Abortion Law Reform

 

Not all people in New South Wales are able to access reproductive healthcare in a way that is safe and fair. Criminalisation of abortion does not reflect modern medical practice or social expectations regarding reproductive health and autonomy. All patients should be able to access abortions in the same way that patients access other medical and surgical procedures – safe from the threat of criminal prosecution and harassment.

This means that:

  1. Obtaining and providing abortions should be decriminalised so that all people can access health care without fear of prosecution – repeal of sections 82-84 of the Crimes Act 1900 (NSW); and
  2. Foetal personhood laws should be opposed due to the impact such laws would have on abortion services.

Background

Decriminalisation of Abortion

It is estimated that 100,000 Australians undergo an abortion each year yet very few people in NSW are aware that abortion is a criminal offence.

Despite modern standards of medical practice and expectations of reproductive health and autonomy, abortion remains a criminal offence in NSW under Division 12 of the Crimes Act 1900 (NSW) (‘the Act’). Sections 82 and 83 of the Act provide that a person who unlawfully procures an abortion is liable to be imprisoned for ten years. Section 84 provides that a person who “unlawfully supplies of procures any drug or noxious thing, or any instrument or thing whatsoever” for the purpose of procuring an abortion is liable to be imprisoned for five years.

In R v Wald (1971), District Court Judge Levine held that an abortion is legal where there is 'any economic, social or medical ground or reason' upon which a doctor could base an honest and reasonable belief that an abortion was required to avoid a 'serious danger to the pregnant woman’s life or to her physical or mental health'. Since then, ‘serious danger’ has been extended by the NSW Court of Appeal to include relevant factors after the birth of the child, particularly social and economic factors that affect the patient’s physical and psychological health.

Despite these medical and legal standards, patients and medical practitioners continue to face the risk of prosecution due to outdated laws. This risk limits the availability of abortion services. By failing to keep pace with developments in medical science and practice, the law surrounding abortions has become a barrier between patients and appropriate reproductive services.

In 2017, a 28 year old woman in Sydney was prosecuted after she bought termination medication on the internet and administered it to herself with the “intent to procure her miscarriage”. Her pregnancy was 28 weeks in duration. The woman had five children at the time and was urged by her boyfriend to terminate the pregnancy.

The judge said "the ongoing debate regarding pro- and anti-abortion is a polarising issue within the community" but it was his job to apply the law rather than "express views either way".*(1) The woman was convicted and given a three year good behaviour bond.(2)

(1) See https://www.smh.com.au/national/nsw/sydney-woman-prosecuted-for-taking-abortion-drug-20170814-gxvoqd.html.
(2) DPP (NSW) v Lasulado [2017] NSWLC 11

 

 

Opposition to foetal parenthood laws

Foetal personhood laws should be opposed due to the impact such laws would have on abortion services. Laws such as ‘Zoe’s Law’ which was introduced by Fred Nile’s Christian Democratic Party in NSW Parliament in 2013 provide for foetal personhood. Foetal personhood laws could lead to pregnant people being charged with grievous bodily harm to the foetus for having an abortion.

Such laws have the potential to severely restrict access to abortion. Giving a foetus personhood would likely affect access to abortion in NSW, particularly late-term abortions.

Safe access zones

Access to reproductive healthcare is not merely limited through the criminal characterisation of abortion, but also through harassment of patients attempting to access reproductive healthcare services.

In 2018, the NSW Parliament passed the Public Health Amendment (Safe Access to Reproductive Health Clinics) Bill 2018 that created 150 metre safe access zones around abortion clinics (see Part 6A – Access to certain reproductive health clinics of the Public Health Act 2010 (NSW) for the relevant provisions).Community Legal Centres NSW was part of the campaign to support this legislative reform.

There is one reproductive health clinic that provides abortions in Albury-Wodonga which serves a catchment area of over 300,000 people. Picketing of the clinic by the Helpers of God’s Precious Infants for over a decade and non-consensual filming of patients has led to people (particularly teenagers) being too afraid to attend the clinic and in some cases has caused people to self-harm or attempt suicide as they feel trapped by the situation - unable to have the procedure done within Albury, and lacking the resources to travel elsewhere.

Conduct of the anti-abortion protesters has included:

  • kneeling down to pray as garbage trucks drive past to collect the bins, implying that the clinic has been throwing foetuses in the garbage;
  • handing plastic foetus-shaped dolls to people entering and leaving the clinic; and
  • printing graphic images onto placards and placing them around the entrance to the clinic.

This type of behaviour by anti-abortion protesters has created large amounts of conflict within the community in a number of different areas. At the clinic there are regular confrontations between protesters, with members of the community actively going down to ‘protect’ people entering and leaving. On a political level there is also a high level of conflict between the two sides, with Albury based charity ‘Rights to Privacy, Albury’ being created to fight against the filming of individuals around the clinic.

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