NSW parliament votes down bill to decriminalise abortion
Date: June 16, 2017
Background
With abortion still considered a crime in NSW, many have labelled the current position as ‘archaic’ and ‘out of touch’ with modern societal and medical standards. According to the 100-year-old law, women who access abortion services and doctors who provide them are liable to imprisonment for up to ten years.
The Law
Sections 82 and 83 of the Crimes Act 1900 (NSW) (‘the Act’) makes it an offence for a pregnant woman, or someone assisting the pregnant woman to intentionally cause a miscarriage through administration of drugs or by other means. A penalty of imprisonment for a term of up to ten years is attached to the offences.
In addition, section 84 makes it a crime to unlawfully supply or procure any drug or instrument with the intent of causing miscarriage, with a penalty of five years imprisonment.
Sections 82-84 of the Act are interpreted in the context of a ‘Levine ruling’ and its application in R v Wald. A Levine ruling permits an abortion at any stage of a pregnancy but requires it be performed by a medical practitioner in order to be lawful. For an abortion to be allowed under a Levine ruling, there must be ‘any economic, social or medical reason’ upon which a doctor could base an honest and reasonable belief that an abortion was required to avoid a ‘serious danger to the pregnant woman’s life or her physical or mental health.’
Developments
In May 2017, the NSW Parliament voted down a bill that would have decriminalised abortion in NSW, and brought the state’s position in-step with the vast majority of the country. The bill was proposed by Greens member Mehreen Faruqi but defeated 25 votes to 14 in the state’s upper house.
While the archaic legislation is an obvious restriction to safe abortions in NSW, the cost and access issue is something experienced by women nation-wide. The combination of legality, geographical and logistical issues, timing and costs all contribute to difficulties in accessing an abortion. This difficulty is compounded for women in regional areas.
Both commentators and medical practitioners have noted that the current restrictive laws have a greater impact on women in rural communities. Regional residents are impacted by a scarcity of services as well as legislative restrictions.
Articles 12 and 16 of the Convention on the Elimination of All Forms of Discrimination against Women, to which Australia is a signatory, provides international customary law on the issue of a woman’s self-determination. Contained within them is the customary right of women to determine their own medical care. With a legislative restriction on a woman’s right to choose, commentators have been vocal in condemning the current state of NSW abortion law.
Lessons Learnt
With the law as it stands, NSW’s position is contrary to international practice, modern medical practice, community expectation and the laws of almost all other states.
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