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Australia: Northern Territory Parliament Passes Bill to Decriminalize Abortion, Improve Access

(Mar. 28, 2017) On March 21, 2017, Australia’s Northern Territory Parliament voted to pass the Termination of Pregnancy Law Reform Bill 2017 (NT) (Northern Territory Legislation website). The Bill amends part VI, division 8, of the Criminal Code Act (NT), which currently criminalizes the administration of a drug or use of an instrument with the intention of procuring a woman’s miscarriage. (Criminal Code Act (NT), s 208B, as in force at Nov. 1, 2016, Northern Territory Legislation website.) It also repeals the current provision in the Medical Services Act (NT) that sets out the circumstances in which it is lawful for a medical practitioner to give medical treatment intended to terminate a pregnancy, replacing this with the new abortion law framework provided by the Bill. (Medical Services Act (NT), s 11, as in force July 1, 2014, Northern Territory Legislation website.)

The Bill was passed with a vote of twenty to four. (Minutes of Proceedings No. 19, Mar. 21, 2017, at 8-9, Northern Territory of Australia Legislative Assembly website.) It will come into force on July 1, 2017. (Jill Poulsen, New Northern Territory Abortion Law to Come into Effect on July 1, DAILY TELEGRAPH (Mar. 23, 2017).)

Existing Law: The Medical Services Act 

Section 11 of the Medical Services Act requires that, in order for an abortion to be performed,

  • a medical practitioner must reasonably believe that a woman is not more than 14 weeks pregnant;
  • the practitioner and another medical practitioner (one of whom must be a gynecologist or obstetrician) must be of the opinion that either
    • “the continuance of the pregnancy would involve greater risk to her life or greater risk of harm to her physical or mental health than if the pregnancy were terminated”; or
    • “there is a substantial risk that, if the pregnancy were not terminated and the child were born, the child would be seriously handicapped because of physical or mental abnormalities”;
  • the treatment must be given in a hospital; and
  • “the appropriate person consents to the giving of the treatment.” (Medical Services Act (NT), s 11(1) & (2).)

The Act also provides for abortions to be performed up to the 23rd week of pregnancy if a medical practitioner “is of the opinion termination of the pregnancy is immediately necessary to prevent serious harm to [the woman’s] physical or mental health.” (Id. s 11(3).)  Furthermore, abortion is lawful at any time if “the treatment is given or carried out in good faith for the sole purpose of preserving [the woman’s] life.” (Id. s 11(4).)

In all cases, the appropriate person to provide consent is the woman, if she is over 16 years of age and capable in law of giving consent.  The consent of “each person having authority in law” is required if the woman is under 16 years of age or is otherwise incapable in law of giving consent.  (Id. s 11(5).)

The Act provides that “[a] person is not under any duty to terminate or assist in terminating a woman’s pregnancy, or to dispose of or assist in disposing of an aborted foetus, if the person has a conscientious objection to doing so.” (Id. s 11(6).)

Issues Identified Regarding the Existing Law 

Section 11 of the Medical Services Act was drafted in the 1970s.  A discussion paper on the proposed reform of abortion law in the Northern Territory, published in 2016 by the Department of Health, stated that “there are specific elements of the current Act that have not kept pace with the changing nature of medicine, best practice in medicine, societal expectations, or legislation elsewhere in Australia,” and that aspects of the law have been identified as limiting access to termination of pregnancy for women in the Northern Territory.  (Department of Health (NT), Termination of Pregnancy Law Reform; Improving Access by Northern Territory Women to Safe Termination of Pregnancy Services, Discussion Paper 1 (2016); see also Department of Health (NT), FAQ Termination of Pregnancy Law Reform; … (2016).)

The paper went on to discuss these aspects, including the following:

  • The requirement in the Act for abortions to only take place in a hospital means that drugs such as RU486, which was registered in Australia for medical termination of early pregnancy in 2012 and is now on the Pharmaceutical Benefits Scheme (i.e., is subsidized by the government), cannot be used in practice. Such medical termination involves two stages, the second of which may be performed at a woman’s home, and the process can take several days; under the Northern Territory legislation, the woman would have to remain in hospital for the full time until the miscarriage is completed. (Discussion Paper, supra,at 2; About the PBS, Pharmaceutical Benefits Scheme website (last updated Jan. 1, 2017).)
  • Also due to the requirement for abortions to be performed in hospitals, the majority of abortions in Northern Territory, including early terminations, are performed in one of two public hospitals (free of charge for Medicareeligible resident women) and one private hospital. Medicare is Australia’s publicly funded health care system. (Discussion Paper, supra, at 2 & 8; Medicare Services, DEPARTMENT OF HUMAN SERVICES (last updated Jan. 9, 2017).) The discussion paper notes that in all other Australian jurisdictions, early medical terminations (at up to nine weeks of gestation) and surgical terminations (at up to 14 weeks of gestation) are safely conducted outside a hospital setting. It also states, “[t]here is anecdotal evidence that women travel interstate to access medical termination services.” (Discussion Paper, supra, at 5.)
  • The consent requirements in the Act mean that, where a young woman is under the age of 16, the consent of both of her parents or legal guardians must be obtained in order for a lawful termination of a pregnancy to be performed, which is not consistent with consent requirements for other medical procedures. The discussion paper also states that this requirement, “is viewed as potentially restrictive to young women accessing termination, with the potential for this vulnerable group to seek unsafe or unsupervised terminations.” (Id. at 9.)

New Framework in the Bill

The Bill is “intended to increase access by women to safe terminations of pregnancy in either of out-of-hospital or within hospital settings, with health practitioners applying evidence-based practice within a framework of professional standards and guidelines relevant to assessment and treatment.” (Explanatory Statement, Termination of Pregnancy Law Reform Bill, Serial No. 17 (Minister for Health), at 1, Northern Territory Legislation website.) 

The Bill replaces the current Criminal Code Act provisions related to abortion with a provision that criminalizes, with a maximum penalty of imprisonment for seven years, only the “termination of a pregnancy by an unqualified person.” (Termination of Pregnancy Law Reform Bill 2017 (NT), pt 6, inserting a new s 208A into the Criminal Code Act (NT).) The Criminal Code Act will now list those who are considered to be a “qualified person,” who must also act in accordance with the new legislation. The new provision clarifies that “[t]his section does not apply to a woman who consents to, or assists in, the performance of a termination on herself.” (Id.)

The legislation will now allow a “suitably qualified medical practitioner” to perform a termination on a woman who is not more than 14 weeks pregnant where the practitioner considers this to be appropriate in the circumstances, having regard to

(a) all relevant medical circumstances; and
(b) the woman’s current and future physical, psychological and social circumstances; and
(c) professional standards and guidelines. (Id. cl 7.)

Certain authorized people may supply and administer a termination drug at the direction of the medical practitioner.  (Id. cl 8.) For terminations where is woman is between 14 and 23 weeks pregnant, the medical practitioner must consult with “at least one other suitably qualified medical practitioner who has assessed the woman” and both must consider the termination appropriate in the circumstances.  (Id. cl 9.)In addition, “[a] medical practitioner may perform a termination on a woman in an emergency if the medical practitioner considers the termination is necessary to preserve the life of the woman.”  (Id. cl 10.)

The Bill does include provisions related to conscientious objection to performing abortions on the part of medical practitioners. However, unlike the existing law, such a practitioner is required to inform the woman of his or her conscientious objection in relation to the termination and to refer her, “within a clinically reasonable time,” to another medical practitioner who has no such objection. (Id. cl 11.) There is also a requirement to perform or assist with a termination in an emergency to preserve the life of the woman, despite any conscientious objection to terminations.  (Id. cl 12.)

Part 3 of the Bill provides for “safe access zones,” which are defined as being the boundary of premises for performing abortions and the area 150 meters outside that boundary. (Id. pt 3 & cl 4.)  Certain conduct is prohibited in such areas, specifically:

(a) harassing, hindering, intimidating, interfering with, threatening or obstructing a person, including by recording the person by any means without the person’s consent and without a reasonable excuse, that may result in deterring the person from:
(i) entering or leaving premises for performing terminations;
(ii) performing, or receiving, a termination at premises for performing terminations; and
(b) an act that could be seen or heard by a person in the vicinity of premises for performing terminations, that may result in deterring the person or another person from:
(i) entering or leaving the premises; or
(ii) performing a termination, or receiving a termination at the premises. (Id. cl 14(4).)

The publication of an unauthorized recording of a person who is in a safe access zone is also an offense. (Id. cl 15.)

Debate in the Parliament

The Bill’s sponsor, Minister of Health Natasha Fyles, noted in her second reading speech in the Northern Territory Parliament that there had been “passionate debate” in previous years on proposed changes to the abortion law of the territory, which had failed to pass. (Northern Territory Legislative Assembly, Debates, Second Reading Speech (Natasha Fyles), Termination of Pregnancy Law Reform Bill, at 1 (Feb. 15, 2017); Helen Davidson, Abortion Decriminalised in Northern Territory After Long Campaign, GUARDIAN (Mar. 21, 2017).) Prior to the passage of the Bill, there were further “impassioned speeches” in the Parliament, during which ”[b]oth the Government and Opposition argued the bill would bring the Territory in line with other jurisdictions, and into the 21st century.”  (Lucy Marks, NT Abortion Bill: Reform to Allow RU486 Will Deliver Equality, Lead to ‘Dark Ages,’ Politicians tell Parliament, ABC NEWS (Mar. 21, 2017, updated Mar. 22, 2017).)

An independent member, Gerry Wood, argued strongly against the Bill and put forward a number of amendments, stating that the Bill would take the territory back to “the dark ages” and would contribute to a new “stolen generation” (referring to the forcible removal of Aboriginal children pursuant to government policies). (Id.; see generally Northern Territory Legislative Assembly, Debates, Third Reading Debate, Termination of Pregnancy Law Reform Bill (Mar. 21, 2017).)  Two other independent members and a Labor Party member also voted against the Bill.  (Davidson, supra.)

Much of the final debate on the Bill was focused on the potential impact on Aboriginal women, particularly those living in remote communities in the Northern Territory. An Aboriginal member of the Northern Territory Parliament said that “she was appalled that the bill was being diverted from an issue about gender equality into one about race.”  (Id.)

Other Abortion Laws in Australia

Two other Australian jurisdictions, Queensland and New South Wales, have legislative provisions that criminalize abortion. (Id.) In the past year, bills have been introduced in both states to decriminalize abortion but have not been passed. (Chris O’Brien, Abortion Decriminalisation Bills Withdrawn from Queensland Parliament Agenda, ABC NEWS (Feb. 27, 2017); Meredith Griffiths, Abortion Laws ‘Ambiguous, Outdated’ in Qld and NSW, Doctors Argue, ABC NEWS (Oct. 9, 2016).)

Apart from the Northern Territory, as noted above, all other Australian jurisdictions allow for early medical abortion using RU486. (Suzanne Belton, Decriminalisation in the NT Signals Abortion Is Part of Normal Health Care, THE CONVERSATION (Mar. 23, 2017).) Victoria and Tasmania also have laws regarding safe access zones. (Ronli Sifris, State by State, ‘Safe Access Zones’ Around Clinics Are Shielding Women from Abortion Protesters, THE CONVERSATION (Nov. 29, 2015); Kelly Buchanan, Australia: Victorian Parliament Passes Law Establishing Protest Buffer Zone for Abortion Clinics, GLOBAL LEGAL MONITOR (Nov. 30, 2015).)