How New South Wales Decriminalised Abortion
Note on the Australian legal system: Australia is divided up into 6 states and 2 territories. Each state and territory has its own parliament (in addition to the Australian federal parliament) which has powers to make laws over certain subject matter, including health matters. While abortion services are funded by Medicare (Australia’s equivalent to the NHS), the laws with respect to abortion are primarily made at the state level.
Summary
In 2019, after a history-making 70 hours of parliamentary debate across the two houses of the New South Wales parliament, NSW joined other Australian states and territories in decriminalising abortion. While abortion was, prior to the passing of the Abortion Law Reform Act 2019, available in NSW thanks to legal precedent, it remained a criminal offence under section 83 Crimes Act and thus pregnant people and medical practitioners remained at risk of prosecution for procuring or administering an abortion.
History
The Crimes Act of 1900 in NSW prohibited the procurement or administration of abortion in NSW, with a penalty of imprisonment for up to 10 years. Case law developed over time to allow women to access abortions in certain circumstances: the crucial case of R v Wald in 1971 held that abortion was lawful when a medical practitioner held the ‘honest belief on reasonable grounds that [the abortion] was necessary’ to prevent ‘serious danger to [the woman’s] life, or physical or mental health’. This meant that the decision to carry out an abortion was that of the medical practitioner and not of the pregnant person seeking an abortion, which affected women’s agency. It also meant that some medical practitioners were hesitant to provide abortion care due to the risk of criminal liability.
Later, case law expanded on the permissible reasons for abortion in NSW, allowing for abortions where a pregnant woman’s mental health would face serious danger after the birth of the child, or for economic reasons. Outwith these exceptions, abortion remained a criminal offence in NSW, although was rarely prosecuted: according to The Guardian, the last criminal prosecution in NSW for an abortion offence was in 2017 when ‘a mother of five was prosecuted for self-administering a drug to cause a miscarriage’.
Law reform
Law reform advocates campaigned for many years in NSW for the decriminalisation of abortion. A previous abortion decriminalisation Bill brought before NSW parliament in 2017 was defeated, despite 77% of polled constituents supporting abortion decriminalisation.
Law reform advocates continued their fight. In 2018, with abortion clinics across the state regularly being targeted by anti-abortion activists, the NSW parliament passed a law creating ‘safe access zones’ outside of abortion clinics, which prevented people from picketing abortion clinics and harassing patients, staff and other visitors within 150 metres of an abortion clinic.
In 2019, independent MP Alex Greenwich introduced a Bill in the NSW parliament to decriminalise abortion, with the support of a number of MPs from across the political divide, as well as the backing of the NSW Pro-Choice Alliance which included more than 70 organisations such as the Women’s Electoral Lobby, Family Planning NSW and the Australian Medical Association.
The 2019 Bill repealed sections 82 and 83 of the Crimes Act, meaning abortion would no longer be a criminal offence in NSW. A new criminal offence was created which prohibits the provision of an abortion by an unqualified person (that is, abortion can only be provided in NSW by a qualified medical practitioner). The Bill allows for abortion up to 22 weeks without a reason or approval being required, and after 22 weeks, abortion is allowed where two medical practitioners determine that there are ‘sufficient grounds’ for a termination.
After a number of amendments, the Bill was passed by the NSW parliament in September 2019 and has subsequently become law.
Note: Abortion Rights Scotland thanks NSW MP Alex Greenwich for his support of the campaign for decriminalisation in Scotland.
Sources:
https://legislation.nsw.gov.au/view/html/inforce/current/act-2019-011
https://www.theguardian.com/world/2018/jun/08/nsw-passes-law-to-establish-abortion-safe-zones
https://www.alexgreenwich.com/decriminalising_abortion
https://www.clcnsw.org.au/law-reform-win-2019-abortion-decriminalised-nsw