Abortion law in Australia is a matter for the states and territories; however, some funding is allocated to abortion at a federal level through Medicare and the Pharmaceutical Benefits Scheme, and drugs used in medication abortion are regulated nationally through the Therapeutic Goods Administration. This can cause confusion about which level of government is responsible for regulating abortion and about the legality or accessibility of abortion in different states and territories.
Despite the fact that abortion remains in the Criminal Code or Crimes Act in some capacity in some states, Medicare rebates, or item numbers, are available and widely used for the procedure, although these have remained at the same level for many years and have not kept pace with the increasing costs of providing abortion. This leaves women with large out-of-pocket 'gap' costs in order to access a procedure, but without these rebates the barriers to access would be even larger than they currently are.
There are four item numbers which may be used to denote abortion procedures:
35643: 'Evacuation of the contents of the gravid uterus by curettage or suction curettage'; and
16530: Management of pregnancy loss, from 14 weeks to 15 weeks and 6 days gestation;
16531: Management of pregnancy loss, from 16 weeks to 22 weeks and 6 days gestation;
16522: Is classified as a complex birth item, the management of fetal loss from 23 weeks.
Medication abortion is also regulated at the federal level through the Therapeutic Goods Administration (the body responsible for approving medications for use in Australia), and has been listed on the Pharmaceutical Benefits Scheme since 2013. More information about medication abortion and federal regulation is available here.
Children by Choice has always supported the provision of Medicare rebates for abortion procedures, and we believe that access to abortion and contraception should be supported by subsidies in the form of Medicare and Pharmaceutical Benefits Scheme listings. At present, only some forms of abortion procedures and contraceptive methods are covered by these subsidies; for example, emergency contraception and some long acting contraceptive methods are not included on the PBS.
Defending Medicare funding for abortion services
Since the introduction of universal healthcare in Australia in 1975, there have been numerous attempts to limit or remove rebates available for pregnancy termination procedures. As abortion law and regulation is a matter for state governments, attacks on abortion access at a federal level have historically been more likely to come via threats to Medicare funding for the procedure. The first came in 1979, as Helen Pringle writes:
"In March 1979, MP Stephen Lusher moved a motion in the House of Representatives to restrict the payment of medical benefits for termination of pregnancy under Item 6469 by Medibank (as it was then), “unless the termination was performed to protect the life of the mother from a physical pathological condition and that the life could be protected in no other way”. Lusher’s motion was defeated by a margin of 65 to 47."
The two most recent examples of threats to Medicare rebates have been in 2008, when a motion to remove the Medicare rebate for second trimester abortion procedures was introduced to the federal senate, and in 2013, when a bill aimed at removing Medicare rebates for sex selective abortion was proposed by Senator John Madigan.
2008: Proposal to remove Medicare rebates for second trimester pregnancy termination procedures
In June 2008 Tasmanian Senator Guy Barnett introduced a motion to Federal Parliament to disallow Medicare Item 16525. This item funds the provision of second trimester abortion procedures in the case of severe fetal abnormality, stillbirth or if the pregnancy is a threat to the woman’s life. This funding is vital to ensure women can access necessary reproductive health services, particularly for financially or geographically disadvantaged women throughout Australia.
In September 2008, after heavy campaigning from both anti- and pro-choice advocates, Senator Barnett withdrew the motion from the Senate and the issue was referred to the Senate Finance and Public Administration Committee for enquiry. Submissions were made by both sides. Pro-choice groups including Children by Choice argued that the disallowment of 16525 could:
- Cause further psychological distress to women and their families who are already experiencing difficult emotional circumstances.
- Force women with a life-threatening illness or who are carrying a dead fetus to continue the pregnancy even if it places their lives in further danger.
- Cause delays in accessing a necessary health procedure and further negatively impact on the pregnant woman’s physical and mental health. Removal of the item number would inequitably impact on women in rural and regional areas with already limited access to medical and health services and financially disadvantaged women.
- Likely shift some of the provision of the procedures covered by the item to the public hospital system and place additional pressures on these services.
See the full Children by Choice submission to this enquiry here [pdf].
"The inquiry has confirmed that taxpayers have paid nearly S1.9million since January 1994 in support of 10,722 procedures under this item. Evidence given to the inquiry suggested that only a small number of these procedures would have been inductions following intrauterine fetal death. The overwhelming majority of these procedures would have been second trimester and late term abortions. I believe the money expended on these abortions could be more appropriately used for pregnancy support services and I urge the government to seriously consider this initiative."
It is our belief that the fact 10,772 of second trimester procedures were performed nationally over a 24 year period is not an indicator of a serious systemic problem as Senator Barnett claimed. While we would greatly value extra government investment in women-centred pregnancy support services, it is our firm position that this should not come at the the expense of vulnerable and distressed women who need second trimester abortion services and who are sometimes already struggling financially to access them.
Senator Barnett did not reintroduce the motion before losing his senate seat at the 2010 Federal election, and the Medicare funding for these necessary procedures remains in place.
2013: Proposal to remove Medicare rebates for sex selective pregnancy termination procedures
In early 2013, Democratic Labor Party senator John Madigan (Victoria) introduced a bill aimed at banning the use of Medicare rebates for termination where the abortion has been carried out based on the sex of the fetus.
Data on abortions carried out in Australia is notoriously hard to come by; there is no national data collection process, and the figures available from Medicare are rendered largely meaningless as they do not distinguish between terminations and treatment following miscarriage. Nowhere is there any evidence, even anecdotally, to suggest sex selective abortion is common practice in Australia, despite Senator Madigan's claims that it is a problem.
In March 2013 the Senate referred Madigan's Health Insurance Amendment (Medicare Funding for Certain Types of Abortion) Bill to the Finance and Public Administration Committee for inquiry. Over 900 submissions were made to the inquiry, and ours was among many by pro-choice groups pointing to the lack of evidence on this topic and the near impossibility of enforcing such legislation. Our other points included:
- Children by Choice does not endorse sex selective abortion on the grounds of social, religious and cultural discrimination against women and girls.
- Children by Choice considers the introduction and intent of this Bill as vexatious and unnecessary as there is little or no evidence that gender-biased sex selective abortion is occurring in Australia nor that Medicare funding is currently being used for this purpose.
- Legislating to ban Medicare funding for sex selective termination of pregnancy would not advance the rights, health and well-being of Australian women and girls and international evidence shows that such action may cause harm to those it seeks to protect.
- Children by Choice believe that the Australian Senate should be more concerned by the current barriers to legal, affordable and timely abortion services that are experienced by financially disadvantaged women in Queensland and other states.
The Committee handed down their report in June 2013 [available to download] but declined to make a recommendation for or against the Bill.
Senator Madigan reintroduced the Bill to parliament and it was debated in the Senate in September 2014, but time for debate ran out and the Bill wasn't put to a vote. Senator Madigan lost his senate seat in the 2016 federal election.