(Oct. 9, 2019) On September 26, 2019, the New South Wales (NSW) Parliament passed the Reproductive Health Care Reform Bill 2019. The Bill, which will become the Abortion Law Reform Act 2019 (NSW), amends the Crimes Act 1900 (NSW) in order to decriminalize abortion, and sets out new provisions to regulate the conduct of practitioners with respect to terminating pregnancies.
Under section 83 of the Crimes Act, included when the Act was passed in 1900, it has been an offense to unlawfully administer a drug or “unlawfully use any instrument or other means” with the intent of procuring a miscarriage. The penalty for this offense was imprisonment for up to 10 years. The same penalty applied, under section 82 of the Act, to a pregnant woman who unlawfully used a drug, instrument, or other means with the intent to procure her miscarriage. In 1971, the District Court of NSW held that abortion is lawful when a medical practitioner holds the “honest belief on reasonable grounds that [the abortion] was necessary to preserve the women involved from serious danger to their life, or physical or mental health.” (R v Wald (1971) 3 DCR (NSW).) Further case law expanded on this, allowing for abortions to be performed if a pregnant woman’s mental health would face serious danger after the birth of a child.
A previous bill aimed at decriminalizing abortion in NSW was defeated in the Parliament in 2017.
According to some specialists, while doctors have been able to lawfully undertake abortions in NSW since the early 1970s, the potential for criminal liability meant many doctors have been reluctant to provide abortions, leading to a lack of accessible services in the state.
Under the 2019 Bill, sections 82 and 83 of the Crimes Act are repealed and a new provision is added making termination by an unqualified person an offense. (Sched. 2.) The Bill establishes new rules, in separate legislation, allowing a woman to choose to have an abortion without any approval or determination from a medical practitioner with respect to whether continuing with the pregnancy would be harmful to her health, as long as the pregnancy is under 22 weeks in duration and she gives informed consent. (Clause 5.) After 22 weeks, two specialists must determine that there are “sufficient grounds” for a termination, although the two-doctor requirement will not apply in an emergency. (Clause 6.) Under the policy framework for abortions previously established by NSW Health, the sufficient grounds requirement applied after 20 weeks and approval was needed only from one specialist.
The new legislation also provides that a medical specialist may consult a “multi-disciplinary team or hospital advisory committee” regarding a termination after 22 weeks (clause 6(4)), which reflects the existing guidelines from NSW Health.
The Bill was the subject of heated and lengthy debate in the Parliament, with changes being added during the final parliamentary stages in order to address the concerns of some opponents. According to the Australian Medical Association (AMA), many of the changes sought to codify existing medical policy, such as the consultation provision above. A further change allows doctors who have a conscientious objection to abortion to provide a person seeking a termination with approved information from the health department (clause 9(3)(a)), rather than allowing them only to refer the person directly to another doctor or health service who can provide the service, as had originally been proposed (clause 9(3)(b)). Other changes included “further defining informed consent; requiring that doctors provide ‘all necessary information’ about access to counselling; and requiring doctors to provide data on terminations to the health department within 28 days.” (Sched. 1 & clauses 7, 15.)
The late-stage changes to the Bill also included references to sex-selection abortions, requiring the health department to conduct a review after 12 months to determine whether any terminations on this basis had been conducted. (Clause 16.) Another change inserts a new section related to the “care of a person after a termination,” which states that if a termination results in a person being born, doctors are required to care for the baby. (Clause 11.)
Both the AMA and Family Planning NSW stated that the changes were unnecessary, but manageable.
The Bill was originally based on similar legislation enacted in Queensland and Victoria in 2018 and 2008, respectively. All other states and territories except South Australia have also removed abortion offenses from their criminal statutes.