Abortion laws in NSW: Beyond Decriminalisation

As the NSW parliament prepares to introduce a bill to decriminalise abortion in that State, Ashlee Gore writes that many believe abortion is already legal and freely available in NSW, and that while decriminalisation will be important for women’s choice and autonomy, there will remain many other medical, social and interpersonal barriers that restrict the exercise of this autonomy after the law has changed.

Image source: abc.net.au

Image source: abc.net.au

This month, the NSW Pro-Choice Alliance, representing more than 60 organisations, launched its campaign to decriminalise abortion in NSW. Abortion is still contained within the criminal code in New South Wales, at sections 82 to 84 of the Crimes Act 1900. In contrast, in all other states around Australia, abortion is regulated as a healthcare procedure. Victoria achieved decriminalisation in 2008, and Queensland in 2018.

This week, the working group of cross party MPs, including the NSW Minister for Health, have announced that a Bill to decriminalise abortion will be introduced to parliament. The Reproductive Health Care Reform Bill 2019 will be very similar to Queensland’s Termination of Pregnancy Act 2018.

Members of the Alliance’s management committee - the Women’s Electoral Lobby, Family Planning NSW, Women’s Health NSW and the Human Rights Law Centre - support the Bill in full. Under the proposed legislation a woman would not commit an offence if she procures a termination within the bill’s framework.

It would also repeal provisions of the Crimes Act relating to abortions and common law offences. The bill would allow for terminations up to 22 weeks, and later – if two doctors believe it should be performed given the medical, physical, social and psychological circumstances.

One thing that has been made clear by the ensuing public commentary is the overwhelming assumption in the public that abortion is already legal and available in NSW.

While abortion is legally available in NSW under some limited circumstances, women are not entitled to abortion on demand. The criminal legislation is rarely used to prosecute women or doctors, it is much more likely to deter or prevent women from accessing affordable and timely abortions that would be legal in other Australian jurisdictions. In addition to the restrictive legal framework, the policies and procedures surrounding lawful abortions in NSW create intersecting barriers that disproportionately effect women from rural, lower socio-economic, and marginalised communities.

What makes an abortion ‘unlawful’ under the current legislation?

According to the  NSW Crimes Act 1900 unlawfully procuring an abortion is an offence punishable by imprisonment for up to ten years, and unlawfully providing “any drug or noxious thing, or any instrument or thing whatsoever” for the purpose of procuring an abortion is punishable by imprisonment for up to five years.

In NSW, an abortion is only lawful if the woman’s doctor believes on reasonable grounds that it is necessary to avoid a serious danger to her life or her physical or mental health, taking into account economic and social factors as well as medical ones, and the risks of the abortion are not out of proportion to the danger to be averted. While cases of unlawful abortions are rare, the case law that does exist highlights that it is the doctors ‘reasonable belief’ in the necessity for the abortion – not the women’s - that is required for the act to be lawful.

Abortion in reality is rarely prosecuted, with only two cases in past 30 years. This included a  57-year old deregistered doctor Suman Sood, who was found guilty under section 84 of the Act (above) after supplying abortion drugs to a patient without the requisite reasonable belief in a serious danger. Supreme Court Justice Carolyn Simpson noted during the sentencing proceedings that if the doctor had asked her patient about her circumstances and the reasons for wanting a termination, she (the doctor) could have formed an honest belief that the patient’s social or emotional circumstances were endangered by continuing the pregnancy, and the act of providing abortion drugs would not have been illegal.

While prosecutions are rare, the criminal legislation presents an important barrier to both service providers and women.  While the legislation allows for abortions under some circumstances, these are limiting and can be interpreted and applied differently by medical practitioners with different levels of investment in women’s autonomy.

For example important research on abortion providers' knowledge and use of abortion law in New South Wales found that practitioners in women specific services specializing in reproductive health interpreted the framework liberally. They prioritized the women’s right to choose and often made it legal by using wide interpretations of emotional distress as evidence of ‘serious danger’ to the woman’s physical or mental wellbeing. While these practitioners believed that under the current laws, social or financial circumstances, or an ‘inability to cope’ with the pregnancy were not enough, they saw the emotional/psychological distress that may result from these factors as sufficient to make the abortion lawful.

Beyond de-criminalisation: The medical model and doctors as conscientious objectors

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 NSW woman reported seeing five GPs before she was finally provided a referral.

Policy on how doctors should deal with their own conscientious objection to an abortion is controversial. Legislation generally recognises that doctors have a right not to provide a treatment or procedure to which they conscientiously object; however, the area of contention largely lies in whether or not a doctor invoking a conscientious objection must refer the patient to another practitioner. In relation to abortion, some States mandate such a referral (such as Victoria), while others do not.

The Federal Australian Medical Association’s (AMA) current policy does not specifically address the issue of referral. Instead, it says that:

A doctor who makes a conscientious objection to providing, or participating, in certain treatments or procedures should make every effort in a timely manner to minimise the disruption in the delivery of health care and ensuing burden on colleagues. If you hold a conscientious objection, you should inform your patient of your objection, preferably in advance or as soon as practicable and inform your patient that they have the right to see another doctor. You must be satisfied the patient has sufficient information to enable them to exercise that right. You need to take whatever steps are necessary to ensure your patient’s access to care is not impeded.

The AMA policy guidelines suggest that ‘refer’ simply means to direct to another source, rather than its meaning in terms of clinical practice (such as a written referral as part of an ongoing working relationship).

However, research has found many physicians did not consider themselves obligated to make referrals for legal but morally controversial medical procedures. The Reproductive Health Care Reform Bill 2019 stipulates that doctors who have a conscientious objection must disclose this to their patient and refer or transfer her to the care of another doctor who has no objection. This is an important stipulation, however, if passed it remains to be seen how this directive would be interpreted and implemented by doctors who continue to see abortion as morally controversial.

Compounding barriers

Currently, abortion in NSW is offered mostly in private clinics in Sydney and some regional areas, with limited public provision. Women who are either refused local help or denied lawful access may travel regionally or interstate to seek an abortion. But incur heavy economic burdens.

The cost of a lawful abortion in NSW is difficult enough for many women to cover. The average cost of a medical abortion is $560 while a surgical abortion is $495 or $300 if the client has Medicare. This can be exacerbated by the related cost of regional or interstate travel, accommodation, and childcare.

The NSW Pro-Choice Alliance argues that laws criminalising abortion are the single largest barrier to abortion access and reproductive choice in NSW. These laws particularly impact upon women in lower socio-economic and marginalised communities, and those living in rural and regional areas.

 Paradoxes around choice

These intersecting barriers mean that women seeking abortion in NSW are often already in positions of limited autonomy.  Abortion on demand is currently not permitted in NSW. Yet trends in public opinion suggest that 70% of Australians thought abortion should be readily available. Not only is there widespread support for the decriminalizing of abortion, but many people believe that abortion is already legal and easily available to women.

In my own research on the social construction of women’s responsibility, this has been widely associated with a ‘post-feminist sensibility’. This is a term used to signal the ways that women are constructed as the beneficiaries of social change and progressive movements such as feminism. Such discourses present women as autonomous agents no longer constrained by any inequalities, and therefore responsible for their ‘choices’.

In focus group discussions I conducted with NSW Greater Western Sydney residents, abortion was situated within this wider narrative of postfeminist choice and empowerment. The assumption that abortion was legal and available by choice fed into punitive attitudes towards women who were perceived to have failed to exercise this ‘choice’.

Focus groups included discussions about young isolated mothers unable to cope with emotional, economic and social burden of an unwanted child. This included extreme cases in which the child was abandoned shortly after birth, leading to the infant’s death.  Common responses to such cases included:

“why on earth didn’t she have an abortion to start with”

“she did have nine months to think about other alternatives, and I don’t think abortion is illegal in Australia, so if she really really wanted to, she could have gone and looked at other services”

“I mean the challenges she faced probably wasn’t easy but it’s still her fault, I mean who else’s fault is it?”

In the face of widespread assumptions about the freedom of women’s ‘choices’, women are increasingly responsibilised to self-manage their lives, including family planning. This sits in contrast to interlocking policies and practices that curtail women’s’ ability to make such choices. The current abortion law and policy regime in NSW is an example of the cultural paradox we have created around choice.  The assumptions around ‘free choice’ clash with the lived reality of many women. What does this assumption mean for women systematically denied such choice?

It is important to remember that the proposed bill would ensure women’s right to reproductive choice at a legal level, but many social and interpersonal barriers still restrict the exercise of this autonomy. Providing safe and lawful terminations without the threat of criminal convictions represents extraordinary progress and vindication for women who have fought for decades for reproductive rights against NSW. However, for many women, the Crimes Act is not the only barrier.

Ashlee Gore is a Lecturer in Criminology and Policing at Western Sydney University. Her Post Doctorate research looks at gender construction in in criminal defenses to murder and social consciousness.

Posted by @jrostant