This post previously stated New South Wales was the last remaining jurisdiction in Australia to include termination of pregnancy in its criminal code. This error has been corrected – the dubious honour belongs to South Australia, which fully decriminalised abortion in 2021.
New South Wales is the second-last remaining jurisdiction in Australia to include termination of pregnancy in its criminal code. This could change as soon as next week, giving more Australians more control over their reproductive health, and bringing legislation more closely in line with community standards and actual practice.
View from my extremely poor vantage point outside NSW Parliament House, at a rally to support decriminalising abortion on 6th August 2019.
What's the problem?
"Unlawful" abortion is a crime in NSW, and what makes an abortion unlawful is unclear. Termination of pregnancy can be legally sanctioned by a doctor thanks to case law, but this situation invites uncertainty and stigma. Abortion laws are inconsistent around the country, but are moving towards treating abortion as a medical matter rather than a criminal matter.
Recent history of abortion law in NSW
A 2017 bill to decriminalise abortion in NSW failed; notably, it provided no framework for legal abortion. While full decriminalisation with no restrictions provides the greatest freedom in theory, it can be associated with unexpected restrictions in practice. For example, abortion law is most permissive in the Australian Capital Territory, but Canberra Hospital requires a hospital ethics board to approve abortions performed after the 20th week of pregnancy.
Momentum for reform is strong: in 2018, Queensland became the latest state to remove abortion from its Criminal Code and NSW gained 150-metre safe access zones around clinics.
Australia is on the verge of decriminalising abortion nation-wide
A new bill to decriminalise abortion and provide a similar legal framework to Queensland and Victoria is currently being considered by the NSW parliament. The bill would remove abortion from the criminal code, and legalise abortion by a medical professional up to the 22nd week of pregnancy. Abortion after 22 weeks would need the approval of two doctors (one of them an obstetrician).
An unprecedented 15 MPs (including Health Minister Brad Hazzard) co-sponsored the bill. They've been accused of rushing it through parliament, when in fact support for the current bill has been steadily building since the defeat of the 2017 bill, and it was the bill's opponents who proposed last-minute amendments to maintain tighter restrictions on abortion.
The bill has been passed by the Legislative Assembly with some, but not all, of those amendments. The Legislative Council will review and vote on the bill in the coming weeks.
Broad support, surprising detractors
Former Minister for Women Tanya Davies voted against the bill. This is perhaps unsurprising, given her opposition to safe access zones). So too did Dr Joe McGirr, apparently because the bill requires a doctor who has a conscientious objection to abortion to refer a patient seeking an abortion to another doctor. In Dr McGirr's words, "It is not clear why that has to take place if there is no health issue at stake".
Doctor, it is a health issue whenever someone is pregnant and wishes not to be.
Decriminalisation of abortion is in sight; we are nearing a hard-won victory after a long battle. The Twitter hashtag #ArrestUs highlights the experiences of dozens of individuals who have sought and had abortions in decades past.
What Would the Science Party Do?
Given Premier Gladys Berejiklian's previous statements that the NSW government supports the "status quo" in relation to abortion law, I appreciate her support for this bill, at odds with conservative voices in the Liberal and National Parties.
The bill, including the ability for doctors to exercise conscientious objection, is well-aligned with the Science Party's policy position and we hope for it to pass the NSW upper house to become law.
The continuing challenge is to ensure practical access to abortion for all Australians who choose one.
Andrea Leong is the leader of the Science Party and an executive member of the NSW state branch.
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