MLC Ben Hood said on Monday that he would introduce legislation into the Upper House this week to amend the changes to South Australia’s abortion laws which passed parliament on a conscience vote in 2021 under the former Marshall Liberal Government.

The changes removed a provision that made it unlawful to terminate a pregnancy after 28 weeks and instead set out specific requirements for abortions performed after 22 weeks and six days.

Under the current regime, two medical practitioners must agree that the late-term abortion is required to save the life of the mother, or that the continuation of the pregnancy would involve significant risk of injury to the physical or mental health of the mother, or that there is a significant risk of serious foetal anomalies associated with the pregnancy.

Hood’s legislation, which is not Liberal Party policy, would mean that someone who is pregnant for more than 27 weeks and six days would be induced instead of receiving an abortion.

The mother could then choose whether to keep the baby or put it up for adoption.

“The only method for abortion in the third trimester is for the mother to deliver the baby and that mother will either deliver the baby stillborn after foeticide or will deliver the baby alive,” Hood told ABC Radio Adelaide this morning.

“My amendments are simply saying that we know that a baby at 28 weeks has a 96 per cent chance of survival. At the due date of 41 or 42 weeks, that percentage is 98 per cent.

“I’m saying with these amendments let’s balance that choice of the mother with the right of the child and deliver that baby alive, and then the mother can choose to put that baby up for adoption and then that child can have a right to life.”

At a joint party room meeting on Monday night, the Liberal Party agreed that Hood’s bill would go a conscience vote.

Before the meeting, Opposition leader Vincent Tarzia said that “changing the laws around late term termination is not Liberal Party policy”.

Hood also said today that he did not consult Tarzia about the Bill.

“As a private members’ bill, it is my right to bring this bill to the joint party and to bring it to the parliament,” he said, adding that this “has nothing to do with politics”.

In 2023, there were 47 pregnancies terminated after 22 weeks and six days, according to the South Australian Abortion Reporting Committee, accounting for 0.96 per cent of all pregnancies terminated in South Australia last year.

Liberal frontbencher and senior moderate Michelle Lensink, one of the architects of the 2021 abortion reforms, argued that Hood’s legislation “tries to correct scenarios that don’t exist”.

“With something like 20 years of data, we’re only aware that there was ever one (abortion) performed at 27 weeks, none later than that,” Lensink told ABC Radio.

“If there’s for some reason, the… baby’s delivered early, there is already in the law a duty of care to make sure that they are cared for.

“In those touch and go situations where the mothers and the medical team are desperately trying to keep the pregnancy prolonged so that the child is more viable over time, there is now going to be this law that they may fear they’re breaking because do they deliver now, do they deliver later.”

Asked if she feared the law would increase harm to the mother and the foetus, Lensink said: “Absolutely, that’s the way I read it.

“I think this is some thought bubble but the provisions that are in this particular bill have just not been thought through.”

Lensink later told InDaily that she believed that women with potentially dangerous pregnancy conditions like preeclampsia – who are brought into hospital to be monitored prior to reaching 27 weeks and six days – would be impacted by the change. 

“They’re now going to be all having to consider that once the pregnancy reaches 27 weeks and six days that they will be breaking the law unless they follow this process,” she said.

“Which may lead to some women deciding to terminate before that 27 weeks and six days.”

But Hood rejected Lensink’s criticisms of his Bill and said it would “safeguard against unintended consequences”.

“This isn’t a thought bubble,” he said.

“This has been a Bill in consultation with a great deal of senior legal medical experts, obstetricians, neonatology experts. This is something that I think that is right to do.

“What I believe this bill is doing is a safeguard against unintended consequences and I’m looking forward to the debate with the people in the Legislative Council.”

The reopening of the abortion debate puts back on the agenda an issue which bitterly divided the Liberal Party in 2020 and 2021.

The Marshall Government presided over significant reforms to abortion and voluntary assisted dying laws that failed under the previous 16 years of Labor government, but the changes also prompted a backlash from the conservative wing of the party.

Lensink and then Attorney-General Vickie Chapman, the other key Liberal Party backed of abortion reform, were at the time involved in a public spat with right-wing federal Liberal senator Alex Antic over the proposed reforms.

Former Boothby MP and conservative Nicolle Flint was also involved in a similar war of words with Lensink which played out over social media.

Hood’s bill is all but certain to fail in the Lower House but the numbers in the Upper House are much tighter.

In 2020, the previously elected Upper House voted 12 votes to nine in favour of the abortion reforms.

Two backers of those reforms – former Health Minister Stephen Wade and crossbencher John Darley – are no longer in parliament, with Wade replaced by Hood last year.

Earlier this year, the Upper House had a similar conscience vote on a conservative bill to criminalise the procurement of prostitution.

The bill, introduced by Liberal MLC Nicola Centofanti, was defeated 10 votes to nine. The Labor Party’s Clare Scriven and Tung Ngo voted in favour of the bill along with five Liberal Party MLCs, Independent MLC Frank Pangallo, and One Nation MLC Sarah Game.

The remaining seven Upper House Labor MPs voted against it along with Greens MLCs Tammy Franks and Robert Simms and SA-Best MLC Connie Bonaros.