andon creativeJustice Newman found that the abortion, which the plaintiff could not request, had actually taken place, would have violated New South Wales` provisions criminalizing “illegal abortion”. It reached this conclusion on the basis that it had no evidence that the applicant`s life or her physical or mental health was seriously threatened by her pregnancy, as required by the Levine judgment for the legality of an abortion. Physicians who object to abortion are not required to provide information to a client, but must refer the client to another physician who can provide the information. In 1994, Levine was reinterpreted and narrowly applied by a Supreme Court judge in Superclinics. This case involved a woman`s action against a medical clinic for negligence for failing to diagnose her pregnancy at a time when she could have had an abortion. The judge in that case refused to award her damages on the grounds that it would have been a crime for her to have an abortion if she had known she was pregnant at the time of the crime. This result – and the judge`s restrictive reinterpretation of Levine – was overturned on appeal by the majority of the New South Wales Court of Appeal. Kirby P.`s interpretation of the law in these appeal proceedings now constitutes the legal situation in New South Wales. Kirby is slightly more liberal than the original Levine decision. The Kirby decision does not limit permissible abortion to cases where a serious danger to the woman`s health would occur during pregnancy, but also allows for consideration of health risks that may arise after the birth of the child. The Kirby decision also shows that it would be very difficult to establish in court that a physician does not have the necessary honest and reasonable belief that an abortion was justified to avoid a serious threat to a woman`s health. Since 1986, there have been no prosecutions under Queensland`s abortion laws in relation to medically induced abortions.
The only case where these laws have been enforced is the Lippiatt case in 1996, which prosecuted a man who assaulted a pregnant woman, injured the woman and led to stillbirth. In the Northern Territory, an abortion after 24 weeks` gestation requires the consent of two doctors. Surgical and medical abortions are available in the public health system. [64] This is unusual in Australia, where abortion services are often outsourced to private providers. [65] South Australia is the only state that collects and publishes abortion data. In 2002, 5147 medical abortions were performed in South Australia, or 17.2 per 1000 women aged 15 to 44. Nationally, this would mean that approximately 73,300 abortions were performed nationwide. This does not take into account differences between countries. For example, unpublished data from Western Australia estimates a rate of 19.4 abortions per 1,000 women in the same age group, suggesting about 82,700 planned abortions nationally. Data from South Australia also show that the vast majority of abortions performed between 1994 and 2002 occurred before the 14th week of pregnancy. Less than 2% occurred after or after 20 weeks.
[96] The decision to lay the additional charge against the defendant in this case was novel because Australian prosecutions under laws criminalizing abortion when it takes place have so far referred to the practice of an abortion in a medical setting, at the request of the pregnant woman who chose to terminate the pregnancy. They did not refer to the very different situation in which a pregnancy ends as a result of a violent physical assault on a woman during a pregnancy she presumably wants to continue. The High Court has been seized of an application for special leave to appeal the decision of the Supreme Court of Queensland in the case of Attorney-General (ex rel Kerr) v. T and an injunction. The application was heard and dismissed by Justice Gibbs. He reiterated the view of the lower courts that it would be inappropriate for a civil court to issue an injunction in this case to stop a possible violation of criminal law and stated that it was not justifiable for the defendant to be found guilty of violating the Criminal Code if she had had had an abortion and was being prosecuted in this context. (122) It also upheld the conclusion of the lower courts that the law does not consider a foetus to be a person whose existence can be protected by the courts because it has no legal rights until birth and lives apart from its mother. (123) Even if the latter view were wrong, the complainants would always fail: in South Australia and the Northern Territory, laws have been passed giving a legal explanation as to when abortion is not illegal.