. Does the Bill create any offences in relation to terminations of pregnancy?

Offence for unqualified persons

As recommended by SALRI, the Bill creates a new major indicatable offence for unqualified persons who perform or assist in the performance of a termination of pregnancy.

The offence recognises the clear public interest in protecting the public from dangerous and unsafe medical practices carried out by persons who are not authorised or qualified to perform or assist in the performance of a termination of pregnancy.

The offence imposes a maximum penalty of 7 years imprisonment for an unqualified person who performs a termination of pregnancy and a maximum penalty of 5 years imprisonment for an unqualified person who assists in a termination of pregnancy.

As recommended by SALRI, proceedings for the offence will not be able to be initiated without the written consent of the Director of Public Prosecutions. This is to ensure that proceedings for the offence will only be initiated in circumstances where it is in the public interest for the offence to be prosecuted.

Reproductive coercion in the context of intervention orders

While SALRI did not recommend creating a specific anti-coercion offence, it was acknowledged that reproductive coercion is a form of domestic violence and, as such, should be recognised as such within the meaning of the Intervention Orders (Prevention of Abuse) Act 2009.

Part 3 of the Termination of Pregnancy Bill 2020 amends section 8 of the Intervention Orders (Prevention of Abuse) Act 2009 to specifically include “coercing a person to terminate a pregnancy” and “coercing a person to not terminate a pregnancy” as acts of abuse within the meaning of the Act.

Where the act of abuse is committed by a defendant against a person with whom the defendant is or was formerly in a relationship, the abuse is expressly recognised as a form of domestic abuse (section 8(8)) and the court may endorse the intervention order to reflect the fact that the order intended to address a domestic violence concern.

It is noted that a person who contravenes a term of an intervention order is already subject to significant penalties under the Act. This is especially so in circumstances where the contravention constitutes a second or subsequent offence or where the contravention involved physical violence or a threat of physical violence (maximum penalty of $ 20,000 or imprisonment for four years).

Other offences

The Bill also contains an offence for the unlawful publication of information or data by a person engaged in connection with the cooperation of the Act (clause 14) as well as offences for unlawfully disclosing personal information of a person in the context of terminations of pregnancy (clause 15).

38. Should the Bill include an anti-coercion offence for terminations of pregnancy?

The issue of reproductive coercion was a topic which was considered at length by the South Australian Law Reform Institute (SALRI).

While the term “reproductive coercion” is an emerging concept, the term is generally accepted to mean, “a behaviour which interferes with the autonomous decision-making of a woman with regard to reproductive health.” Relevantly, this includes conduct where a person is forced or coerced to either terminate or continue their pregnancy against their will.

There was universal agreement in the SALRI consultation of the fundamental importance of reproductive autonomy for women, including women with disabilities, and the need for women to make any decision relating to abortion voluntarily and without coercion. However, it was SALRI’s recommendation that any new law in South Australia relating to abortion should not include a specific anti-coercion offence (Recommendation 57).

While there was general support for the view that safeguards should be established to deter reproductive coercion, there was disagreement about whether a specific anti-coercion offence was necessary. Although there was general support for the view that safeguards should be established to deter reproductive coercion, parties considered that the preferred approach is to provide adequate domestic violence training to medical and health practitioners and for all abortion service providers to carry out domestic violence screening and counselling.

The creation of a specific anti-coercion offence was not supported by either the Victorian Law Reform Commission (VLRC) or the Queensland Law Reform Commission (QLRC) in the context of their abortion law reform referrals.

It was the VLRC’s view that the issue of reproductive coercion is best left to clinical practice as medical and health practitioners are already mindful of the risk of coercion in the context of abortion and this approach is consistent with the existing legal duty of a practitioner to obtain the patient’s informed consent. This view was shared by the QLRC which observed that there are already a range of various civil and criminal state and commonwealth laws and remedies in place which would capture instances of women being harassed or assaulted with the intention of compelling a termination or the continuance of a pregnancy.

In South Australia, there are a range of existing criminal offences which may capture instances of persons being forced or coerced to terminate or continue a pregnancy.

For example, it is an offence for a person to intentionally or recklessly threaten to cause harm to another person (section 19(2) Criminal Law Consolidation Act 1935). This offence would arguably extend to situations in which a person threatens another with physical force if they do not terminate their pregnancy or, alternatively, if the person does not cease taking steps towards accessing a termination. Similarly, depending on the factual circumstances of the matter, it is also possible that the offences of assault, causing harm and causing serious harm could apply in the context of reproductive coercion.

39. Are there any recommendations of the South Australian Law Reform Institute report that have not been implemented in the Bill?

A number of recommendations contained in the SALRI report have not been implemented in this Bill as they relate to matters which are either non-legislative in nature or which are being considered separately from the present Bill.

Safe access zones

Recommendations 49-56 of the SALRI Report relate to the creation of safe access zones. The issue of safe access zones was considered separately in the context of the Health Care (Safe Access) Amendment Bill 2020, which passed into Parliament in November 2020.

Truth in advertising services

Recommendation 31 of the SALRI Report relates to truth in advertising for counselling services. It is SALRI’s recommendation that counselling services should be required to be transparent about their underlying values when advertising and offering their services in relation to abortion. While the notion of greater transparency in counselling services is supported, it is acknowledged that there is currently no formal regulatory system in place to deal with such entities. Given the complexity of this issue, it is recommended that this issue be considered separately from the present reforms.

Administrative arrangements for termination drugs

Recommendations 17 and 18 of the SALRI report concern Commonwealth administrative arrangements for the provision of the termination drugs, Mifepristone and Misoprostol (collectively known as “MS-2 Step”) and the use of specific Medicare identification numbers for appointments related to abortion consultations and procedures. It is noted that these recommendations fall outside the scope of South Australia’s jurisdiction and are therefore matters for the Commonwealth to consider.

Offence of child concealment

Recommendation 63 of the SALRI Report relates to the offence of child concealment in s 83 of the CLCA. Section 83 makes it an offence for a person to dispose of the dead body of a child in an effort to conceal the birth of the child. SALRI noted that the offence fell outside its terms of reference but recommended that the offence be considered separately by the Attorney-General’s Department in consultation with interested parties.

It was noted that the offence has significance independent of its relevancy to abortion, i.e. the offence operates as an alternative verdict in situations where the murder or manslaughter of a child recently born has not been established beyond reasonable doubt. It is therefore not considered appropriate to deal with the offence in the context of the present Bill, noting that it has broader implications for the criminal law beyond terminations of pregnancy.

40. Will the Bill lead to poorer health outcomes for women?

The Bill will not lead to poorer health outcomes for women. The Bill represents a significant step forward in removing barriers to access for women and improving the availability of abortion health services across South Australia, particularly in rural and regional areas of the State. The Bill reflects current clinical practice, promotes patient decision-making and respects the individual choice and autonomy of the patient, while ensuring that there are appropriate safeguarding measures in place where necessary.

41. What does the general community think about abortion reform?

The South Australian community supports the provision of abortion care as health care, and respects the dignity and rights of women. There is strong majority support (about 80%) among the Australian community for abortion to be legal, readily available and a personal decision. The most recent public opinion research in South Australia showed 89% support for the availability of abortion in all or certain circumstances. Less than 5% believed that abortion should not be allowed in any circumstances.

The SALRI review noted that there is ‘wide and increasing public support in Australia for abortion, in at least some situations.’ (p 64). A recent opinion survey in South Australia found that a majority of South Australians (68%) agreed that abortions after 20 weeks are acceptable “when the woman and her health care team decide it is necessary.” A further 22% found it acceptable in certain circumstances (including illness in the woman and fetal abnormality).

42. What difference will there be with current termination of pregnancy practice?

It is expected that there will be a greater proportion of early medical abortions. This is on the basis that there will be greater availability of early medical abortions in country areas and in the community.

It is expected that country women will be more likely to have a termination of pregnancy closer to home. This is because of the removal of the prescribed hospital part of the existing legislation.

Women will have access to more information on which to make a decision about a later term pregnancy than they have now. This is because of the timing of routine pregnancy care and standard investigations including morphology ultrasound. Often families confronted with an identified anomaly at ultrasound are asked to make very complex decisions in a very short time frame, to fit within the limit of the existing termination of pregnancy legislation. If this timeline is not required, women will be able to wait for more complete genomics testing results which may provide additional information to assist in decision making. It is not anticipated that there will be an increase in the proportion of later term terminations of pregnancy.

43. Will the Bill allow for baby body parts to be harvested and/or sold?

There is no evidence to suggest that this is happening or that the Bill would allow for this to occur.

Abortion Myths and Facts

44. Having an abortion has higher health risks than continuing a pregnancy and going through childbirth

Abortions are very safe when performed by qualified practitioners. Reputable research confirms that continuing a pregnancy has greater risk to a woman’s health than having a first trimester abortion.

45. Women use abortion instead of contraception

Abortion is safe and used by women when the use of contraception fails or other factors that make using contraception difficult. The majority of women experiencing unplanned pregnancy are using some form of contraception, yet we know that:

  • no form of contraception is 100% effective, including sterilisation;
  • all “modern” methods of contraception have some associated risks/side effects;
  • finding suitable contraception is very difficult for some women;
  • sexual behaviour is not always consensual or predictable;
  • violence/abuse/control in relationships can make it difficult for women to use/access contraception;
  • over one third of all women were using contraception at the time the pregnancy occurred.

46. Abortion causes emotional/mental harm

While unplanned pregnancy does cause emotional distress for some women, research shows that for most women abortion causes no long lasting psychological consequences. Women who make their own clear decision about abortion generally find it a health enhancing experience. Having an abortion is not inherently traumatic, however, every step of the process to accessing abortion services can be made traumatic by judgmental or undermining treatment by others.
Studies do highlight risk factors, which can increase the likelihood of a woman experiencing longer lasting emotional distress:

  • Women who did not make their own decision;
  • Women who have been or felt coerced/pressured into having an abortion;
  • Women who hold strong cultural or religious beliefs that abortion is wrong;
  • Women who have a history of severe diagnosed mental health conditions.

A study published by Coleman and colleagues published in the Journal of Psychiatric Research in 2009 reported significant mental health issues associated with termination of pregnancy. This study has been subsequently discredited by reputable scientists as one that did not account for bias, including taking into account whether women had pre-existing mental illness prior to the termination of pregnancy. There were also significant errors in analysis which led to a submitted correction by Coleman.

A consistent opinion has emerged within the medical profession that the psychological effects of abortion are benign or positive and that serious adverse effects are rare.

No reputable articles conclude there is any evidence to support the term nor condition of “Post Abortion Syndrome.”

47. All religious groups oppose a woman’s right to choose

There is no one clear position or understanding about abortion and religion. Many religions and religious groups do not support a woman’s right to be in control of her body (are opposed to contraception and abortion). However, a number do support a woman’s right to make decisions about her body including the use of contraception and abortion.

48. Adoption is better than abortion

This view claims that there are infertile couples wanting children then women with unplanned pregnancies should be encourage to relinquish their offspring for adoption and some women can feel pressured by this. For many women the choice to have an abortion is because they do not want to be pregnant, or continue to be pregnant, or to give birth or to relinquish a child.

Whilst it is clear that the choice remains with women on the best option. A woman’s decision to choose adoption or abortion requires services to be supportive in a non-judgmental, pro-choice approach.

49. Only young and/or irresponsible women choose abortion

Women of all ages in their fertile years (approximately 12 to 50+ years of age) have decided to have abortions throughout the centuries for many different and similar reasons.

The belief that only “irresponsible” women choose abortion suggests that “real” women are selfless and nurturing above all other costs and a woman who chooses abortion is wilful, careless, promiscuous and selfish in not accepting their “biological destiny”.

The consistent finding of the many studies about women’s experience of abortion suggests that women of all ages, with or without children, in all occupations, religions, education levels, contraceptive practices, and marital status seek abortions.

50. Abortion causes breast cancer

Abortion does not increase the chances of being diagnosed with breast cancer.