The Reproductive Health Care Reform Bill 2019 (termed the ‘Abortion Bill’) was recently passed by Lower House. This article begins by outlining the crime of abortion and case law developments in the area. It then discusses the substantive elements of the Reproductive Health Care Reform Bill, noting amendments made prior to it passing through the Lower House.
The Crime of Abortion
It is estimated that one in four Australian women will have an abortion in their lifetime. Despite this, abortion remains a crime in New South Wales under Part 3 Div 12 (ie ss 82 and 83) of the Crimes Act 1900 (NSW). It is punishable with up to 10 years imprisonment. This law continues to be enforced – a woman two years ago was prosecuted under the Act for self-administering an abortion drug.
Case law has developed to create a loophole to the criminal act of abortion. At general law, doctors are permitted to terminate a pregnancy where they hold an honest belief that the pregnancy poses a risk to the life or health (including mental health and socioeconomic stress) of the woman.
The Reproductive Health Care Reform Bill 2019 (termed the ‘Abortion Bill’) allows for abortion up to birth. The long title of the Bill reads as follows: “An Act about reforming the law relating to terminations of pregnancies and regulating the conduct of health practitioners in relation to terminations.”
Prior to 22 weeks, pregnancy can be terminated for any reason. Following 22 weeks gestation, the specialist medical practitioner to perform the abortion and an additional specialist medical practitioner must both consider, in light of all the circumstances, that the termination should be performed. Circumstances that must be considered include:
- All relevant medical circumstances;
- The current and future physical, psychological and social circumstances of the person; and
- Any professional standards and guidelines that apply.
The Legislative Assembly passed the Reproductive Health Care Reform Bill on 8 August, with 59 members voting in favour and 31 against. This followed several days of debate and seven amendments to the Bill.
Outlined below are the key amendments:
- A medical practitioner must assess whether it would be beneficial to discuss counselling about the proposed termination with the patient and provide options if the patient is interested;
- Doctors performing a termination after 22 weeks and consulting doctors must be ‘specialist’ medical practitioners (eg specialist in obstetrics, specialist in gynaecology or a medical practitioner who has additional experience/qualifications in obstetrics);
- A doctor performing a termination is to obtain informed consent from the patient before conducting the procedure.
It has been contended that these amendments will result in ‘unnecessary hurdles’ for women seeking to terminate a pregnancy. However, the requirement for a doctor to obtain informed consent prior to a procedure is already a well-established legal doctrine traversing the medical profession. It is therefore difficult to see how this inclusion creates a further barrier to abortion. In addition to this, the requirement for a doctor to discuss counselling with a patient if they deem it beneficial does not generate any further obligation on behalf of the patient. The patient is not required to undertake counselling if they are not interested. After 22 weeks gestation it is also common practice to have engaged specialist medical practitioners.
While the Reproductive Health Care Reform Bill seeks to align New South Wales’ legislative framework with the likes of Victoria, it must still pass through Upper House before abortion is no longer criminal. Upon enactment of the Act, Pt 3 Div 12 of the Crimes Act 1900 will be repealed and replaced with a section dealing with “termination of pregnancies by unqualified persons”.