NSW May Finally Repeal the Crime of Abortion

by Sonia Hickey & Ugur Nedim

A bill before parliament will overturn laws that were set down in 1900 which make abortion a criminal offence.

New South Wales is the only jurisdiction in Australia that has not yet repealed criminal laws against abortion. But that may change with a law before NSW Parliament this week that intends to overturn those laws.

The new Reproductive Health Care Reform Bill being introduced to Parliament this week has widespread backing and while there is expected to be a “robust debate” about the proposed reforms, the MPs behind it are confident that it will pass, ensuring women have safe access to legal abortions and are not stigmatised by the fact abortion remains a crime in the law books.

Abortion is a crime

Many are surprised to learn that abortion is a crime in New South Wales.

Under section 82 of the Crimes Act 1900 (NSW), it is a criminal offence for a pregnant woman to unlawfully administer a drug or poison, or unlawfully use an instrument, to procure a miscarriage.

Section 83 makes it an offence for other people to intentionally cause a woman to suffer a miscarriage using unlawfully administered drugs, poison or instruments.

The maximum penalty for each of these offences is 10 years imprisonment.

And section 84 prescribes a maximum penalty of 5 years imprisonment for anyone who supplies or procures a drug, poison or instrument with the knowledge that they may be used unlawfully to cause a miscarriage.

However, the 1971 case of R v Wald ruled that abortions do not contravene these laws in certain circumstances.

That case involved a criminal trial of five people – most of whom were health care professionals. The five defendants were involved in performing an abortion at the Heatherbrae clinic in Bondi.

All were charged under section 83 of the Crimes Act.

The trial judge found that an abortion is lawful if there is an ‘economic, social or medical ground or reason’ upon which the doctor could honestly and reasonably believe that an abortion could avoid a ‘serious danger to the pregnant woman’s life or her physical or mental health.’

All five defendants were ultimately found ‘not guilty’ on that basis – and the ruling opened the doors to women seeking to terminate a pregnancy for reasons such as financial disadvantage or instability, or fears of social stigma and judgment – factors which may negatively affect a woman’s mental wellbeing.

The judgment also affirmed that abortions do not need to be performed in hospitals – paving the way for women’s health clinics around the state.

NSW woman convicted under abortion laws

Just two years ago, a NSW woman was convicted of attempting to terminate her own pregnancy.

The case came before magistrate Geoffrey Hiatt in Blacktown Local Court, who heard that the woman’s boyfriend urged her to undergo an abortion, but she was turned away from several clinics due to her gestation period being more than 20 weeks. In desperation, she procured abortion pills over the internet.

Her baby survived, and her criminal defence lawyers argued – albeit erroneously – that she should therefore not guilty. However, the law is clear on the subject and the magistrate found the woman had a “clear intent to procure a miscarriage”, adding it was his job to apply section 82 of the Crimes Act.

Existing laws make it an offence to “unlawfully administer” drugs or use instruments “with intent in any such case to procure her miscarriage”.

It was a rare case, but under current laws, only a medical abortion can be performed up to nine weeks from the woman’s last period, and surgical abortion can be carried out within the first 20 weeks of pregnancy.

The law also specifically states that a doctor can only terminate a pregnancy if “the operation was necessary to preserve the woman involved from serious danger to her life or physical or mental health which the continuance of pregnancy could entail”. This is based on a 1971 court ruling.

The proposed new laws

The proposed new bill, however, will allow access to a pregnancy termination in the first 22 weeks of a pregnancy. The NSW laws are based on Queensland laws introduced last year, and will also incude a “conscientious objection” clause for doctors, who would be obliged to refer patients to other medical practitioners.

This means that Doctors are not expected or required to provide or directly participate in treatments to which they conscientiously object; however, they cannot allow their objection to impede or deny access to legally available treatments. A similar provision was made in Victoria’s assisted dying laws when they were introduced in 2017.

NSW lags behind the other states

This is not the first time proposed changes to abortion laws have been presented before Parliament.

In 2016, NSW Greens Upper House MP Mehreen Faruqi introduced the Abortion Law Reform (Miscellaneous Acts Amendment) Bill 2016. Sadly at the time, both of the major parties were reluctant to consider change. Former Premier Mike Baird was expressly anti-abortion, while the Opposition leader in 2016, Luke Foley, also expressed no desire to change the laws if elected.

The views of these politicians flew in the face of public sentiment – with a survey conducted at the time revealing that 24% of people were unaware abortion was a crime at all, while 73% supported decriminalisation.

In 2018, The NSW government has passed laws to impose 150-metre ‘safe access zones’ around abortion clinics, making it an offence to harass anyone entering or exiting an abortion clinic, but it has long stalled on the issue of actually changing the antiquated laws in the crimes act that make abortion itself, a crime.

Abortion is a polarising issue, but one which urgently needs addressing in order to provide certainty for those who want access to safe pregnancy terminations, those who provide them, and also to drag New South Wales out of the dark ages and bring it into line with the rest of the nation.

Authors

Sonia Hickey

Sonia Hickey is a freelance writer, magazine journalist and owner of 'Woman with Words'. She has a strong interest in social justice, and is a member of the Sydney Criminal Lawyers® content team.

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with over 20 years of experience in criminal defence. He is the Principal of Sydney Criminal Lawyers®.

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