Right: Catholic Archbishop of Sydney Anthony Fisher has condemned proposed legislation to decriminalise abortion in NSW, saying it would allow the termination of a pregnancy ''on demand for any reason one desires''.
 Found a word you're not familiar with? Double-click that word to bring up a dictionary reference to it. The dictionary page includes an audio sound file with which to actually hear the word said. |
Arguments in favour of abortion being removed from the New South Wales Crimes Act
1. Ready access to abortion and its decriminalisation are favoured by a majority of voters
Supporters of the Reproductive Health Care Reform Bill argue that its provisions to decriminalise abortion in New South Wales are in accord with the views of a large majority of New South Wales voters and with the views of most Australians.
No public opinion poll in Australia in 50 years has found a popular majority opposed to broad access to abortion. In fact, no opinion poll has found more than 5-10% of voters opposed to abortion in all or almost all circumstances.
Several surveys have been conducted on public opinion towards abortion over the last four decades. In 2008, the Victorian Law Reform Commission conducted substantial research into Australian attitudes toward abortion. The Commission concluded most Australians supported a woman's right to choose whether to have an abortion.
A variety of socio-demographic characteristics were associated with positive (and negative) views of abortion. For example, there was less support for abortion among persons with religious beliefs. Nonetheless, even among persons with religious beliefs, supporters remained in the majority.
Australian Election Studies (AES) have revealed similar results. The proportion of Australians who believe 'women should be able to obtain an abortion easily when they want one' has increased from 46.2 percent in 1979 to 63.0 percent in 2016, while the proportion of respondents who believe abortion should be banned has remained consistently around 5.0 percent.
The AES figures for New South Wales are broadly similar to the national responses. 65.6 percent of New South Wales respondents in 2016 believe that women should be able to obtain an abortion readily, compared with 35.9 percent in 1987. The percentage of persons in 2016 who believed abortion should be banned was1.7 percent, compared with 6.0% in 1987.
In September 2015, the New South Wales Greens commissioned Lonergan Research to survey New South Wales residents on their views on abortion. This survey represents the latest publicly available survey of the opinions of New South Wales citizens. The survey was conducted online using a permission-based panel, with data weighted to the latest population estimates sourced from the Australian Bureau of Statistics. A total of 1,015 New South Wales respondents aged 18 years or older were surveyed; 595 respondents were drawn from Sydney, with the remaining 420 drawn from regional New South Wales.
63% of respondents classified abortion as a women's health issue. This classification was more prevalent across regional and rural New South Wales (68 percent), compared to Sydney (60 percent). 46 percent of respondents from Sydney also saw it as a moral issue, compared with 39 percent of residents from regional/rural New South Wales.
76 percent of respondents were not aware that abortion is an offence under the New South Wales Crimes Act (1900). 73 percent of respondents believe that abortion should be decriminalised and regulated within the health service. Support for decriminalising abortion
was marginally higher across regional and rural New South Wales (77 percent) compared to Sydney (70 percent), as well as in older groups of respondents.
Support for the decriminalization of abortion was highest (86 percent) amongst respondents who had voted for The Greens in the 2015 New South Wales State Election, followed by those who voted for Labor (77 percent), the LNP (75 percent) and another party or Independent (69 percent).
It has been suggested that one possible reason why it has taken New South Wales so long to reform its abortion laws was the fear of a backlash among voters. Even feminist campaigners had concerns that attempts to reform the law might fail and backfire on reformers, perhaps resulting in more restricted access.
This view that the decriminalization of abortion is rejected by voters has been played up by a number of political and social commentators, particularly in the conservative media. In a comment published in The Herald Sun on July 30, 2019, Miranda Devine asked, 'What is the point of electing a Liberal government if all it does is implement a Labor-Greens agenda? This is the question all conservative voters in NSW should be asking today as the Berejiklian government plans to ram through parliament one of the most radical abortion bills on the planet.' Critics of Devine's comments argue that she is promoting her own views on abortion as all available data suggests that a comfortable majority of LNP voters favour abortion law reform.Further, supporters of the Reproductive Health Care Reform Bill argue that those politicians who are opposing the Bill are ignoring the wishes of a clear majority of their electorates. Though all major parties are allowing a conscience vote on the issue, supporters of the Bill maintain that those elected to represent voters do not have the right to put their personal beliefs ahead of the wishes of those who voted for them.
In a comment published in The Conversation on July 31, 2019, senior lecturer Helen Pringle, at the University of New South Wales in the faculties of Arts and Social Sciences stated, 'The chief obstacle to reform has little to do with voters' electoral behaviour, let alone their general attitudes on abortion. Rather, it's been the lack of will among MPs that's been the problem.'
2. The New South Wales Crimes Act 1900 contradicts judicial rulings and current medical practice and stigmatises and threatens patients and their doctors
Supporters of the Reproductive Health Care Reform Bill argue that there are serious discrepancies between the Crimes Act in New South Wales as it relates to abortion and the availability of terminations within the state. Critics maintain that these discrepancies between the criminal law and current medical practice create fear, uncertainty and inequalities in the health care that is provided to women seeking terminations. They also create apprehensions among doctors.
Unlike Victoria and the Australian Capital Territory, surgical abortion remains illegal to women and doctors in New South Wales if it is procured 'unlawfully'. Sections 82, 83 and 84 of the New South Wales Crimes Act 1900, all relate to abortion as a criminal offence. Section 82 clearly states that 'a pregnant woman who unlawfully administers an abortion through an unlawful drug or instrument' faces a maximum penalty of 10 years imprisonment. Section 83 makes it an offence for anyone else to procure the miscarriage of a woman and Section 84 prohibits anyone from knowingly supplying drugs or instruments to procure a miscarriage under these terms, 'anyone who unlawfully supplies the pregnant woman with such drugs or instruments to help procure an abortion' faces a maximum penalty of 5 years imprisonment.' tps://www.sydneyfeminists.org/reproductive-rights-information-page
Elizabeth Henderson, a final year law student at the University of Sydney, has explained the uncertainty inherent in the current New South Wales criminal law. Henderson states, 'The key word in Section 82 is 'unlawfully'. The use of this word implies that under some circumstances an abortion may be lawful. Subsequent judicial rulings, notably the MacNaghten and Menhennit rulings, have determined that risk to the pregnant woman's physical or psychological health could make an abortion lawful, while the 1971 New South Wales Levine ruling extended relevant factors impacting on the woman, making an abortion legal on economic and social grounds.
Henderson explains that the broader interpretation of lawful abortion as a result of this series of judicial rulings is at odds with the narrower and less clear definitions of abortion as a crime contained in the New South Wales Crimes Act 1900. Henderson states, 'The most obvious problem with the current situation is the visible difference between the true legal position and the actual practice of abortion. This disparity means that there is a great deal of uncertainty surrounding access to abortion. Abortion availability largely hinges on whether the state is prepared to enforce the law and on what kind of abortion services exist in a particular area.'
This discrepancy between law and practice means that while abortion is generally available to women in New South Wales without fear of prosecution, there are some situations where the lingering effect of the Crimes Act can restrict access and may result in doctors being charged with a crime.
Ashlee Gore, a lecturer in Criminology and Policing at Western Sydney University, has stated, 'While some practitioners may attempt to support women's autonomy through the existing policies and legal framework, not all women have access to such supportive providers.
Women in rural areas for example may have to rely on local GP's as their first point of contact, especially if they are unaware of the availability of specialist family planning and reproductive health services out of area. One study reported that the conscientious objections of local conservative GP's made the referral process especially stressful for some women. One New South Wales woman reported seeing five GPs before she was finally provided a referral.'
In addition to the current Crimes Act making it difficult for some women to access abortion, it also places a strain on doctors. Susan Wnukowska-Mtonga and Hannah Lawson, in a comment published by Lawyers Weekly on August 5, 2019, stated, 'While it would be easy to assume that this law, like many outdated crimes remaining in the code, is rarely relied on for prosecution, a doctor was charged and convicted with manslaughter for administering an abortion after failing to assess whether the pregnancy would pose a danger to the woman's health as recently as 2005.'
The Australian Medical Association (AMA) supports abortion being removed from the New South Wales Crimes Act 1900. The AMA has noted that New South Wales is the last state in Australia to decriminalise abortion, placing women and doctors under a 'different and stigmatised legal arrangement to other states.' The AMA has expressed support for the Reproductive Health Care Reform Bill, stating the bill 'reflects the common law entitlements that currently exist, while removing the stigma and legal uncertainty associated with abortion being included in the Crimes Act.'
3. Reforming the law to treat fertility control as a health issue respects women's reproductive autonomy
Those who support the Reproductive Health Care Reform Bill argue that it is necessary to prevent those legal anomalies that can still occur within New South Wales in which a woman's right to determine whether she will proceed with a pregnancy is denied.
Supporters of abortion law reform in New South Wales note that Australia has an obligation to respect, protect, and fulfil women's reproductive rights under various international human rights treaties, including the Convention on the Elimination of all forms of Discrimination Against Women, which Australia signed and ratified in 1983.
Supporters of women's reproductive autonomy further observe that reproductive rights are inextricably linked to a woman's ability to exercise a number of other fundamental rights including the rights to self-determination, equality, freedom from discrimination, and freedom from torture and cruel, inhuman and degrading treatment.
The ability for women to access and exercise their sexual and reproductive rights has long been recognised as an integral part of the right to health, so much so that an alliance of 60 peak health, legal, and community organisations including doctors and nurses across the state have formed part of the latest push to decriminalise abortion in New South Wales. Domestic Violence New South Wales, the Royal Australian and New Zealand College of Obstetricians and Gynaecologists and Family Planning New South Wales are among organisations that have signed up to be a part of the pro-choice alliance.
Independent MP Alex Greenwich who introduced the Reproductive Health Care Reform Bill into the lower house of the New South Wales parliament has stated, 'The vast majority of people from all walks of life support a woman's right to choose and this comes from a moral position based on social justice, fairness and the fundamental human right to bodily autonomy. Ensuring women have access to safe and legal terminations is vital to protecting their health, welfare and control over their bodies and their lives. It is about women's rights to appropriate health care and it is our role as community representatives in this place to protect those rights. The need to end a pregnancy is a health matter, not a criminal matter and the Reproductive Health Care Reform Bill recognises this and removes abortions from the Criminal Code and regulates them as a medical procedure.'
In an opinion piece published on August 5, 2019, in Lawyers Weekly, it was noted that in 2017, a Sydney woman was prosecuted for self-administering the abortion drug RU486.
The woman was prosecuted under Section 82 of the New South Wales Crimes Act 1900 which states, 'Whosoever, being a woman with child, unlawfully administers to herself any drug or noxious thing; or unlawfully uses any instrument to procure her miscarriage, shall be liable to penal servitude for ten years.' The situation regarding an abortifacient such as RU486 which is intended to allow for the early termination of a pregnancy and prevent the need for any form of surgical intervention is complicated in New South Wales.
Lawyers Weekly has noted, 'With the forced closure of the Tabbot Foundation, the only national postal service legally delivering the medical abortion drug RU486 to women in need, we may see more prosecutions, particularly of women in regional New South Wales who often find it much harder to access contraception and basic reproductive services.'
Thus it is argued that women who are doing no more than trying to regulate their fertility in a timely manner could find themselves charged with a crime.4. Late-term abortions should remain available and will not be increased by the proposed legislation
Supporters of decriminalising abortion in New South Wales argue that the proposed legislation would probably make late-term abortions in that state less rather than more likely.
In an editorial published in The Sydney Morning Herald on August 2, 2019, Lisa Davies stated, 'Evidence from other states suggests the bill is likely to reduce the number of late-term abortions even further. Currently, the legal ambiguities and the lingering stigma of the Crimes Act discourage some doctors from offering abortions, making it harder for women, especially from disadvantaged and rural backgrounds, to find a cheap service in their neighbourhood. If more doctors are in the market, women will be able to get cheaper advice locally in a timely fashion and later-term abortions will fall.'
Davies further argues, 'The bill...will in fact make late-term abortions less likely and increase rather than decrease scrutiny of them...the bill says that for late-term pregnancies, those over 22 weeks, two doctors must be consulted before the procedure. That is more stringent than the current legal situation where only one doctor's approval is required at any stage of the pregnancy for an abortion to be lawful. The bill's threshold for requiring a second opinion after 22 weeks is actually stricter than Queensland where it is 24.'
Supporters of New South Wales abortion law reform argue that their opponents are using late-term abortions as a diversion. It is claimed that these critics have taken a very rare occurrence and used it as the basis for opposing a necessary reform.
Lisa Davies has stated, 'The focus on late-term abortions is...skewed because they are already extremely rare. Less than 1 per cent of abortions are believed to occur after 20 weeks.'
Davies has also noted that the proposed legislation would do nothing to alter the provisions already in place which contribute to the rarity of late-term abortions. Davies explains, 'Late-term abortions are...already subject to very strict controls since they almost always involve drastic cases such as women who are the victims of violence, mental health issues or drug addiction or where the fetus has been diagnosed with serious deformities. When doctors encounter these cases, they are handled in hospitals by teams of health professionals. The claim by conservatives that these decisions are not documented or justified is already fanciful and it will be even more so once the bill is passed and two doctors are involved.'
Supporters of the proposed New South Wales reforms note that the Royal Australian College of Obstetricians and Gynaecologists (RANZCOG) and the Australian Medical Association (New South Wales) both support the 22-week gestation period. RANZCOG has stated that 'a late abortion is only ever performed when there is a compelling clinical need' and that the bill will not change 'current clinical practice'.
Supporters of the New South Wales bill note late abortions are performed under pressing circumstances and should not be a determining factor in any debate surrounding abortion access. About half of all late-term abortions occur because of fetal abnormality. The nature and severity of some serious and fatal fetal conditions cannot be confirmed until 20-22 weeks (after a routine ultrasound at 18-20 weeks). Those concerned with the pregnant woman's psychological wellbeing argue that it is critical that she have time to understand her options and to discuss them with medical professionals, support services, and her family. There is evidence that gestation limits in abortion law cause women in these distressing situations to feel rushed in their decision-making.
The other half of abortions performed late-term are for reasons including: women who do not menstruate regularly (because they are young, perimenopausal or on contraceptives, for example) miss early symptoms of pregnancy; abusive partners prevent women from accessing abortion services at an earlier date; relationships break down; socioeconomic circumstances change.
It has been noted that the law needs to allow late-term abortions to ensure that women in disadvantaged circumstances are not faced with unwanted pregnancies. According to experts in reproductive health, 'Gestational limits discriminate against the most vulnerable of women and women in the most difficult of clinical circumstances. Often disadvantaged women may not access diagnosis of lethal or serious anomalies until later gestations.'
Erica Millar, a lecturer in the social, cultural and socio-legal aspects of reproduction at La Trobe University, has written, 'There's no evidence gestational limits result in fewer second and third trimester abortions. But there is evidence that such cut-offs harm women, especially those who are already disadvantaged. They also prevent medical professionals from providing pregnant people with the best possible care.'
5. Sex-selection should not be part of the debate surrounding New South Wales abortion law reform
It has been claimed that exploiting popular opposition to the sex selection of children is a tactic being used to try to undermine proposed New South Wales abortion law reform.
Dr Danielle McMullen, vice president of the Australian Medical Association (New South Wales) has claimed, 'Our state Parliament [in New South Wales] has been paralysed into inaction because people who want to obstruct access to abortion or prevent it entirely have linked it in a very insincere and flawed way to the very emotionally charged issue of gender selection.'
Those who object to the issue of sex selection becoming part of the debate argue firstly that there is no evidence that abortion as a sex selection method is being used in any significant way in either New South Wales or Australia and secondly, to the extent to which it might occur, it would be extremely difficult for medical practitioners to know that this was a patient's motivation and doctor's attempts to determine this would harm the service supplied to all women seeking abortion.
It has been noted that there is no Australian demographical information to support the claim that abortion is being used as a sex selection tool. An upper house inquiry into the abortion bill held on August 15 heard evidence from a number of medical and women's groups that the practice was not an issue in New South Wales.
Ann Brassil, the chief executive of Family Planning New South Wales, noted there was 'no evidence that gender selection occurs'. Brassil added, 'For us to introduce legislation in relation to gender selection on the basis of no evidence would be irresponsible because we would be in a situation where we're making it up and we could create enormous harm.'
Secondly, any law against using abortion for sex selection would be unenforceable; while, the legal burden this would impose on doctors would prevent them giving the best care to their patients.
Dr McMullen has stated that any law specifically prohibiting the use of abortion for sex selection (as proposed by one potential amendment to the New South Wales abortion Bill) would place doctors at risk of criminal prosecution. Such an amendment could make any doctor providing abortion services after nine weeks 'party to a crime' as technology allows the sex of a baby to be identified from about this time.
Such prosecution concerns for doctors would reduce the quality of care they could give their patients. McMullen explained, 'If a patient wants an abortion on the basis of gender selection, they aren't telling us. This means that doctors would have to view every abortion requested after nine weeks as potentially suspect, saddling doctors with the prospect of being party to a crime. This would lead to delays in delivery of care at best and no procedure at worst.'
Danielle McMullen and others have suggested that concerns regarding gender selection are being exploited by opponents to abortion as a means of undermining women's access to this service. Dr McMullen has stated, 'The fact that gender selection is such an emotive issue is precisely why this bill's opponents continue to make this bad-faith argument. The people who are doing this...see this as an opportunity to put a stop to something they don't like and place controls back on women under the cover of doing something people broadly support...'