Abortion legislation in New South Wales and Queensland is the “most severe and antiquated” in Australia and the most urgently in need of rescission, says medical specialist Caroline de Costa. That’s why, she says, New South Wales Greens MLC Mehreen Faruqi’s bill towards decriminalisation should be supported by politicians across the spectrum.
Caroline de Costa writes:
In the New South Wales Parliament on Thursday Greens MP Dr Mehreen Faruqi placed a bill on notice in the upper house to initiate debate on decriminalising abortion in the state. This is a move both bold and brave, and one long overdue.
New South Wales and my home state of Queensland are the two Australian jurisdictions most recalcitrant when it comes to abortion law. Both retain legislation around abortion worded in the archaic language of Victorian England – in fact the English 1861 Offences Against the Person Act, section 58 (rescinded in the United Kingdom itself when abortion was legalised by the Abortion Act of 1967).
Sections 82-84 of the New South Wales Crimes Act state unequivocally that unlawfully administering “any drug or noxious thing”, or using “any instrument or thing whatsoever”, for the purpose of procuring a miscarriage, is a crime liable to punishment by penal servitude; the sections cover the woman and any person performing or assisting in any way with the procedure.
These laws apply whether the woman is “with child or not” – since they were written more than a century before the introduction of reliable methods of detecting early pregnancy. They were also written when gynaecological surgery and anaesthesia were in their infancy, and at a time when doctors had yet to learn the importance of washing their hands before operating. They were written ostensibly to protect women from death or chronic disability resulting from traumatic attempts at abortion by untrained or poorly trained operators. In this they failed dismally. Abortion continued as a major cause of maternal mortality and morbidity in the UK until the passage of the 1967 Act, and in Australia until the Menhennitt and Levine rulings (1969, 1971) provided case law that gave some protection to doctors performing abortions – though abortion remained a crime.
Medical practice has evolved way beyond the wildest dreams of 19th century lawmakers, in the matter of abortion as in every other field. Surgical abortion, performed by trained practitioners in accredited clinics with current anaesthetic and aseptic techniques, is a day case procedure with a mortality rate of almost zero and a low rate of complications. Medical abortion using the drugs mifepristone (RU486) and misprostol can take place in a woman’s own home, provided she is well supported, meets certain criteria in regard to her health, and has access to emergency care if needed. In 2014 abortion is a health issue for Australian women – and an important one. Around 85,000 surgical abortions at least are performed in Australia each year; numbers of medical ones are at present unknown, but would certainly exceed 20,000 per annum.
Yes, in 2014 safe abortion is accessible to many New South Wales women. So why the need to change the law?
Because it’s not easily available to all women, and for a significant number, especially rural women, there can be great difficulties of access. Services tend to be confined to large urban areas; few abortions are done in the public sector; costs in the private sector can be high, especially combined with the costs of travel and childcare that many women face. A significant number of New South Wales women are known to travel to Victoria each year to access abortion services in that state.
At present, it is only the interpretation of the Crimes Act by the courts which enables a woman to procure an abortion “lawfully”. Both women and their doctors remain vulnerable to prosecution for unlawful abortion .
Most New South Wales general practitioners want to be able to refer women requesting abortion to safe accessible services, but most New South Wales GPs do not practise abortion themselves. A major reason for this, shown in several studies of NSW and Queensland doctors, is uncertainty about the law around abortion and fear of prosecution. Thus abortion has remained stigmatised as much within the medical profession as in the general population.
The Australian Capital Territory decriminalised abortion law in 2002, placing regulations for the performance of abortion in health legislation. Victoria largely decriminalised their law in 2008. Tasmania followed in 2013 with legislation that also seeks to prevent harassment of women attending clinics for care, an initiative that can hopefully be introduced in New South Wales as well.
Western Australia, South Australia and the Northern Territory have all reformed and liberalised their abortion laws in recent decades but in all three abortion remains a crime. The legislation in New South Wales and Queensland is the most severe and antiquated, and the most urgently in need of rescission. Sections 82-84 must be completely removed from the New South Wales Crimes Act and any regulations considered necessary for the safe care of women incorporated into health legislation.
Dr Faruqi’s efforts should be supported by women and men from right across the political spectrum, as has happened in other state parliaments in recent years and in the Federal Parliament in 2006 when RU486 restrictions were overturned. Abortion legislation in New South Wales needs to be in step with 21st century medical practice and the health needs of New South Wales women.
Caroline de Costa is Professor of Obstetrics and Gynaecology and Director of the Clinical School at James Cook University School of Medicine, Cairns Campus in North Queensland.
21st century medical practice and the health needs of New South Wales women need to get into step with our human rights obligations “to provide legal protection before as well as after birth” for every child, including children at risk of elective abortion.
The Universal Declaration of Human Rights has “recognized” that every child is entitled to “legal protection before as well as after birth”(See UN Declaration on the Rights of the Child; also UN Convention on the Rights of the Child).
True justice requires that elective abortions be recognized and treated not as idiosyncratic, personal ‘choices’ but as abusive practices, as human rights violations perpetrated by individuals and involving the complicity of politicians, judges and others.