In June, a seismic event took place in the American judicial system: the US Supreme Court overturned Roe v. Wade, and with that, abortion rights became a thing of the past in the United States. The news triggered nationwide outrage, with people taking to the streets holding signs such as “Protect Roe v. Wade”, “We Have the Right to Choose”, “Women’s Lives Are Lives”, and “Abortion Rights Are Health Rights”, protesting the Supreme Court’s decision.

What does this US decision mean?

Roe v. Wade is a landmark case in US jurisprudence. In short, through this case, the United States recognised that the Constitution protects women’s freedom to choose abortion.

So what does overturning Roe v. Wade mean? It does not directly mean that all women in the United States have completely lost the right to abortion; rather, it means that the US Constitution no longer protects the “right to abortion”. As a federal country, the individual states of the US have the authority to set their own abortion laws. According to reports, roughly half of US states intend, following the overturning of this case, to tighten abortion policy through trigger laws or new legislation banning or restricting women’s abortion rights in those states.

Could this happen in Australia?

The impact of this event extends beyond the United States. Some members of the Australian public have also joined the protests in solidarity with the US. Demonstrations have broken out in multiple cities, including Sydney, Melbourne, Hobart, Adelaide, and Canberra. Among the protest signs were slogans such as “Get Your Laws Off Our Bodies” and “Our Bodies, Our Choice — Back Off!”

Some protesters argued that abortion is a woman’s right, and questioned why anyone would want to strip women of control over their own bodies. More women expressed concern that the US case could set a bad precedent globally and lead other countries to follow suit. Many women said they are genuinely worried that one day Australia may also prevent women from having abortions.

Predictably, condemnation of this ruling being overturned extends well beyond Australia. A spokesperson for the UN Secretary-General, for example, stated that sexual and reproductive health rights are a fundamental right that every woman must have. Blindly restricting abortion will not change women’s desire to terminate pregnancies; instead, it will force them to seek other means of having the procedure, thereby placing them in far more dangerous situations.

So could this happen in Australia? First of all, the Australian Constitution makes no mention of abortion-related rights. In Australia, abortion rights are determined by the laws and policies of each state and territory. In fact, although some anti-abortion Australian politicians would like to see abortion completely banned in Australia, there is currently no indication that Australia has any plans to follow suit. Many believe that the overturning of Roe v. Wade will have very little impact on Australia. A number of political figures, including Australia’s newly-elected Prime Minister and the Minister for Women, have urged Australians to view the US ruling with caution. Australian Prime Minister Albanese has publicly stated that while people are entitled to their own views on abortion, they have no right to impose those views on women making decisions about their own bodies.

What restrictions on abortion apply in Australia?

In fact, in recent years, most states and territories in Australia have decriminalised abortion under the criminal law. This means that abortion is no longer governed by criminal law and is no longer an offence that can attract criminal liability. At present, Western Australia is the only state where abortion may still trigger criminal charges. It is worth noting that from 7 July 2022, abortion will also be formally decriminalised in South Australia. However, women’s abortion rights in Australia are still not absolute — how many weeks into a pregnancy a woman may have an abortion, and the conditions that must be met, vary by state.

• NSW (New South Wales)

– Generally, a doctor may terminate a pregnancy for a woman within 22 weeks, but must obtain informed consent, except in cases of genuine emergency.

– For pregnancies beyond 22 weeks, termination must be approved by two suitably qualified medical practitioners who consider that the woman has sufficient grounds to terminate the pregnancy.

• VIC (Victoria)

– Generally, women within 24 weeks of pregnancy may choose to terminate the pregnancy.

– Beyond 24 weeks, termination must be approved by two suitably qualified medical practitioners who consider the termination to be reasonable.

• QLD (Queensland)

– Generally, termination may be chosen within 22 weeks of pregnancy.

– Beyond 22 weeks, termination must be approved by two suitably qualified medical practitioners.

• ACT (Australian Capital Territory)

– Generally, termination may be chosen within 16 weeks of pregnancy.

– Beyond 16 weeks, abortion is only permitted in special circumstances.

• SA (South Australia)

– Generally, termination may be chosen within 22 weeks and 6 days of pregnancy.

– Beyond 22 weeks and 6 days, the procedure requires approval by two suitably qualified medical practitioners who consider it necessary.

• TAS (Tasmania)

– Generally, termination may be chosen within 16 weeks of pregnancy.

– Beyond 16 weeks, termination must be approved by two suitably qualified medical practitioners.

• NT (Northern Territory)

– Generally, termination may be chosen within 24 weeks of pregnancy.

– Beyond 24 weeks, approval by two suitably qualified specialist medical practitioners is required.

• WA (Western Australia)

– Generally, termination may be chosen within 20 weeks of pregnancy.

– Beyond 20 weeks, the matter must be considered by an ethics panel of six doctors, with the agreement of at least two of them required.

Final thoughts

The overturning of Roe v. Wade has caused such a stir because it is not only a matter of law, but also of women’s rights and their future. In Australia, the circumstances in which a woman may obtain an abortion are determined by the laws and policies of each state and territory. What impact the overturning of Roe v. Wade will have on abortion rights in Australia remains to be seen, but many scholars consider that Australian law still has room for reform to further safeguard women’s legitimate interests.