The third time was a civil case, which was finally brought before the Victoria Court of Appeal in 1994. That case, Backwell v. AAA, (42) involved a successful negligence action brought by a woman for treatment received in 1983 under a donor insemination program. The programme was conducted at an infertility clinic in Melbourne with which the accused, Dr June Backwell, was associated. The applicant had enrolled in the program because she had suffered eight early miscarriages in 20 months due to extreme tissue intolerance with her husband. She also suffered from Rhes disease, which meant she had to be fertilized with sperm from an Rh-negative donor to avoid serious complications in a subsequent pregnancy. As part of the donor insemination program, the applicant was accidentally inseminated with donor semen destined for another patient. This semen came from a donor who was Rhesus positive and of a different racial origin than the applicant`s husband. Traditional Christian beliefs played a major role in influencing Australia`s initial anti-abortion policy.

The change in attitude towards abortion and reproductive rights has been correlated with fewer Australians perceiving their country as a “Christian nation”, which has reduced the influence of right-wing Christian politicians. [97] However, the stigma surrounding abortion persists and can severely affect women`s sense of identity and mental health, as well as the practice of an abortion. Women may report that they have had a miscarriage instead of telling people that they have had an abortion to avoid negative reactions. [98] Under South Australian law, an abortion can only be performed late in pregnancy if it is performed in good faith only to preserve the life of the pregnant woman. The limit is set as the stage of pregnancy at which the fetus became “a born alive”, a point that the legislation sets prima facie at 28 weeks of pregnancy, but which, in some cases, can occur from the 22nd to the 23rd week of pregnancy. (140) Williams J. gave three reasons for dismissing the application. The first reason was that the court`s inherent parens patriae jurisdiction, which allowed it to intervene to protect vulnerable subjects in the crown, including infants, did not extend to the fetus. Indeed, a fetus has no legal personality if it is not born alive. (117) The second reason was that it was not appropriate for the court not to intervene on behalf of either the plaintiff or the foetus in order to protect and safeguard future legal rights that the plaintiff might acquire to apply for custody of a child after birth.

(118) The final reason given by Williams J. for refusing an injunction was that, even if the proposed abortion had been unlawful under the Queensland Criminal Code, the applicant did not have the authority to initiate legal proceedings to prevent a possible violation of criminal law which was the responsibility of public officials rather than individuals. (119) In each State and Territory, the law provides that the crime of illegal abortion is punishable by long custodial sentences. In Victoria, the penalty is five years in prison for the woman and the abortionist, and one year in prison for providing or procuring anything to support. In New South Wales and the Australian Capital Territory, the penalty is ten years` imprisonment for the woman and the abortionist and five years for childbirth or procuring. In South Australia, the penalty is life imprisonment for the woman and the abortionist and three years for childbirth or procuring. In the Northern Territory, the penalty is seven years` imprisonment for all parties. In Tasmania, the penalty for all involved is 21 years in prison and/or a fine determined by the court. In Queensland (and until recently in Western Australia), the penalty is seven years in prison for the woman, 14 years for the abortionist and three years for childbirth or pimping. Legislative changes in Western Australia replaced these penalties with a $50,000 fine if the abortion is a qualified doctor and a five-year jail sentence if the abortion does not. A woman who has an illegal abortion is no longer subject to any legal sanction in Western Australia.

In Victoria, since 2008, abortions have been permitted on demand up to the 24th week of pregnancy, and abortions after this period until the birth of the child, with two doctors agreeing that this is appropriate for the woman`s current and future physical, psychological and social circumstances. [85] [86] Menhennitt J. expressly invoked the general legal necessity exception(37) and indicated to the jury that acting with intent to cause a miscarriage was lawful only if the defendant honestly believed, on reasonable grounds, that the abortion was both “necessary” and “proportionate”. The onus was on the Crown to prove illegality by proving necessity or proportionality. (38) In this context, the term `necessary` meant that the termination of pregnancy was necessary to protect the pregnant woman from a serious danger to her life or to her physical or mental health beyond the normal risks of pregnancy and childbirth that would result from the continuation of the pregnancy. “Proportionate” meant that, in the circumstances, the abortion was not disproportionate to the danger to be avoided. (39) The jury applied Menhennitt J.`s interpretation of the law and acquitted Dr. Davidson of the charges against him.

For the most part, abortion is not the subject of polarizing national debates Down Under, as is often the case in American politics. But the U.S. Supreme Court`s decision, Roe v. Wade, shocked many Australians and prompted thousands to participate in rallies in support of abortion rights. McGuire DCJ also seemed unwilling to accept the expansion of the Rv. Davidson test in the subsequent New South Wales case of R v. Wald. In its judgment, it referred to the latter case and also discussed the liberalising effect of taking into account social and economic factors in the assessment of the risk to the health of pregnant women, but then expressly approved only the legislative declaration in R. v. Davidson. (109) This appears to be due to a perceived risk that the adoption of the interpretation of the term “illegal” in R.

v. Wald can pave the way for the legal recognition of social and economic factors as such as grounds for abortion. (110) In August 2016, Mehreen Faruqi published a Miscellaneous Laws (Amendment) Bill 2016, “repealing sections 82 to 84 of the Abortion Offences Act; Provide a secure 150-metre access zone around abortion clinics and service providers to ensure patients` right to medical confidentiality; and require physicians to disclose their conscientious objection at the beginning of the consultation and to refer patients to another physician who has no conscientious objection or to the local Centre for Women`s Health in New South Wales.” [61] The bill was passed on July 11. It was introduced in the House of Lords in August 2016. [62] It was rejected at second reading on 11 May 2017 by 25 votes to 14. [63] The amendments come into force on July 7 and provide that South Australians will have legal access to medical abortion until the 22nd week and six days of pregnancy. After that, an additional medical consultation is required. Once the new laws go into effect on July 7, patients will no longer need to get permission from two doctors to perform an abortion and, like most other pregnant people across the country, will be able to access drugs prescribed for abortions via telemedicine. The second time, in 1986, the abortion practice of a Melbourne doctor, Dr. Ian McGoldrick, was examined. He was charged under Victorian regulations criminalizing illegal abortion. It was claimed that Dr.

McGoldrick performed abortions without honestly and reasonably believing that the abortions were necessary to preserve the life or health of the women involved. The charges were dismissed in June 1987 and therefore did not lead to a court opinion on the Menhennitt verdict. (41) This result can also be understood as an acknowledgement both of the improbability of a conviction of this defendant under the Menhennitt judgment and of the improbability that a higher court will offer a different interpretation of the law. An abortion is justified under section 334 of the Health Act 1911 (WA) if one of the following four grounds is met. The first reason essentially allows abortion on demand. It allows abortion if the pregnant woman has given her “informed consent.” (163) This is the “consent freely given by the woman” after the fulfilment of an obligation to advise. This consultation requirement requires that an independent physician (not the physician who performs the abortion or any other physician who assists in performing the abortion) did three things: Justice Menhennitt in R. v.