THE REALITY
Prior to the passage of the Termination of Pregnancy Act 2021,[1] over 4,300 babies died every year through abortion in South Australia. This number is likely to increase given that the 2021 Act widens access to abortion at all stages of pregnancy.
95.3% of the abortions conducted in South Australia are for the “mental health” of the mother, not because the child or mother has a physical medical issue.[2]
Only 4.1% of all abortions in South Australia are for a congenital anomaly.[3]
In 2017 only 3 of the 4,349 abortions conducted in South Australia were actually due to a pre-existing psychiatric condition of the mother, yet 4,146 were labelled for “mental health.”[4]
Only 29.9% of abortions after 20 week’s gestation in South Australia are due to congenital anomalies.[5]
In 2017, 1,581 of the 4,349 terminations were for women who had already previously had an abortion.[6]
Of the 111 abortions after 20 week’s gestation conducted in South Australia in 2017, only 3 were due to a medical condition of the mother.[7]
72.9% of all abortions in South Australia are for women between the ages of 20 and 34. Only 8.9% are for women 19 and under.[8]
1 in 6 Australian couples of reproductive age struggle with infertility and could be interested in adoption, if it were an option.[9]
The Law
SA law now allows termination up to birth, even if the mother and baby are both physically healthy.
Prior to the passage of the 2021 Act, abortion was only permitted after gestational viability to preserve the life of the mother. The 2021 Act reverses this and has the substantive effect of allowing abortion until birth.
key changes in the act
Up until 22 weeks and 6 days, abortion is permitted for any reason and is at the sole discretion of the mother. (Section 5)
Abortion is permitted after 22 weeks and 6 days until birth with the approval of two doctors. Section 6 permits late-term abortion for a wide range of reasons, including to save the life of the pregnant woman or another foetus and where there are significant risk of foetal anomalies. This section also permits abortion until birth where continuation of the pregnancy ‘would involve a significant risk of injury to the physical or mental health of the mother’. (Section 6)
Doctors have a duty to provide medical care to babies born alive after abortion. (Section 7)
Doctors have a duty to provide all necessary information to a pregnant woman about access to counselling. (Section 8)
Doctors have a range of mandatory considerations to take into account when considering performing an abortion after 22 weeks and 6 days. (Section 9)
Doctor who have a conscientious objection to abortion are required to provide a pregnant woman with information of the contact details of a SA Government service which provide abortion. (Section 11)
Abortion is not permitted for sex-selection.
(Section 12)
The 2021 Act and late-term abortion
Section 6 of the Act allows abortion after 21 weeks and 6 days for reason of a pregnant woman’s physical or mental health. It is important to recognise that ‘mental health’ has become a catch-all which can be used as a proxy to permit abortion for virtually any reason.
In SA prior to gestational viability and in other jurisdictions which allow abortion until birth for mental health reasons, the single most common reason for abortion is “mental health” and it is broadly interpreted. For example, in South Australia in 2017 (the most recent year we have data available for), only 3 of the 4,349 abortions were attributed to a pre-existing psychiatric condition of the mother, yet, 4,146 abortions (95.3% of all abortions) were attributed to being for a “mental health” reason.[10] This demonstrates the ease with which a requirement that an abortion be justified on the grounds of mental health is satisfied.
It is important to recognise that a pregnant woman’s mental health is likely to be affected in pregnancy and following the birth. Antenatal depression refers to depression during pregnancy and affects up to one in ten women in Australia; postnatal depression, which develops between one month and up to one year after the birth, affects one in six women. [11]
Australian law acknowledges that it is unacceptable to end the life of a newborn baby on the basis of postnatal depression. Both postnatal and antenatal depression can be effectively treated through other means such as medication and mental health support.
| Former Law | 2021 Act | |
|---|---|---|
| Location of the Law | Sections 82–82A Criminal Law Consolidation Act 1935 | Termination of Pregnancy Act 2021 |
| Abortion at sole decision of mother | NO | YES: up to 22 weeks and 6 days gestation |
| Threshold | 28 weeks OR where it is shown baby could survive independently (accepted by SA health to be 23 weeks) | 22 weeks and 6 days |
| Requirements to obtain abortion from 0 weeks to Threshold | Where two practitioners conclude any of the following:
| NONE |
| Requirements to obtain abortion post threshold up to birth | Only permitted to preserve the life of the woman. | Where a termination is medically appropriate and two medical practitioners agree on any one of the following: |
| Concientious Objection | YES — unless emergency procedure is required to save mother’s life | YES — unless emergency procedure is required to save mother’s life Must inform of objection AND refer to a practitioner willing to perform the termination. |
| Requirement to provide information regarding counselling | NO | YES — practitioner must provide all necessary information about access to counselling, including publicly funded counselling |
| Duty of Care for baby born alive as a result of abortion | NO — not applicable as abortion not allowed where baby is capable of a separate existence | YES — same duty of care obligations as if baby were born naturally |
[1] Hereafter referred to as “the 2021 Act”.
[2] Pregnancy Outcome in South Australia 2017, Wellbeing SA, October 2019. p49.
[3] Ibid 49.
[4] Ibid 49, 50.
[5] Ibid 38, 50.
[6] Ibid 53, 54.
[7] Ibid 49, 50.
[8] Ibid 1, 50.
[9] IVF Australia, What is Infertility? (Web Page) .
[10] Pregnancy Outcome in South Australia 2017, Wellbeing SA, October 2019. The remaining 200 abortions were for congenital abnormality (177) and for “a specified medical condition of the woman” (23).