Doctors and pregnant women still risk prosecution in two Australian states for the crime of abortion, with one advocate warning of medical access dictated by “postcode lottery”.
NSW and Queensland are the only jurisdictions where abortion is criminalised. Judicial precedents offer some protection, and police are reluctant to prosecute, but the legal ambiguity arguably restricts free access to pregnancy termination and influences public perception.
To remedy the murkiness, Greens NSW have begun a push for full legalisation, with vocal support from advocates in Queensland.
In a recent speech in state parliament, Greens NSW health spokeswoman Dr Mehreen Faruqi decried the technical criminality of abortion as ‘archaic’ and ‘shameful’.
“Shamefully, New South Wales languishes behind other States. Century-old outdated and archaic laws govern us—laws that the people of New South Wales neither want nor deserve,” Dr Faruqi said.
“Our right to body autonomy in health care must not be a crime. It is time for New South Wales to stand up for women’s reproductive rights. It is time for New South Wales to stand up for the right to medical privacy. Abortion law reform in New South Wales is long overdue.”
Technically a crime
In NSW and Queensland, it is theoretically possible for any doctor who performs or induces an abortion, by surgery or by providing an abortion drug, to be charged with a crime.
If the doctor cannot successfully argue a defence based on an honest, genuine and reasonable belief in the risk of “serious danger” to the mother’s physical or mental health (or in NSW, with regard to her economic and social pressures as well), a term of imprisonment can theoretically be imposed. More information here.
In 2006, Dr Suman Sood was convicted in NSW of inducing an unlawful abortion by administering abortion drugs.
It is also theoretically possible for a woman in either state who takes a legally prescribed abortion pill, such as RU486, to be convicted of inducing an abortion. In 2010, a Cairns couple were charged in relation to the use of these pills, but both were acquitted by a jury.
A criminal law expert told The New Daily abortion is effectively legal in NSW and Queensland, but that its technical status as a crime is important.
“As a matter of practice, abortion is available on demand, but I certainly understand, and perhaps sympathise, with the argument that that’s not good enough,” Armstrong Legal senior associate Andrew Tiedt said.
“Language is important and language does shape perception.
“Does the law reflect community sentiment? Well, I’m not sure it does.”
In 2004, 65 per cent of Australians approved of the termination of unwanted pregnancies via surgery and 62 backed the provision of abortion pill RU486, Roy Morgan reported.
The law restricts access
An abortion advocate said the legal ambiguity in Queensland impedes access.
“Where there are questions of legality, you’ll find that doctors and services are reluctant to provide abortion procedures because they are unsure of how it fits within in the law,” Children by Choice spokeswoman Kate Marsh told The New Daily.
“Particularly in Queensland public hospitals, it is quite an issue. It’s estimated that only around 1 per cent of Queensland’s abortions are provided through public hospitals, which is an incredibly small number.”
As a result, most abortions are performed in private clinics, where costs are higher.
“The private clinics are excellent services … Very professional and very safe, but they do have high out of pocket costs associated with them, and for some women that’s just beyond their financial situation,” Ms Marsh said.
Children by Choice has advocated for full legalisation since 1972. Its spokeswoman also pointed out the need for legal uniformity across the states and territories — including protestor exclusion zones outside abortion clinics.
“At the moment, it’s a bit of a postcode lottery for women.”
‘It must not be legalised’
A long-time abortion opponent told The New Daily the push for decriminalisation was “utterly dismaying”.
The spokeswoman for Right to Life Australia, an organisation unaffiliated with any religious or political groups, argued that abortion is inherently immoral; that legalisation would contradict laws against infanticide (killing a baby after birth); that it would increase the rate of abortions; and that more disabled foetuses would be destroyed as a result.
“Don’t. Don’t do it,” Right to Life Australia president Margaret Tighe said.
“None of us have the right to kill our children.
“I really call it the silent holocaust.”