6 Options for Reform

Terms of Reference

  1. 6.1 Several government policies and objectives, referred to in the terms of reference, have shaped the commission’s options for reform of the law of abortion.
  2. 6.2 It is important to identify these policies and objectives.
  • The terms of reference make it clear that it is governmental policy to decriminalise abortion. The Attorney-General has sought advice from the commission about options to ‘remove from the Crimes Act 1958 offences relating to terminations of pregnancy where performed by a qualified medical practitioner’.
  • The government aims to clarify the law. The terms of reference note that it is ‘essential that the law is modernised, clear and widely understood’.
  • The government aims to modernise the law so that it reflects ‘current community standards’.
  • The government does not seek to alter current clinical practice.
  • The government does not want new laws to cause a change in the rate of abortion or to restrict access to abortion services: ‘reform should neither expand the extent to which terminations occur, nor restrict current access to services’.

Legislative Options

Introduction

  1. 6.3 The commission has devised three legislative models which reflect the policies and objectives referred to in the terms of reference.
  2. 6.4 The models are designed to operate in conjunction with the laws that regulate the relationship between doctor and patient and govern the medical profession. All three models for reform allow abortion to be lawful only when performed by, or under the supervision of, a qualified medical practitioner.
  3. 6.5 There are several legal issues associated with reform of the law of abortion that require consideration, regardless of the model that is ultimately chosen. The offence of child destruction in section 10 of the Crimes Act is dealt with in Chapter 7. A broad range of reform proposals suggested in submissions, or which commended themselves to the commission once the models had been prepared, are considered in Chapter 8.
  4. 6.6 Some women, such as those who are very young or are profoundly cognitively impaired, may not have the capacity to consent to an abortion. The commission believes it is unnecessary to enact special legislation to deal with these instances. The existing law appropriately protects the interests of vulnerable people and regulates the activities of medical practitioners.1
  5. 6.7 The models differently regulate decision making about abortion.
  6. 6.8 Model A restricts the ground upon which a woman may have an abortion at any time throughout her pregnancy to the risk of harm to her if the pregnancy is not terminated. Final decision-making responsibility rests with the medical practitioner who performs or supervises the abortion.
  7. 6.9 Model B allows a woman to have final decision-making responsibility about an abortion until the end of her 24th week of pregnancy. After that point, decision-making responsibility shifts to her medical practitioner, who must determine if there is a risk of harm (as described in Model A) to her for an abortion to be lawful.
  8. 6.10 Models A and B contain a professional sanction if a medical practitioner performs an abortion which is not authorised by law. A medical practitioner who performs an unauthorised abortion would be deemed to have engaged in professional misconduct.
  9. 6.11 Model C allows a woman to have final decision-making responsibility about an abortion throughout her pregnancy.

MODEL A

Codification of the current circumstances in which an abortion is lawful: risk of harm to a woman governs access to abortion throughout pregnancy (the Menhennitt rules)

General Description

MA.1 Under this model, the Menhennitt rules, or a variant of those rules, would continue to govern the circumstances in which an abortion is lawful. However, those rules would be included in legislation, and the consequences of failing to comply with those rules would change. This model would cause the Menhennitt rules, or a variant of them, to receive parliamentary endorsement almost 40 years after they were devised.

MA.2 While this model would not materially alter the circumstances in which an abortion is lawful, it would alter the sanctions that apply when a medical practitioner performs an abortion which is not authorised by law.2 Those sanctions would become professional rather than criminal.

MA.3 This model may be characterised as one in which a women’s consent to an abortion is a necessary but not sufficient reason for an abortion to be lawful. Once consent is given a medical practitioner would have a restricted, discretionary power to determine whether it is lawful to perform an abortion.

MA.4 An abortion would be lawful only when a doctor was satisfied that it was necessary because of the risk of harm to the woman if the pregnancy was not terminated. If not satisfied of this the doctor must refuse an abortion. Thus, while both a pregnant woman and her doctor would have roles in the decision-making process, the doctor would be the ultimate decision maker.

Circumstances in which an abortion would be lawful

MA.5 An abortion would be lawful in the following circumstances:

  • A woman consents3 to the surgical or medical procedure which is used to terminate her pregnancy.
  • A medical practitioner determines that the abortion is necessary because of the risk of harm to the woman if the pregnancy is not terminated.
  • That medical practitioner performs, or supervises the performance of, the abortion.

The risk of harm is determined in one of the following ways.

Option 1

The medical practitioner honestly believes on reasonable grounds that: (1) the abortion is necessary to preserve the woman from serious danger to her life, or to her physical health or mental health; and (2) the risk of having the abortion is proportionate to the risk faced by the woman if the pregnancy is not terminated.

This option describes the risk of harm in very broad terms and provides no guidance concerning the matters that may be taken into account by the medical practitioner when reaching a belief about this matter. This option is a restatement of the Menhennitt rules.4 It is vague and may not provide the clarity sought by the medical profession and the broader community.

Option 2

The medical practitioner honestly believes on reasonable grounds that: (1) the abortion is necessary to preserve the woman from serious danger to her life, or to her physical or mental health. In reaching a decision the medical practitioner may take into account economic, social or medical matters that may affect the woman’s physical or mental health if she continues with the pregnancy and that may arise at any time during the pregnancy or later; and (2) the risk of having the abortion is proportionate to the risk faced by the woman if the pregnancy is not terminated.

The second option describes a range of matters which may have an impact upon a woman’s physical or mental health if the pregnancy is not terminated and which may be taken into account by a medical practitioner when determining whether an abortion is necessary because of the risk of harm to the woman. This option is a restatement of the law of abortion that has developed over time through case law in NSW.5

Option 3

The medical practitioner honestly believes on reasonable grounds that the abortion is necessary to preserve the woman from a risk of harm to her life, or to her physical or mental health.

Option 1 and Option 2 expressly require the medical practitioner to make a decision about the proportionality of the risk of harm to a woman having an abortion with the risk of the harm that she may suffer if the pregnancy is not terminated. The third option does not expressly refer to proportionality. The rationale for the separate proportionality requirement, drawn originally from the English decision in Bourne6 upon which the Menhennitt rules were based, may no longer exist for several reasons.

First, abortion is now a much safer procedure than it was in 1938 when Bourne was decided.

Secondly, the law now promotes the notion that patients as well as doctors have a role in deciding whether the risks associated with a medical procedure are proportionate to the harm that may be suffered if there is no treatment.7 The law that governs allmedical procedures requires a doctor to advise a patient of material risks associated with the procedure.8

Thirdly, the law that governs all medical procedures requires a medical practitioner to exercise proper clinical judgment before determining whether an abortion is necessary because of the risk of harm to a woman. When making this clinical judgment the doctor must consider and balance the risks associated with having an abortion with the risk of harm that the woman may suffer if the pregnancy is not terminated.

Options 1 and 2 stipulate that the risk of harm to the woman must involve a serious danger to her life, or to her physical or mental health. It is arguable that this form of words adds an unnecessary degree of complexity to the task of determining whether there is a risk of harm to the woman in proceeding with the pregnancy. In practice, it would be difficult to determine whether a risk of harm crosses a threshold that causes it to become a serious risk to a person’s life or health.

The third option contains a simpler and clearer formulation of the risk of harm to a woman and it appears to reflect current clinical practice more closely than the first two options.

Consequences of performing an abortion that is not lawful

MA.6 An abortion that does not fall within the circumstances set out in Model A would be unlawful. The legal response to an unlawful abortion would depend upon the identity of the person who performed it.

MA.7 It would be a criminal offence for an unqualified person to perform an abortion in any circumstance.9

MA.8 An abortion performed by a medical practitioner when it was not lawful to do so would result in a professional sanction. A medical practitioner who performed an unauthorised abortion would be deemed to have engaged in professional misconduct, rendering that person liable to sanction under the provisions of the Health Professions Registration Act 2005.10 To prove that an abortion was unlawful, it would be necessary to establish that the medical practitioner did not hold an honest belief on reasonable grounds that the abortion was necessary because of the risk of harm to the woman.

MA.9 A pregnant woman who has an unlawful abortion would not be liable to any legal sanction.11

Commentary

MA.10 Under Model A, final decision-making authority rests with a medical practitioner. A medical practitioner would be required, at the risk of serious professional sanction, to refuse a woman an abortion unless satisfied that there was a risk of harm to her if the pregnancy was not terminated. A woman who was unable to satisfy a medical practitioner that she faced risk of harm by not having an abortion would be compelled to continue with her pregnancy.

MA.11 While this model would be a legislative affirmation and restatement of the existing judge-made law about lawful abortion in Victoria, it probably does not reflect current clinical practice and current community standards.

MA.12 The policies upon which this model is based may be described as follows:

  • Abortion is an exception to a woman’s general right to determine what medical procedures she will undergo and what relationships she will enter.12

– the exception operates throughout a woman’s pregnancy

– the exception exists because there are other matters which should be taken into consideration when the medical procedure is abortion, such as the potential life of the fetus and the role of the state in safeguarding that potential life­

– the exception does not operate when there is a risk of harm to a woman in continuing with the pregnancy.

  • A medical practitioner is the best-placed person to determine whether an abortion is necessary because of risk of harm to a woman.
  • If a medical practitioner determines that a woman faces a risk of harm in continuing with her pregnancy, an abortion may be performed at any stage of her pregnancy.
  • A medical practitioner who performs an abortion when not authorised by law should be liable to professional sanction.

Legislation required to implement Model A

MA.13 The following legislative recommendations accompany this model:

  • repeal sections 65 and 66 of the Crimes Act
  • include a provision in the Crimes Act which provides that any common law offences relating to abortion cannot be revived and are abolished13
  • include a provision in the Health Act 1958 which provides that a medical practitioner is authorised to perform an abortion upon a woman if the woman consents and if the medical practitioner determines that an abortion is necessary because of the risk of harm to the woman if the pregnancy is not terminated
  • risk of harm to the woman may be defined as set out in options 1, 2 or 3.
  • include a provision in the Health Act which provides that a medical practitioner who performs an abortion when not authorised to do so engages in ‘professional misconduct’ for the purposes of the Health Professions Registration Act
  • refer to the legislative recommendations in connection with section 10 of the Crimes Act in Chapter 7 and in relation to associated legal issues in Chapter 8.

 

MODEL B

A two-staged approach to the regulation of abortion: a woman’s decision during early pregnancy; medically determined risk of harm to the woman governs late abortion

General Description

MB.1 Under this model, different legal rules govern decision making about abortion during two distinct stages of a woman’s pregnancy. A line determined by gestational age would separate the two stages. The stages are referred to as ‘early’ and ‘later’ for the purposes of this model.

MB.2 During the early stages of a pregnancy the same body of law that regulates the provision of other medical services would govern access to abortion. Abortion, like all other medical procedures, would be a private decision for a woman in consultation with her doctor. A woman would be the final decision maker because her consent would provide the legal authority for an abortion that was performed, or supervised by, a medical practitioner.

MB.3 During the later stages of a pregnancy a medical practitioner would be the final decision maker. An abortion would not be lawful unless a medical practitioner was satisfied that it was necessary because of the risk of harm to the woman if the pregnancy continued.

MB.4 Determining where to place the gestational line that divides the two stages of this model is a task of considerable complexity. Current clinical practice and experience elsewhere are important. The commission has concluded that 24 weeks gestation is the most appropriate point at which to place the dividing line. A committee of the Westminster Parliament recently affirmed this placement of the line, which has formed part of British abortion law for many years. It is current clinical practice in Victoria for the decision-making processes about abortion to change once a woman’s pregnancy reaches a stage around 24 weeks gestation.

Circumstances in which an abortion would be lawful

An abortion would be lawful in the following circumstances:

1. if the pregnancy has not exceeded its 24th week, when a woman consents to the surgical or medical procedure used by a medical practitioner to terminate her pregnancy14

2. once the pregnancy has exceeded its 24th week, if

a. a woman consents to the surgical or medical procedure which is used to terminate her pregnancy

b. a medical practitioner determines that the abortion is necessary because of the risk of harm to the woman if the pregnancy is not terminated, or two medical practitioners independently determine that the abortion is necessary because of the risk of harm to the woman if the pregnancy is not terminated

c. that medical practitioner (or one of them if the two medical practitioner option is chosen) performs, or supervises the performance of, the abortion

d. the risk of harm may be determined in one of the ways set out in options 1, 2, and 3 in Model A.

Options

This model contains two ways of dealing with the requirement for medical determination of risk of harm to a woman before an abortion may be lawfully performed. The determination could be made by one medical practitioner alone, or by two medical practitioners acting independently of each other.

There are arguments in favour of both options.

If the determination must be made by two medical practitioners, acting independently of each other, issues of cost, delay, and fairness of access to health services will arise and may exacerbate existing inequities. Some people may regard this requirement as unnecessarily intrusive because abortion is a deeply private decision.

There are two reasons, however, why it may be beneficial to require a determination by two independent medical practitioners.

First, it is common clinical practice to rely upon more than one medical practitioner’s opinion whenever the decision involves complex considerations. Such an approach may: promote community confidence in the quality of decision making; generate an increased sense of confidence in the correctness of the decision among the treatment team that will perform the abortion; and it may relieve some of the pressure that individual doctors may experience when making decisions of this nature.

Secondly, this requirement would largely reflect current clinical practice. Late abortion decisions in public hospitals are made by committees of health professionals, known as Termination Review Panels.15 In the private system, the opinion of an additional medical practitioner is sought, as a matter of good clinical practice, when a woman requests a late abortion.

Consequences of performing an abortion that is not lawful

MB.6 An abortion that does not fall within the circumstances set out in this model would be unlawful.

MB.7 It would be a criminal offence for an unqualified person to perform an abortion in any circumstances.

MB.8 An abortion performed by a medical practitioner when it was not lawful to do so would result in a professional sanction. A medical practitioner who performs an unauthorised abortion would be deemed to have engaged in professional misconduct rendering that person liable to sanction under the provisions of the Health Professions Registration Act 2005.16 To prove that an abortion was unlawful it would be necessary to establish that the medical practitioner did not hold an honest belief on reasonable grounds that the abortion was necessary because of the risk of harm to the woman.

MB.9 A pregnant woman who has an unlawful abortion would not be liable to any legal sanction.

Commentary

MB.10 This model constitutes a partial legislative affirmation and restatement of the existing judge-made law and reflects current clinical practice. The two-staged approach to regulation means that a woman is the final decision maker for early abortion. In the later stages of pregnancy medical opinion about the risk of harm to the woman determines whether abortion is lawful.

MB.11 This model is broadly similar to British abortion laws.17 It occupies a middle ground when considered in the context of the Australian jurisdictions that have recently amended their abortion laws.18

MB.12 The policies upon which this model is based may be described as follows:

  • Different laws should govern early and late abortions.
  • During the early stages of pregnancy, abortion should be regulated in the same way as any other medical procedure.
  • During the early stages of pregnancy a woman retains the right to determine what medical procedures she will undergo and what relationships she will enter.
  • During the later stages of a pregnancy abortion is an exception to a woman’s general right to determine what medical procedures she will undergo and what relationships she will enter.

– the exception exists because there are other matters which must be taken into consideration when the medical procedure is abortion during the later stages of a woman’s pregnancy, such as the potential life of the fetus and the role of the state in safeguarding that potential life

– the exception does not operate when there is a risk of harm to a woman in continuing with the pregnancy.

  • A medical determination is the best means of deciding whether an abortion is necessary because of risk of harm to a woman.
  • The positioning of the dividing line between the two stages of a pregnancy involves a difficult exercise in judgment because of the range of factors that must be taken into consideration.
  • The placement of the dividing line at the end of the 24th week of a pregnancy reflects current clinical practice and the experience of other jurisdictions.
  • A medical practitioner who performs an abortion when not authorised by law should be liable to professional sanction.

Legislation required to implement Model B

The following legislative recommendations accompany this model:

  • repeal sections 65 and 66 of the Crimes Act
  • include a provision in the Crimes Act which provides that any common law offences relating to abortion cannot be revived and are abolished19
  • include a provision in the Health Act which provides that a medical practitioner20 is authorised to perform an abortion upon a woman when her pregnancy has exceeded its 24th week, when the woman consents to the abortion, and the medical practitioner is satisfied that the abortion is necessary because of the risk of harm to the woman if the pregnancy is not terminated.21
  • risk of harm to the woman may be defined as set out in options 1, 2, or 3 in Model A.
  • include a provision in the Health Act which provides that a medical practitioner who performs an abortion when not authorised to do so engages in professional misconduct for the purposes of the Health Professions Registration Act
  • refer to the legislative recommendations in connection with section 10 of the Crimes Act in Chapter 7 and in relation to associated legal issues in Chapter 8.

MODEL C

A woman’s decision: abortion governed by the same body of legal rules which regulate other medical procedures

General description

MC.1 Under this model abortion would be governed by the same legal rules which regulate all other medical procedures. An abortion performed by a medical practitioner would be lawful at any stage of a pregnancy if the woman gives her consent and if the medical practitioner considered it ethically appropriate to perform that procedure.

MC.2 Abortion, like any other medical procedure, would be a private decision for a woman in consultation with her doctor. The consent of a woman would provide the legal authority for an abortion when it was performed, or supervised by, a medical practitioner.

MC.3 Medical practitioners would make their own individual decisions about whether they considered it ethically appropriate to provide abortions in particular cases. This model does not involve abortion on demand because a woman must engage the services of a medical practitioner who is under a general legal obligation to provide services which are clinically appropriate.

Circumstances in which an abortion would be lawful

MC.4 An abortion would be lawful if a woman consents to the surgical or medical procedure which is used by a medical practitioner to terminate her pregnancy.

Consequences of performing an abortion that is not lawful

MC.5 It would be a criminal offence for an unqualified person to perform an abortion in any circumstances.

MC.6 A woman who has an unlawful abortion would not be liable to any legal sanction.22

Commentary

MC.7 Under Model C final decision-making authority rests with a pregnant woman. A woman’s right to elect to terminate her pregnancy is constrained only by the State’s role in ensuring that a qualified person performs this and any other surgical or medical procedure.

MC.8 This model is probably reflective of some current clinical practice.

MC.9 This model is the same as the law in the ACT and in Canada.

MC.10 The policies upon which this model is based may be described as follows:

  • A woman retains the right to determine what medical procedures she will undergo and what relationships she will enter throughout pregnancy.
  • Abortion should be regulated in the same way as any other medical procedure.

Legislation required to implement Model C

MC.11 The following legislative recommendations accompany this model:

  • repeal sections 65 and 66 of the Crimes Act
  • include a provision in the Crimes Act which provides that any common law offences relating to abortion cannot be revived and are abolished
  • refer to the legislative recommendations in connection with section 10 of the Crimes Act in Chapter 7 and in relation to associated legal issues in Chapter 8.

Footnotes

Main menu

Back to top