In any state or territory, legal provisions prohibiting “illegal abortion” may apply to an abortion performed at any stage of pregnancy. The legal test for knowing when an abortion is not illegal – and therefore permitted – is different in each state and territory of Australia. This is excessive regulation in which laws seek to regulate practices that no longer exist (i.e., “court abortions”). It unnecessarily highlights abortion for a special arrangement and prevents its full integration into health law (which already ensures that only qualified people perform medical procedures). In Victoria, since 2008, abortions have been performed on demand until the age of 24. Week of pregnancy allowed, with abortions after this period, until the birth of the child, so two doctors must agree that it is appropriate, depending on the current and future physical, psychological and social circumstances of the woman.   Under South Australian law, an abortion can only be performed in late pregnancy if it is performed in good faith solely to preserve the life of the pregnant woman. The cut-off point is given as the stage of pregnancy at which the fetus has become “a child born alive”, a point that the legislation sets at first glance for the 28th week of pregnancy, but which, in some cases, can result from the 22nd to 23rd week of pregnancy. (140) Abortion is legal in Queensland and is available on request as a health service until the 22nd week of pregnancy. After that, the doctor concerned must consult another doctor, who also believes that in all circumstances the termination should be carried out.
The plaintiff alleged that Dr. Backwell treated her negligently. First, because it was responsible for the applicant`s incorrect insemination and, second, because of its subsequent conduct towards the applicant. It argued that that subsequent conduct had shown `contradictory, arrogant and unjustified contempt for the applicant` and had been motivated by profit and the preservation of its own reputation and character to the detriment of the applicant`s well-being. (47) The applicant claims damages for the physical and psychiatric damage he suffered as a result of Dr Backwell`s alleged negligence. She also sought exemplary damages – damages awarded to punish a defendant and act as a deterrent – with respect to Dr. Backwell`s response to the false insemination and subsequent pregnancy. At least since the 1980s, opinion polls have shown that a majority of Australians support abortion rights and that support for abortion is increasing. While anti-abortion violence is rare in Australia, anti-abortion activists have used tactics such as “verbal abuse, threats, and obstruction of access” outside abortion clinics.
 In response, all jurisdictions have enacted laws prohibiting protesters from harassing visitors and staff within a certain perimeter of abortion clinics, starting with Tasmania in 2013 and finally Western Australia in 2021. New laws enacted in New South Wales and South Australia include provisions that condemn “sex-selective” abortions and ban them in South Africa. Across Australia, medical abortions are available up to the week of pregnancy (with SA restrictions to be lifted on July 7). A medical abortion uses mifepristone to terminate the pregnancy and misoprostol to expel it. These must be prescribed by a doctor and are taken orally in pill form. Finally, it is important to note that Australian courts no longer automatically follow interpretations of criminal law (or any other type of law) given by courts in England. This is the case even in uncoded jurisdictions, where criminal laws are more directly derived and similar to English law and common law offences. Relevant decisions in English will certainly be convincing. However, there are significant differences between the Australian and English courts` approaches to key aspects of criminal law. (8) Had the High Court upheld this case, it would have been obliged to examine for the first time the meaning of illegal under the New South Wales criminal provisions prohibiting illegal abortion In the course of such a review, the High Court would likely have responded to the arguments of the Australian Catholic Health Care Association and the Australian Catholic Bishops` Conference: than R.
v. Wald and R. v. Davidson were badly decided and should be overturned. Part of this argument was the assertion that the abortion necessity exception did not apply. The High Court`s response to this argument would have had important legal implications for New South Wales, the jurisdiction in which the Superclinics case arose. In addition, it allegedly confirmed or undermined the legal validity of the relevant judicial statements in the Victoria and Queensland cases and provided guidance on the appropriate interpretation of the relevant laws in the Australian Capital Territory, Western Australia and Tasmania. Meanwhile, abortion decriminalisation laws in Western Australia, South Australia and New South Wales require doctors to provide information about counselling services (in New South Wales, this only becomes mandatory after the 22nd week of pregnancy). Nearly 60% of Australians believe a woman should still be able to quit smoking if it`s her choice, according to a 2019 survey by the University of Sydney`s Center for U.S. Studies, which found a number of attitudes more liberal than those of Americans.
Religion appeared to be a factor, the study`s authors said at the time; Census results released last month also showed that Australia is rapidly secularizing, with nearly 40 percent of people saying they have no religion, up from 22 percent a decade earlier. Therefore, according to Levine DCJ, an abortion would be legal if there was “an economic, social or medical reason or reason” on which a physician could base an honest and reasonable assumption that an abortion was necessary to avoid a “serious threat to the pregnant woman`s life or to her physical or mental health.” The defendant should not have believed that the woman`s health was in “grave danger” at the time of the consultation, but only that her health “could reasonably be seriously threatened at some point during the pregnancy if she was not terminated”. (68) A woman`s sexual partner does not need to be informed of an abortion and the Australian courts will not issue injunctions to prevent the proceedings, even if the plaintiff is the alleged father of the fetus.  No waiting period for abortion is imposed. A minor is not required to inform a parent of a proposed abortion, and parental consent is not required, except in Western Australia. While abortions are regulated by states and territories, the procedure is partially funded by the federal government`s public health system, Medicare or private insurers. In the case of a “child who may be born alive” (usually after 28 weeks of pregnancy), abortion may be the subject of a separate crime of child destruction in some states and territories. Fourth, Kirby A-CJ pointed out that if a doctor were prosecuted for illegal abortion, it would be very difficult to convince a jury that the doctor did not have an honest and reasonable belief that there was a serious threat to a woman`s mental health.
He attributed this difficulty in part to the essentially subjective nature of the “honest and reasonable” belief, which is manifestly absent before the illegality of an abortion can be established. (91) It pointed out that the case-law had not drawn up a list of criteria on the basis of which the honesty and appropriateness of the doctor`s convictions could be assessed. Kirby A-CJ added that it would not be desirable and even impossible to present such a list given the “wide variety of peculiarities,” including social and economic factors, that must be taken into account in each case. (92) It also noted that doctors do not agree on when pregnancy poses a sufficiently serious threat to a woman`s mental health to justify her termination of pregnancy. He then concluded that any jury that judged whether a doctor possessed the required “honest and reasonable” faith should be influenced by the fact that some Australian doctors would be much easier than others to conclude that a pregnant woman`s mental health was seriously threatened by her pregnancy: four years ago, abortion was illegal in Queensland, except in cases that seriously threaten the physical or mental health of the mother. In 2010, the state sued a young couple – they were acquitted – after the woman aborted on MS-2-Step drugs.