01 August 2019
(Bills - Second Reading Speech, 1 August 2019, Legislative Assembly, NSW Parliament)
I move, that a bill be introduced for an Act about reforming the law relating to terminations of pregnancies and regulating the conduct of health practitioners in relation to terminations.
The Reproductive Health Care Reform Bill recognises that the best outcomes in women’s reproductive health care are achieved when abortion is treated as a health matter not a criminal matter, and women’s right to privacy and autonomy in decisions about their care is protected.
In New South Wales, it has been a criminal offence to procure an unlawful abortion since 1900, when the crimes act was first written. The law has not changed since then. This was a time when women could not vote, and because they could not stand, there were no women in this Parliament. Now, not only can women vote and stand for office, our state has a female Premier, a female leader of the opposition and a female governor.
A wide range of stakeholders have been calling for decriminalisation and clarity in the law around medical procedures that terminate pregnancies. At the outset I would like to acknowledge the work of the NSW Pro Choice Alliance – represented by Wendy McCarthy and others here today – made up of 72 of the leading voices in the health, legal and community sectors. The alliance developed an agreed policy for a legal framework and principles to guide the preparation of this legislation. In early March I publicly announced I was drafting legislation.
Following this, a working group of members of both houses formed to look at the way to achieve reform in line with this policy. This working group included the Honourable Trevor Khan, the Honourable Penny Sharpe, the Member for Summer Hill Jo Haylen, and importantly had the involvement and oversight of the Minister for Health who supports this bill, and who I would like to thank for his guidance throughout this process.
I acknowledge the 15 cosponsors from across the Parliament and state – this bill has more cosponsors than any other bill in the Parliament’s history and is the first co-sponsored bill introduced into the legislative assembly!
The bill that we have drafted is in line with what all members of the alliance including the Australian Medical Association have called for. The AMA was consulted directly on provisions and has come out strongly in support of the bill. In a statement issued to all members the AMA stated:
“NSW is the last state in Australia to decriminalise abortion and this has placed the women and doctors here under a different and stigmatised legal arrangement to other states. AMA (NSW) has previously recognised that the retention of abortion in the Crimes Act is not appropriate for doctors or patients. We believe the proposed law will ensure access to appropriate care. AMA (NSW) encourages the NSW Parliament to pass the bill.”
In our state’s 21st Century health care system, pregnancies are safely terminated in licensed health care facilities and by registered doctors. But the women, doctors and health care professionals obtaining, conducting and assisting in these vital health care services are operating under an out of date law from the 1900s that creates a risk that they are committing a crime with penalties of up to 10 years in prison.
Our crimes act still makes it a criminal offence to procure an unlawful abortion. The framework that enables pregnancies to be terminated does not come from the law, but from common law interpretations of what ‘lawful’ and ‘unlawful’ terminations constitute.
The courts have ruled that terminations are lawful if they protect a woman from serious danger to her life or physical or mental health, taking into account economic, social or medical reasons. The first ruling to allow for lawful terminations was in 1971 by Justice Levine in R v Wald and I acknowledge that today in the gallery we have some of Justice Levine’s family including his daughter-in-law, and his grandson and his wife. I pay tribute to Justice Levine’s contribution.
There is no clarity beyond this interpretation in the law itself and determining whether each termination meets the common law criteria for ‘lawful’ remains a grey area in the law.
This has a number of poor consequences for women trying to access reproductive health care.
The courts can consider any termination that occurs in this state on a case-by-case basis, and assess each woman’s personal situation to make a determination. The threat of prosecution of women and health care professionals is real. As recently as August 2017, a Blacktown mother of five was prosecuted for self-administering a drug to cause a miscarriage.
If the law is left unchanged, the courts can continue to interpret what does and does not constitute a lawful termination with no guidance from the parliament in over one hundred years.
This bill finally provides this guidance.
The threat of conviction can obviously create fear and stigma for women wanting an abortion and reluctance by health practitioners to provide services or even advice to women about their options. In turn this prevents many facilities from providing a full range of reproductive health care services. This has the biggest impact for women in regional areas where there are already limited health care choices.
The law surrounding terminations is no longer fit for purpose and need to be modernised. Since 1900 safer procedures for inducing terminations including early medical terminations – that is drug induced terminations – have become available. There has also been a shift in community attitudes with the vast majority of the population supporting access to safe and lawful terminations.
New South Wales is now the only place in Australia that has not decriminalised its laws or clarified what a lawful termination constitutes, leaving women in this state with fewer rights to reproductive health care than their counterparts in the rest of the country.
The Reproductive Health Care Reform Bill 2019 will regulate the practice of terminating pregnancies in New South Wales, bringing the law into line with clinical practice, community attitudes and the rest of the country.
The bill will provide a framework for lawful and unlawful terminations in a new standalone act.
Provisions in the bill are based on those enacted in Queensland and Victoria, which came out of extensive law reform commission processes, adopting the principles of ready access to early stage terminations, and use of current common law provisions with additional oversight from a second doctor for later stage terminations.
Specifically the bill ensures that all terminations are lawful for women up to 22 weeks pregnant on request if performed by a registered doctor. After this, a termination is only lawful if two doctors consider that the procedure should be performed after considering all of the relevant medical circumstances and the woman’s current and future physical, psychological and social circumstances.
The additional provisions after 22 weeks recognise that terminations at this later stage often involve disadvantage, distress, complexities and higher risks to the pregnant woman. The inclusion of a second doctor provides stronger safeguards than what is currently in place under common law provisions. 22 weeks was chosen with the advice of the AMA and follows the recommendations of the Queensland Law Reform Commission and is in line with the Queensland act. It is also supported by Royal Australian New Zealand College of Obstetricians and Gynaecologists.
Also, in line with consultation with the AMA and RANZCOG, these additional requirements are waived in emergencies where a termination might be required quickly to save the woman’s life or to save another foetus.
Under the bill, terminations can only be performed by qualified doctors regardless of whether the procedure is surgical or medical. The bill provides for health care professionals – namely nurses, midwives, pharmacists, Aboriginal and Torres Strait Islander health practitioners and other doctors – who can assist with terminations, which includes dispensing, supplying or administering a termination drug.
Most importantly, the bill expressly states that a woman cannot commit an offence for consenting to, assisting in, or performing a termination on herself.
Women procuring the termination of a pregnancy, doctors performing terminations and health care professionals assisting in terminations will no longer be at risk of committing a criminal offence, with all offences relating to the procurement of an abortion removed from the crimes act. The bill also expressly abolishes any common law rules relating to the offences for procuring an abortion.
However a new safeguard for women will be introduced through the insertion of a clause in the crimes act that will make it a criminal offence for a person who is not a doctor to perform a termination or for a person to assist in a termination not performed by a doctor. Penalties will be up to seven years imprisonment. This will protect the community from any potential emergence of backyard abortion clinics. The offence is aimed at capturing people who are exploiting, profiting, or harming women in vulnerable situations. A safeguard has been included in the bill to require the Director of Public Prosecutions to institute or approve any proceedings in court for this offence to ensure that it does not criminalise anyone who is genuinely trying to help a pregnant woman.
As is currently the case, doctors will not be forced to perform or participate in terminations if doing so would conflict with their values or personal beliefs, except in life threatening emergencies. The right to conscientious objection is already provided for in a number of Australian codes of conduct and ethical standards for health practitioners and these standards are reflected in this bill.
The bill recognises the right for doctors to practice in accordance with their values while providing provisions to ensure that women’s health care is not impeded. When a woman seeks a termination or advice about a termination from her doctor, if that doctor has a conscientious objection the bill creates an obligation on them to refer the woman or transfer her care to another doctor or health care provider which the doctor believes can provide the service and advice about it.
The existing Australian Medical Board Good Medical Practice Code of Conduct states that doctors must not use their objection to impede access to legal treatment, and the AMA’s Position Statement on Conscientious Objection requires doctors to take whatever steps are necessary to ensure the patient’s access to care is not impeded.
It is well recognised that these codes mean doctors should refer patients to other doctors and services where patients can receive the care they receive. This conclusion was made in a recent article posted on the Royal Australian College of General Practitioners website on 28 November 2018 by Doug Hendrie. The Royal Australian New Zealand College of Obstetricians and Gynaecologists has emphasised that health practitioners with a conscientious objection owe a duty of care to their patient to refer them to other health practitioners or services where a woman is able to receive the health care she needs.
It is vital that this bill, which seeks to ensure women have access to safe and legal abortions in no way limits or reduces that access.
The termination of a pregnancy is a time critical procedure in which even small delays can significantly impede available health care options including the type of procedure available to a woman, the setting in which that procedure can take place and potential complications.
Failure to refer a patient would disproportionately disadvantage women in rural and regional areas who already have limited health care choices and may not know of doctors or facilities that provide a full range of reproductive services, as well as women who experience domestic violence. Victims of domestic violence seeking to hide both their pregnancy and their wish for a termination from an abusive partner will have very limited capacity to find alternative services if their GP refuses to provide a referral.
Making a referral is not the same as providing or participating in treatment, it is about ensuring women can access the care they need without obstruction. The conscientious objection provisions in the bill reflect those in Queensland and Victoria and is consistent with South Australia, Tasmania and the Northern Territory.
While the bill does not include penalties, noncompliance could have professional disciplinary consequences.
A statutory five year review has been included to ensure the bill achieves its purposes.
The bill is closely based on the reforms enacted in Queensland late last year which came out of a long and extensive law reform commission inquiry that assessed over a thousand submissions and involved public hearings. There is no need to duplicate this process given all the relevant issues have been canvased.
Women, health care professionals and the wider community have been calling out for these reforms for many years. The health care profession in particular has stated that certainty around the circumstances in which terminations are lawful is needed to protect doctors who work to provide their patients with the best health care available. This bill achieves these outcomes.
Evidence shows that the bill will not change the number of terminations performed.
The Queensland Law Reform Commission assessment of available data concluded that the rate of pregnancies terminated among women of reproductive age – that is 15 to 44 years – has been declining over the last two decades across Australia.
It is widely accepted and recognised by the World Health Organization that unrestrictive laws don’t increase the rate of terminations performed and correspondingly restrictive laws don’t decrease the rate of terminations performed.
Pregnancies are currently terminated safely in New South Wales by qualified registered doctors in licensed health care facilities. This is a medical procedure that is currently inappropriately placed in the crimes act. Our laws are out of step: they don’t reflect clinical practice, any need for safeguards or community values. Our current 1900 laws do not provide women in New South Wales with the same dignity, respect or access to safe abortions as women in Queensland, Victoria and the rest of the country.
In decriminalising abortion and regulating this medical procedure, this bill will modernise our laws and give, long called for certainty to health care professionals and ensure that women in New South Wales finally have the right to choose without the stigma and risk of a potential criminal conviction.
Women have fought long and hard for this reform, over many many decades.
My Grandmother Jacqui was one of those women.
When I was ten, I clearly remember Jacqui (she didn’t like being called grandma) sharing with me a letter she had written to then US President George HW Bush, outraged at his anti-abortion stance. This was my first experience with any form of political activism and Jacqui instilled in me the importance of women, not politicians, having control of their own bodies. My grandmother passed away this year, she did outlive President George HW Bush. Today would have been her 99th birthday, and I dedicate this speech to her.
I inherited her quiet determination, and it is with her quiet determination, that I will work with all members of this parliament to see this bill pass.
To the women here today and across New South Wales, I am sorry it has taken so long to achieve this reform. Members, let’s not delay anymore: now is the time for the Parliament to come together to ensure women and their doctors are appropriately protected under the law.
I commend the bill to the house.
For more information and to read the bill click HERE