A History of Abortion Reform in NSW

By Emma Goldrick  

New South Wales Parliament has introduced a controversial bill to decriminalise abortion, a medical procedure still enshrined within the states Crimes Act 1900. Legislative reform pertaining to abortion in NSW was first brought to parliament almost three years ago by Dr Mehreen Faruqi, however, was unsuccessful in the upper house. The pending reform has resurfaced in parliament through the introduction of a cross-party bill. Independent member of parliament Alex Greenwich, who introduced the bill to parliament, claims to have done so on behalf of his grandmother Jacky, one of the many women to have “fought long and hard for this reform over many decades”. The historical cry for reproductive freedom in NSW has been a lengthy process, with the efforts of Judge Aaron Levine and Mehreen Faruqi paving the way for Alex Greenwich’s bill to be received with optimism. 

Judge Aaron Levine and the test of Lawfulness

In 1971 a ruling made by Judge Aaron Levine in NSW District Court drew attention to the fact that abortion itself was not a crime in the NSW Crime Act, but that instead only ‘unlawfully’ performed actions were punishable. Levine highlighted the ambiguity of the states criminal code and called for clarification in order to prevent the ill prosecution of women. Levine emphasised that the word ‘unlawfully’ meant that actions to procure an abortion could technically be undertaken in a lawful manner and therefore not every abortion attempt in NSW was considered criminal. Furthermore, Judge Aaron Levine stated the ‘lawfulness test’ as; 

“It would be for the jury to decide whether there existed in the case of each woman any economic, social or medical ground or reason which in their view could constitute reasonable grounds upon which an accused could honestly and reasonably believe there would result in serious danger to her physical or mental health”.

Since the introduction and clarification provided by Judge Aaron Levine, the lawfulness test has been further reinforced in the NSW Ministry of Health’s policy framework for terminations in public health organisations. Due to the efforts of Judge Aaron Levine, prosecutions significantly reduced after 1971, despite abortions still being entrenched within the states criminal code. 

Mehreen Faruqi’s “End12” 2017 bill 

Dr Mehreen Faruqi’s 2017 bill to remove Division 12 of the Crimes Act, that stated abortion as a criminal offence, was a hallmark reform to have never previously been discussed in the state since its conception in 1900. Mehreen further launched the End12 Campaign in association to her bill to decriminalise abortion, a campaign that mobilised individuals around the state to stand in unity against an outdated law still impeding reproductive freedom. The End12 Campaign proved that the community supported the removal of abortion within the Crimes Act, whilst it also proved that the conservative right of parliament still held the majority sway. 

The bill's intent was to remove offences related to abortion and its obtainment from the Crimes Act 1900 and common law. The campaign and later bill called for the enactment of 150-metre safe access zones around abortion clinics in order to prevent harassment of staff and patients by ‘pro-life’ campaigners. The bill also required doctors who objected to the seeking of abortion or who were unwilling to have involvement in the procedure the legal obligation to refer the patient to a willing doctor. 

When Mehreen pushed to reform abortion legislation in NSW, the legislative council was given a conscience vote, which proved the bill unsuccessful. Mehreen emphasised her hurt when only one member of the Coalition actually spoke on the bill, despite all members voting against it. Mehreen stated in an article written for JUNKEE “we were told it's not the right time...this is, and always has been complete bullshit. This narrative is simply an excuse for politicians who actually view abortion as a crime”. 

While Mehreen’s bill saw cross-party support namely from prominent figures such as Labor MP Penny Sharpe, the conservative majority still prevented the passing of the bill.Sharpe, who publically supported Dr Faruqi’s bill stated that “Abortion should be regulated in the same way as all other surgical and medical practices. Our current law is archaic and unclear”. 

The Reproductive Health Bill 2019

Learning from Dr Faruqi’s attempt to reform abortion in NSW, Alex Greenwich has introduced The Reproductive Health Reform Bill 2019, to be debated and voted on this coming week. Alongside Greenwich, the bill also has been co-sponsored by 15 other ministers from a combination from all major political parties. Greenwich’s bill has received support from members of parliament and the public across the whole political spectrum alongside substantial support for the Australian Medical Association and an array of pro-choice organisations across the country and internationally. Greenwich also claims that the construction of this bill was done in close alignment to that of the Queensland model after the Queensland Law Reform Commission’s report into abortion decriminalisation and that of Dr Faruqi’s previous attempt in NSW. 

The bill seeks to remove abortion from the Crimes Act and in doing so, define it as a medical procedure within its own, separate legislation. The bill also seeks to remove clauses stating that a woman and her doctor can be convicted of an unlawful abortion and imprisoned up to a decade in the state of NSW. 

The act will establish that having an abortion is not a criminal offence in NSW, allowing for abortion up to 22 weeks gestation along with after 22 weeks with the consent of two willing doctors. The bill has received backlash regarding the clause stating an abortion would be possible after 22 weeks with two doctors consent. However, doctors have spoken out claiming this clause to be just and appropriate as it takes into consideration the timing of routine ultrasounds at 18-20 weeks which is the earliest point a doctor can detect a severe genetic condition. 

The bill also seeks to enact a new criminal offence under the Crimes Act for anyone who assists in termination without authorisation. 

The bill's requirement has been marked as essential by doctors and medical practitioners in the state for decades, as they called for greater clarity in the laws ambiguity and the possible criminality of, particularly actions.  Speaking directly to this concern expressed by medical professionals Greenwich claimed;

 “Our bill ensures that women will have access to safe and legal abortions and ensures that doctors have the legal clarity that they have long sought”. 

While the bill has been received with an incredible amount of support, equally has it been subjected to criticism. Finance Minister Damien Tudehope claimed the legislation to be an ‘unjustt and illiberal law’ while many church leaders have also claimed the legislation to be ‘rushed through parliament’. 

However, the bill has also received unprecedented support from particular political parties and MPs, such as The Nationals MP Trevor Khan, who opposed the 2017 bill. MP Trevor Khan is now one of the parliamentary members to co-sponsor the current proposed legislation reform, stating “I always believed it would need to come back and finally be revived because the law is ambiguous”. 

Mehreen Faruqi believes that politicians have previously persisted in preventing reproductive rights because “when doctors, lawyers, nurses, civil libertarians, anti-domestic violence campaigners and the public see it so clearly? I believe it is because they don’t face the consequences of their actions, and they have never had to face them.” However, with the pending Reproductive Health Bill, MPs will be required to face ‘their demons’ when the conversation of bodily autonomy is spoken openly in parliament this week.  

According to a 2010 study published by the Medical Journal of Australia, 87% of Australians believe abortion should be lawful and decriminalised in the first trimester. With NSW citizens continually protesting for their rights and beliefs to be reflected by the law, The Reproductive Health Bill 2019 is entering parliament with strong public and political backing. The bill has received immense support, with Ms Berejiklian and her opposition leader Jodi McKay both indicating their intent to vote favourably for the bill. All MPs will be given a conscience vote on the bill, just like they were in 2017.