There was applause in the lower house of the NSW Parliament on Thursday, September 26, as the Abortion Law Reform Act 2019 passed its final hurdle after weeks of protests and more than 70 hours of debate in both houses.
Premier Gladys Berejiklian was not present for the final vote.
Introduced on August 1 by independent MP Alex Greenwich, it first passed the lower house by 59 votes to 31 on August 8. A number of amendments were debated but most were defeated, a notable exception being Attorney-General Mark Speakman’s amendment to require informed consent.
The bill then passed the upper house 26 votes to 14 on Wednesday, September 25, following nearly 40 hours of debate – reportedly the third longest debate in the state’s Legislative Council since its inception in 1824.
Gladys Berejikllian: AWOL for the vote.
The bill removes abortion from the criminal code and allows abortions on demand up to 22 weeks and abortions at any stage after 22 weeks to birth if two doctors agree that, “in all the circumstances, there are sufficient grounds for the termination to be performed”. Sufficient grounds include “current and future physical, psychological and social circumstances”. This gives a considerable degree of latitude to decide that there are sufficient circumstances for an abortion.
The upper house passed 25 of 102 proposed amendments, including a name change from the Reproductive Health Care Reform Bill 2019 to the Abortion Law Reform Act 2019.
The most significant of those amendments requires a medical practitioner to provide the same medical care and treatment to a baby born as a result of an abortion as is owed to a baby born other than as a result of abortion. So, a doctor has the same duty of care to a baby born alive from an abortion as to any other baby born alive.
Further significant amendments were to require informed consent from the woman or girl on whom the abortion is to be performed; requiring that doctors to provide “all necessary information” about access to counselling for late-term abortions (that is, after 22 weeks of gestation); and requiring doctors to provide data on abortions performed to the Health Department within 28 days.
The Act also requires the Health Department to conduct a review after 12 months to determine whether there have been any abortions performed on the basis of sex selection and provide a report that includes recommendations about how to prevent sex-selection abortions.
Doctors who have a conscientious objection to abortion can provide a woman seeking an abortion with approved information from the Health Department, rather than referring directly to another, non-objecting doctor. Whether this will protect a doctor’s freedom of conscience will depend, of course, on what information is provided by the Department of Health; which, in turn, depends on who has input into what that information includes.
An amendment to the Crimes Act makes it an offence to coerce a woman or girl to have an abortion, an offence punishable by imprisonment for two years or a fine of 50 penalty units, or both.
Only medical practitioners with specialist registration in obstetrics or gynaecology are allowed to perform abortions after 22 weeks.
The Act provides that the secretary of the Ministry of Health may issue guidelines about the performance of terminations and that a registered health practitioner (a nurse or pharmacist) must perform the termination in accordance with any such guidelines. This provision should also apply to medical practitioners (doctors).
Such guidelines could be invaluable in regulating the conditions under which abortions can be performed. The current guidelines for abortions in NSW public hospitals require that:
- Appropriate and adequate information be provided to patients in order for the patient to make an informed choice about treatment.
- All women seeking a termination of pregnancy must be offered counselling. Evidence of counselling must be documented as having been offered and a copy of the counsellor’s report provided to the treating medical practitioner.
- Written consent of the woman must be obtained by the treating medical practitioner before a pregnancy termination is performed.
- Women must be provided with sufficient information about the treatment options, benefits, possible adverse effects or complications, and the likely result if the treatment is not undertaken, in order to be able to make their own decisions about undergoing the termination.
- Public health organisations ensure that no staff member is disadvantaged because of a conscientious objection to termination of pregnancy.
- A medical practitioner has a legal duty to warn a woman of any material risks to her physical or mental health from the proposed termination.
- Where applicable, the woman must be informed of the possibility of an infant being born exhibiting signs of life and the ramifications should this eventuate.
- Where a medical termination is performed, the extent and duration of any signs of life should be recorded and what actions were taken.
If these requirements are included in any guidelines issued under the Act, the conditions under which abortions can be performed in NSW will go some way to ensuring the health of women and humane care for any baby born alive.
Where to from here?
The pro-life forces are to be congratulated on the amendments achieved. In Victoria in 2008, the proponents of the Victorian Abortion Law Reform Act were adamant that there were to be “no amendments” to the bill: “they stressed that it was extremely important to accept no amendments”. (See “Roadmap to Abortion Law Reform: Conversations with some of the key organisations and individuals involved in the campaign for abortion law reform in Victoria”, Women’s Health Action, NZ)
Despite the bill being fast-tracked through the Parliament without proper public consultation, pro-life supporters rallied quickly and, within 48 hours, more than 13,000 submissions were made to a rushed five-day parliamentary inquiry and thousands had signed petitions opposing the bill. This overwhelming community engagement helped achieve the amendments to the bill.
While these amendments are a positive outcome, the Act still contains serious flaws. These amendments were rejected: to require pain relief for the unborn baby; banning the sale and trafficking of fetal tissue; mandatory reporting of all requests to perform an abortion on a person under 16.
And further amendments are needed to require that full information about all aspects of abortion and counselling must be provided to every woman seeking an abortion to ensure informed consent; further protection of doctors who have a conscientious objection so they can advise a woman or girl seeking an abortion of their considered medical judgement of the risks to her physical and/or mental health; and for medical practitioners to continue to be criminally liable if they perform an abortion in breach of the Act.