Contrary to popular belief, abortion is not available “on demand” in NSW.
The Crimes Act 1900 (NSW) contains three criminal offences relating to abortion.
Section 83 creates an offence for unlawfully administering a drug or using any instrument or other means to procure a woman’s miscarriage,
Section 82 creates an offence for a woman to unlawfully procure her own abortion (eg by taking abortion drugs), while section 84 creates an offence for unlawfully procuring drugs for the purposes of an abortion.
The scope of these offences reflect the limits of the law’s protection for the life of the foetus in the face of a decision by the pregnant woman to terminate her pregnancy.
However, the question of whether the doctor’s actions – or those of the woman or another person – are “lawful” has been left to the common law. The leading decision is a District Court case from 1971 called R v Wald ( 3 DCR (NSW) 25).
According to Wald, lawfulness turns on whether the jury (or judge) accepts that the person who performed the abortion believed on reasonable grounds that their actions were: “necessary to preserve the women…from serious danger to their life, or physical or mental health, which the continuance of the pregnancy would entail” (going beyond the usual dangers of childbirth), and secondly that the actions taken were not out of proportion to that danger.
Courts have elaborated on a number of issues that emerge from the principles set out above.
For example, in CES v Superclinics (Australia) Pty Ltd  NSWSC 103, Justice Kirby wrote that the economic and social stresses that pregnancy and, in due course, motherhood might impose on the woman were relevant to the doctor’s conscientious belief on reasonable grounds that the abortion was necessary to preserve the physical or mental health of the mother (thereby negativing an offence under section 83 of the Crimes Act).
Removing abortion from the criminal law
Greens MP Mehreen Faruqi MLC has introduced the Abortion law Reform (Miscellaneous Acts Amendment) Bill 2016 into the NSW Parliament.
The Bill seeks to do four main things.
Firstly, the Bill would remove abortion from the Crimes Act 1900 (NSW) by repealing the three criminal offences in the Act that relate to abortion.
Secondly (to the extent that it exists), the Bill would abolish any remaining rule of common law creating an offence for procuring a woman’s abortion.
Abortion and the duty to refer
Thirdly, having banished abortion from the criminal law, the Bill would impose new requirements on doctors that would take effect through the Health Practitioner Regulation National Law – the statutory framework through which the medical profession enforces norms of professional conduct against medical practitioners.
Section 139C of the National Law, in its application to NSW, sets out the matters which may constitute “unsatisfactory professional conduct”.
Under the Greens Bill, a doctor who was approached by a patient seeking advice about abortion would be guilty of “unsatisfactory professional conduct” if they:
- failed to tell the person about any conscientious objections to abortion that they had;
- failed to refer the person in a timely manner to another health practitioner who the doctor knew did not have a conscientious objection to abortion, or to the local Woman’s Health NSW Centre, in order to ensure the woman had “full information about all of the person’s options in relation to the pregnancy”.
The intention of this amendment is appropriate. It ensures that women are not kept in the dark about their options in ending a pregnancy because the doctor morally disapproves of their choice. Victoria’s Abortion Law Reform Act 2008 contains a similar provision (s. 8).
Nevertheless, under the Greens Bill, a doctor would apparently be in breach of their professional obligations if they failed to refer the woman to someone who had no objections to abortion, irrespective of the woman’s circumstances and the reasons why she wanted the abortion.
So, to take an extreme example, a pro-life doctor would (obviously) be in breach of their professional obligations if they refused to provide a referral for a pregnant teenager who had been raped.
But so would a pro-choice doctor who nevertheless felt it was wrong to help a woman achieve an abortion because she wanted a boy, but had ended up pregnant with a girl.
This last scenario recalls the experience of Dr Mark Hobart, a Melbourne GP who was investigated for potentially breaching section 8 of the Victorian Act for failing to cooperate in an abortion.
“They wanted the abortion because they wanted a boy and they found out it was a girl” Dr Hobart told Ben Fordham on radio 2GB.
The woman was 18 and a half weeks pregnant.
As it turned out, Dr Hobart held a conscientious objection to all or perhaps most abortions.
In his words: “I guess I believe that life begins at conception, that human life is sacred….I know that other people [don’t hold views as strong as that] but that’s what I believe, I find it a big problem if someone asks me to refer them for an abortion”.
When I documented an “underground” in illicit euthanasia among health professionals working in HIV medicine in the late 1990s, in the book Angels of Death, one of the common ways that doctors, nurses, psychologists and others facilitated euthanasia was by referring people who requested it to others whom they knew would provide it.
Those who facilitated euthanasia in this way might have felt it was the right thing to do. But they didn’t pretend they weren’t morally involved.
Impediments to access to abortion services are real (see eg Heather Rowe et al, “Considering Abortion: A 12 Month Audit of Records of Women Contacting a Pregnancy Advisory Service” (2009) 190 Medical Journal of Australia 69-72).
But requiring a doctor who has explained that they feel morally conflicted in facilitating the abortion in the circumstances of the case – to help the patient achieve it elsewhere – smacks of triumphalism.
The decision a woman reaches about her pregnancy should be respected.
But doctors should not be treated as moral slaves to their patients, especially in the case of this procedure, the moral character of which is notoriously contested.
There ought to be room for a more sensitive balance between the freedom that a woman ought to have to make decisions about her pregnancy, and the sincerely felt moral beliefs of the clinician.
It’s possible that euthanasia may be legalised in an Australian State within the next few years, if not sooner. Will it also be “unsatisfactory professional conduct” for a doctor who has moral objections to euthanasia to fail to refer a patient to a colleague who is willing to provide a hot-shot?
Safe access zones for abortion
The fourth thing the Greens abortion law reform Bill would do is to implement a 150 metre “safe access zone” around abortion clinics.
A similar exclusion zone exists under the Victorian legislation.
Safe access zones were introduced to protect women who wish to access abortion services, and the staff of abortion clinics, from harassment, obstruction and humiliation by protestors. In some cases, these protests have been carried on for decades.
Abortion law reform in Queensland
Two Bills to amend Queensland’s abortion laws have also been introduced into the Queensland Parliament.
Like NSW, Queensland has criminal prohibitions for “unlawfully” performing an abortion, unlawfully supplying drugs or instruments to procure an abortion, or in the case of a woman herself, unlawfully administering any “poison or noxious thing” to procure a miscarriage (sections 224-226).
However, the common law’s articulation of the circumstances in which an abortion is lawful is considered to be narrower in Queensland than in NSW.
In 2010, a young woman and her boyfriend were prosecuted under section 225 for procuring and self-administering RU486. It took less than an hour for a jury to find them not guilty.
Two years earlier, in a remarkable judgment, a Justice of the Queensland Supreme Court found that parents lacked legal capacity to authorise an abortion for a 12 year old girl who was 18 weeks pregnant. Rather, court approval was required.
The first Bill, the Abortion Law Reform (Woman’s Right to Choose) Amendment Bill 2016 (Qld) would effectively take abortion out of the criminal law by repealing sections 224-226 of the Queensland Criminal Code.
The Health (Abortion Law Reform) Amendment Bill 2016 then sets out a new regulatory regime for abortion within the Health Act.
The Bill states that abortion procedures must only be performed by qualified medical practitioners, assisted by qualified nurses who may administer drugs at the written request of a doctor.
No limitations are imposed on the performance of abortions before 24 weeks: these procedures would effectively be available upon demand from a willing medical practitioner, as in Victoria.
Abortions after 24 weeks could only proceed when a doctor had consulted with at least 1 other doctor and both believed that continuing the pregnancy would involve “greater risk of injury to the physical or mental health of the woman than if the pregnancy were terminated”.
Nor is there any duty imposed on a medical practitioner to perform or assist in an abortion (except in an emergency, in order to save the woman’s life or to prevent serious physical injury).
The Bill provides protection from harassment, intimidation and obstruction for persons entering or leaving an abortion facility which the Minister has declared to be a protected area.
The Bill also prohibits protests, “by any means”, between the hours of 7.00am-6.00pm or for such other period as the Minister declares. The protected area must extend outwards at least 50m from the abortion facility.
In summary: I would be surprised if either the NSW or Queensland Bills are successful. Already, a Parliamentary Committee of the Queensland Parliament has recommended that the Abortion Law Reform (Woman’s Right to Choose) Amendment Bill 2016 should not be passed.
Rather than seeking to reverse all the perceived problems of current law in a single legislative episode, abortion law reformers may find it more effective to adopt an incremental approach.
In jurisdictions where the public mood remains more conservative, it might be wiser for law reformers to set out to achieve less.
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