Self-proclaimed “fiery” pro-lifer NSW finance minister Damien Tudehop claims the abortion decriminalisation bill “in its current form is not in step with the views of the community”, when in truth, it’s he and other conservative MPs opposed to the bill, who are the ones out of step.
Indeed, it’s due to these reactionary members of the NSW Liberals that premier Gladys Berejiklian caved in and delayed the vote on the bill in the upper house, otherwise the procedure would more than likely be decriminalised in this state right now, just as it is everywhere else in the country.
The Reproductive Health Care Reform Bill 2019 passed through the lower house on 8 August, with 59 votes in favour and 31 opposed. The legislation was introduced by NSW independent MP Alex Greenwich, and co-sponsored by 16 other members from all political persuasions.
And besides giving time for anti-reproductive rights advocates, like Barnaby Joyce, to join the opposing choir, it seems that this hold up is merely a token gesture to appease those conservative forces that continue to rally against a woman’s right to choose what happens to her own body.
A woman’s choice
“The delays to the Reproductive Health Care Reform Bill are nothing more than an attempt to placate the anti-choice MPs in the Liberal party,” explained NSW Greens MP Jenny Leong, a key co-sponsor of the bill.
“Those who oppose the bill do so because they oppose a woman’s right to make her own reproductive health choices,” she made clear, “no amount of extra time is going to change that.”
As the NSW Greens spokesperson on women’s rights put it, the decriminalisation bill seeks to “remove genuine barriers” that are preventing people from accessing the procedure. And she added that it’s unacceptable that women and health professionals “need to consider the criminal risks”.
“At its heart, this bill is about recognising a person’s right to bodily autonomy,” Ms Leong told Sydney Criminal Lawyers. “There is absolutely no justification for the involvement of the criminal justice system in our reproductive health decisions.”
Currently, section 82 the Crimes Act 1900 (NSW) makes it an offence for a woman to undergo an unlawful abortion, while section 83 stipulates that anyone assisting a woman in doing so has also committed a crime. Both offences carry a maximum penalty of up to 10 years imprisonment.
And section 84 of the Crimes Act provides that supplying the means to undertake an abortion can see an individual sent away for up to 5 years prison time.
However, certain abortions have been lawful under common law since 1971, if a doctor finds for “any economic, social or medical ground or reason” that going ahead with a pregnancy would endanger a woman’s physical or mental health.
Known as the Levine ruling, this decision was made during the 1971 NSW District Court case Regina versus Ward. But, despite this ruling, women can still be prosecuted under NSW criminal law, with up to a decade in prison as a possible punishment.
According to NSW Bureau of Crime Statistics and Research, since 1994, twelve people have been prosecuted in this state over abortion offences. And of these, four individuals were subsequently found guilty and noncustodial orders were imposed.
An unfortunate delay
“Prolonging this debate might placate conservative MPs for now, but the reality is those MPs will never vote for the bill in any form,” said Australian Lawyers for Human Rights’ Kate Marchesi. “We can see from the numbers of the first vote in the NSW upper house that the bill is likely to succeed.”
Co-chair of the ALHR Women and Girls Rights Subcommittee, Ms Marchesi explained that based on the experience of other jurisdictions delaying the bill won’t allow for “informed and genuine debate’, but rather it gives those who oppose it the opportunity to try and convince others to vote against it.
“In Queensland and Victoria, we saw the debate over abortion law reform dragged out over a
number of years,” the lawyer continued. This meant that doctors had “to practice under legal uncertainty”, and it allowed for the spread “ugly campaign tactics” by anti-abortionists.
Ms Marchesi outlined that NSW and South Australia are the only two Australian jurisdictions that still regulate abortion under criminal law. Although, SA was the first state in the country to “reform its laws on abortion in 1970”. And since then, it can be lawfully accessed in that state.
“It’s fair to say there are a number of reasons why abortion has not been decriminalised in NSW,” Ms Marchesi said, “including that many people don’t realise abortion is still a crime.”
The legislation set out
The NSW abortion reform legislation makes it lawful for a medical practitioner to perform an abortion within 22 weeks of conception. After this time, a specialist can still perform the procedure, with the approval of another medical specialist.
The bill also makes it a requirement for medical practitioners who conscientiously object to carrying out a pregnancy termination to refer the person seeking the procedure to another medical practitioner who doesn’t object.
The legislation also revokes the sections of the Crimes Act that criminalise abortions. And it inserts a revised section 82 into the Act, which makes it a crime for an unqualified person to terminate a pregnancy. This new offence is punishable by up to 7 years behind bars.
Reform is well overdue
“The laws relating to abortion in NSW are not fit for purpose,” Ms Marchesi emphasised. “They no longer reflect community standards or the reality of modern health care in 2019.” And she added that the benefits of decriminalisation will be many.
Following the repeal of the criminal laws, the lawyer set out, doctors will be able to do their jobs under “a clear legal framework”, and those that previously avoided the procedure due to the “legal uncertainty” will no longer have to.
Ms Marchesi further explained that while lawmakers at the turn of last century made “unlawful” terminations a crime, they “never defined what that term meant”. And this left it up to case law to “fill in some of the gaps” as to when an abortion was lawful.
“That was over 40 years ago and until now, parliament hasn’t made any real progress in clarifying this,” Ms Marchesi concluded. “It’s time for the NSW parliament to finally make this right.”
Paul Gregoire is a Sydney-based journalist and writer. He has a focus on human rights issues, encroachments on civil liberties, drug law reform, gender diversity and First Nations rights. Prior to Sydney Criminal Lawyers®, he wrote for VICE and was the news editor at Sydney’s City Hub.